Health Care Decision-Making

Patient on hospital bed

The COVID-19 crisis has caused significant uncertainty and raised many questions. One issue that we may not consider until it is too late is health care decision-making. Who gets to make decisions about medical treatment? What happens if we or someone we love loses capacity to make those decisions?

In British Columbia, adults are presumed capable until the contrary is demonstrated. The contrary is “demonstrated” through medical evidence establishing that an adult is incapable due to, for example, dementia or acute or chronic illness. For so long as an adult is capable, only that person is entitled to make health care decisions. Their informed consent to treatment must be sought and obtained by care providers.

If an adult loses capacity, however, the person (or entity) authorized to make decisions can vary. For example, if an adult has made a representation agreement, then the person (or people) that the adult has nominated may make decisions on their behalf. The representative owes duties to the adult, including to act honestly and in good faith, to exercise reasonable care, and to act within the limits of the authority given to them. If possible, the representative must consult with the adult about their wishes. The representative must respect the adult’s wishes, unless it is unreasonable to do so. Where the adult’s wishes are not known, then the representative must act based on the adult’s known values and beliefs, and in the adult’s best interests, if those beliefs are not known.

But what about where the adult has not made a representation agreement? In those cases, a few pieces of legislation may apply to appoint a substitute decision-maker. For example, under the Health Care (Consent) and Care Facility (Admission) Act, health care providers will turn to a “temporary substitute decision maker”. In order of priority, this will be the adult’s spouse, child, parent, brother or sister, grandparent, grandchild, any other relative, close friend, or person related to the adult by marriage. This person must 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 similar to those imposed on a representative.

Other forms of substitute decision-making may apply in other circumstances. As summarized in a recent blog post, if the adult has been declared incapable by the Courts and has had a committee appointed under the Patients Property Act, then that person is authorized to make decisions about the adult’s health care. In addition, the Adult Guardianship Act authorizes designated agencies, such as health authorities, to provide health care to an adult in cases of emergency and in situations of abuse or neglect where the adult requires support and assistance. Also, in certain circumstances, the manager of a care facility may admit an adult to an institution without the adult’s consent under the Health Care (Consent) and Care Facility (Admission) Act.

To ensure that your wishes regarding your health care are respected and provide peace of mind, we recommend making a representation agreement to appoint someone you trust to make or help you make decisions. You can sign a representation agreement at home. In a recent article, we outlined how to make certain estate planning documents, including representation agreements, at home.

For assistance with your estate and incapacity planning or litigation matters, please contact us.

For more legal analysis of how COVID may affect your business, or personal affairs, visit Clark Wilson’s COVID-19 Resource and FAQ pages