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Difference between revisions of "Mental Health Act: Consent to Medical Treatment (14:VI)"

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Mental Health Act: Consent to Medical Treatment (14:VI) (view source)

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A recent decision in Nova Scotia regarding guardianship found that some of the central provisions of the Incompetent Persons Act, R.S.N.S., 1989, c. 218 are unconstitutional (Webb v. Webb, 2016 NSSC 180). This legislation allows for the appointment of a guardian where a person is found incompetent (similar to the PPA), but it was found that the legislation was overbroad, not allowing a court to tailor a guardianship order so that a person subject to that order can retain the ability to makes decisions in respect of those areas in which they are capable. This may have an impact on the PPA in BC in the future
A recent decision in Nova Scotia regarding guardianship found that some of the central provisions of the Incompetent Persons Act, R.S.N.S., 1989, c. 218 are unconstitutional (Webb v. Webb, 2016 NSSC 180). This legislation allows for the appointment of a guardian where a person is found incompetent (similar to the PPA), but it was found that the legislation was overbroad, not allowing a court to tailor a guardianship order so that a person subject to that order can retain the ability to makes decisions in respect of those areas in which they are capable. This may have an impact on the PPA in BC in the future


The ''Adult Guardianship and Planning Statutes Amendment Act'' was to come into force as of September 2011; however, not all planned changes in fact occurred at that time. The planned changes could in the future allow an application for court appointment of a guardian to be made if the  requirements of s 5 of Part 2 of the ''Adult Guardianship Act'' are met, including two medical assessment reports. See [[Introduction to Adult Guardianship (15:I) | Chapter 15 – Guardianship]] for more information, and check the current version of the AGA to see which sections are currently in force.  
Sections 50 to 59 of the Adult Guardianship Act (APA) allow for a person from a designated agency to make unilateral decisions which affect the adult’s support and assistance without their consent, including treatment and removal from a residence. For instance, section 56 allows a person from a designated agency to apply for a court order which can determine an adult’s mode of treatment. Furthermore, section 59 gives a person from a designated agency broad powers in regard to an adult, such as enter their premises without a warrant, remove them from their premises and convey them to “a safe place”, and provide emergency medical care, so long as it is within the context of an emergency situation or the adult is incapable of providing consent.  


The facility could also proceed under the HCCFA by declaring the patient incapable of consenting, using a temporary substitute decision maker  (TSDM) and/or claiming that a state of emergency exists such that the patient must be treated without his or her consent.
The facility could also proceed under the HCCFA by declaring the patient incapable of consenting, using a temporary substitute decision maker  (TSDM) and/or claiming that a state of emergency exists such that the patient must be treated without his or her consent.
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