Our previous article “Health Care Decision-Making” described the rules that apply when a person is not able to make their own decisions. But what happens if there is a disagreement about a decision that is being made for that person?
The answer depends upon who is making the decision. When an adult is not capable, those health care decisions fall to a substitute decision maker. In British Columbia, there are three types:
- a person named by the adult as a ‘representative’ in Representation Agreement;
- a person appointed by the Court as the ‘committee’ of the adult under the Patients Property Act (similar to a court appointed guardian); or
- a person selected by the health care provider to be the ‘Temporary Substitute Decision Maker’ (“TSDM”) according to a prioritized list of relatives under the Health Care (Consent) and Care Facility (Admission) Act.
If you disagree with a decision that is being made for the adult by the substitute decision maker, you may have the right to ask a court to review that decision. The first step is usually to give notice of your objection to the decision maker, to the health care provider and to the Public Guardian and Trustee (a public office that is mandated to protect persons who are mentally incapable).
There are sometimes also disputes about the decision of who should act as the TSDM (if there is no Representation Agreement and no court appointed committee). The default order of the prioritized list is:
- the adult’s spouse,
- brother or sister,
- any other relative,
- close friend, and then,
- a person related to the adult by marriage.
The selected person must also:
- be over 19;
- have been in contact with the adult during the preceding 12 months;
- have no dispute with the adult;
- be capable of consenting; and
- be willing to comply with certain duties (similar to those imposed on a representative).
It is not always clear who should be selected. For example, multiple adult children would have an equal right to be selected. Or, it may not be clear whether the proposed person has a “dispute” with the adult. It is not certain which criteria a health care provider will apply to choose the TSDM.
Whether your disagreement is with a proposed decision or with the selection of the decision-maker, the following considerations apply. It is almost always more timely and less costly to reach a settlement, rather than to proceed with a formal dispute. When that is not possible, the first priority is to respect the wishes of the adult. This includes both wishes expressed by the adult when capable, and also their current wishes despite the incapacity (to the extent that these wishes are not unreasonable). The next consideration is the proper forum for the dispute. A careful review is required since there are several pieces of legislation that could apply– each with its own process and remedies. A key consideration will be whether you just focus on the disputed decision, or also wish replace the decision-maker.
In many cases, the best way to avoid this uncertainty is for the adult to make a Representation Agreement and to be clear about their wishes while capable. If that is no longer possible, a lawyer can assist in navigating this challenging situation.