Section 7 Representation Agreements – Substitute Decision Makers for Health and Personal Care in British Columbia

By Martin Sanderson | August 29, 2017

In British Columbia, if one has become incapable of making one’s own health or personal care decisions but still wishes to appoint someone to make such decisions on one’s behalf, one may be able do so by creating a representation agreement in accordance with Section 7 of the Representation Agreement Act (a “Section 7 RA”). One may make a Section 7 RA even if one is incapable of:

  • making a contract;
  • managing one’s own health and personal care; or
  • routine management of one’s own financial affairs or legal matters.

Factors which are relevant to determining whether an individual has the capacity to make a Section 7 RA include:

  • whether the individual communicates a desire to have a representative make, help make, or stop making decisions;
  • whether the individual demonstrates choices and preferences and can express feelings of approval or disapproval of others;
  • whether the individual is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the individual;
  • whether the individual has a relationship with the representative that is characterized by trust.

A Section 7 RA allows one to explicitly appoint someone with the authority to make many types of decisions about one’s health and personal care. These decisions may include decisions regarding:

  • routine tests to determine if health care is necessary;
  • routine dental treatment that prevents or treats a condition or injury caused by disease or trauma, for example:
    • cavity fillings and extractions done with or without a local anesthetic, and
    • oral hygiene inspections;
  • major surgery;
  • any treatment involving a general anesthetic;
  • major diagnostic or investigative procedures;
  • radiation therapy;
  • intravenous chemotherapy;
  • kidney dialysis;
  • electroconvulsive therapy; and
  • laser surgery;

 

While these powers are quite broad, they are relatively restricted in comparison with Section 9 Representation Agreements (discussed last month). Under a Section 7 RA, an individual cannot authorize their representative to provide consent to the following:

  • a decision to refuse health care necessary to preserve life;
  • a decision to, despite the individual’s objection, physically restrain, move or manage them, or authorize another person to do these things;
  • abortion unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the individual for whom it is proposed;
  • electroconvulsive therapy unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the individual for whom it is proposed;
  • psychosurgery;
  • removal of tissue from a living human body for implantation in another human body or for medical education or research;
  • experimental health care involving a foreseeable risk that is not outweighed by the expected therapeutic benefit;
  • participation in a health care or medical research program that has not been approved by a committee specified in the Health Care Consent Act Regulations;
  • any treatment, procedure or therapy that involves using aversive stimuli to induce a change in behaviour.

While Section 7 RAs are somewhat more restrictive than Section 9 RAs in terms of what they allow concerning health and personal care decisions, they have one feature that Section 9 RAs lack. They can be used to nominate someone to take care of routine management of one’s legal and financial affairs, including (with some limitations):

  • payment of bills;
  • receipt and deposit of pension and other income;
  • purchasing food, accommodation and other services necessary for personal care;
  • making of investments; and
  • obtaining legal services for one, instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on one’s behalf.

A Section 7 RA can allow one to grant one’s representative the power to make some, or all, of the permitted types of decisions relating to health care, personal care, and management of routine financial and legal affairs. One can also include instructions and statements of one’s wishes to guide or constrain the decisions made by one’s representative.

The test for the capacity required to create a Section 7 RA is less stringent than the test for the capacity required to create a Section 9 RA. Because of this, Section 7 RAs can provide a person who does not have the capacity to make their own heath and personal care decisions, or to manage their own routine financial and legal affairs, a valuable opportunity to assert some degree of control over how such decisions are made.

. . . .

Stay tuned for next month when we will discuss what happens if health and personal care decisions need to be made on one’s behalf and one does not have in place (or have the capacity to create) either a Section 7 RA or a Section 9 RA.

Posted in Health Planning