Who Makes Health Care Decisions Without a Representation Agreement in BC?

A sudden illness or accident can leave a family in a hospital hallway with questions nobody can answer. Your parent, spouse or sibling cannot make their own medical decisions, and there is no representation agreement on file. You may wonder whether anyone has the right to say yes or no to treatment.

British Columbia has a process for exactly this situation. It sits in the Health Care (Consent) and Care Facility (Admission) Act, and it puts the choice of decision maker largely in the hands of the health care provider. This article explains how that works in general terms.

This article covers the law of British Columbia.

Consent comes first, with limited exceptions

A health care provider must not give health care to an adult without the adult's consent, except as the Act allows in sections 11 to 15. Whether an adult is incapable of consenting is not decided by a family vote. The provider decides based on whether the adult shows they understand the information given and that it applies to their situation.

Emergencies are treated differently. Health care may be given without consent if it is needed without delay to preserve the adult's life, among other conditions in section 12.

When a representative or guardian already exists

If the adult has a personal guardian or a representative with authority, the provider gets substitute consent from that person, and a temporary substitute decision maker is not chosen. So it is worth checking quickly whether any representation agreement or guardianship exists before assuming there is none.

Who the temporary substitute decision maker is

When a temporary substitute decision maker (TSDM) is needed, the health care provider must choose the first qualified person in this order:

• The adult's spouse
• A child
• A parent
• A sibling
• A grandparent
• A grandchild
• Anyone else related by birth or adoption
• A close friend
• A person immediately related to the adult by marriage

The provider works down the list. You cannot simply choose yourself because you are the most involved relative.

For this purpose, a spouse includes a person married to the adult and not living separate and apart, and a person living with the adult in a marriage-like relationship. A married person living separate and apart from the adult does not meet the definition.

Who qualifies, and what if no one does

To be chosen, a person must be at least 19 years old, have been in contact with the adult during the preceding 12 months, have no dispute with the adult, be capable of giving, refusing or revoking substitute consent, and be willing to comply with the duties in section 19.

If no listed person is available or qualified, or there is a dispute about who should be chosen, the Public Guardian and Trustee's role applies. The provider must then choose a person authorized by the Public Guardian and Trustee.

Duties and limits of a TSDM

Before giving or refusing consent, a TSDM must consult the adult to the greatest extent possible and follow any instructions or wishes the adult expressed while capable. If the wishes are not known, the TSDM must decide in the adult's best interests.

There are limits. A TSDM cannot consent to health care types prescribed in the regulations, and can refuse life-preserving health care only if the health care providers caring for the adult substantially agree.

What to do next

• Ask the care team whether they have identified a TSDM and how they decided.
• Search for any representation agreement, guardianship or written wishes the adult may have made.
• Tell the team about family members, including any disputes or recent contact, as these affect who qualifies.
• Write down anything you know about the adult's values and past statements about treatment.
• If family members disagree or the situation is complicated, speak with a lawyer about your options.

Frequently asked questions