Temporary Substitute Decision Makers for Health and Personal Care

In B.C., if health and personal care decisions need to be made on your behalf and you do not have (or have the capacity to create) a Section 7 or Section 9 representation agreement, determinations about who can make such decisions will (with some exceptions) be governed by the Health Care (Consent) and Care Facility (Admission) Act (“the Act”). Generally, if you are incapacitated and do not have a representation agreement, health care providers must obtain consent from a person referred to in the Act as a “temporary substitute decision maker”.

A health care provider must choose your temporary decision maker. They must choose the first, in listed order, of the following people who are qualified:

• spouse
• child
• parent
• sibling
• grandparent
• grandchild
• anyone else related by birth or adoption
• a close friend
• a person immediately related by marriage

Simply being first on the above list is not enough to qualify someone as your temporary substitute decision maker. The person must also:

• be at least 19 years of age
• have been in contact with you during the preceding 12 months
• have no dispute with you
• be capable of giving, refusing, or revoking substitute consent
• be willing to comply with the duties imposed by the Act

If no such person is available, or if there is a dispute about who should be chosen among people at the same level of the list, the health care provider must then choose a person. This can give the health care provider a great deal of power in situations where, for example, your children disagree about whether a particular treatment should be consented to or refused on your behalf.

There is also a significant restriction on the power of a temporary substitute decision maker to refuse consent to a treatment necessary to preserve your life. This is a power that many people would like the person making decisions about their healthcare to have.

Section 18 of the Act states that a temporary substitute decision maker may only refuse consent to health care necessary to preserve life if,

there is substantial agreement among the health care providers caring for the adult that the decision to refuse … is medically appropriate."

This leaves the possibility open that a temporary substitute decision maker might be unable to refuse health care that would preserve or prolong your life, even if you would have wanted them to do so.

While the above described limitation regarding life preserving treatment applies to a temporary substitute decision maker chosen under the Act, it does not apply to a personal representative named in a representation agreement created in accordance with Section 9 of the Representation Agreement Act. Because of this difference, if one wishes to explicitly empower someone with authority to refuse consent to health care that would prolong one’s life, one should consider creating a Section 9 Representation Agreement.

It is important to note that there are some situations in which health and personal care decisions need to be made on someone’s behalf but temporary substitute decision makers and representatives appointed in representation agreements are not permitted to make decisions. Stay tuned for next month when we will discuss one such situation; we will discuss what happens when someone is involuntarily admitted to a psychiatric care facility under B.C.’s Mental Health Act.