- A section 7 representative cannot be authorized to refuse health care that is necessary to preserve life.
- A section 9 agreement can allow a representative to consent to health care, but prescribed limits still apply.
- Without a representative, a temporary substitute decision maker can refuse life-preserving care only if the providers substantially agree.
When a loved one is seriously ill and cannot speak for themselves, families want to know who decides about treatment, and whether that person can say no to life support. The answer in British Columbia depends on what kind of agreement exists and what it says.
This article explains the health decisions a representative can make, the limits in the Representation Agreement Act, and what happens when there is no representative at all.
This article covers the law of British Columbia.
The starting rule: consent
A health care provider must not give health care to an adult without the adult's consent, except as allowed by sections 11 to 15 of the Health Care (Consent) and Care Facility (Admission) Act. Whether the adult can consent is judged by whether they show they understand the information given and that it applies to their situation.
If the adult has a representative with authority, the provider gets substitute consent from that person, and a temporary substitute decision maker is not chosen.
What a representative can decide
A section 7 agreement may authorize a representative to help make, or make, decisions about major and minor health care, except prescribed kinds. A section 9 agreement may authorize a representative to do anything the representative considers necessary in relation to personal care or health care, including consenting to health care.
The list of prescribed health care types a representative cannot consent to is set by regulation, so ask a lawyer about it for your situation.
The limits on life-preserving care
Under section 7, a representative cannot be authorized to refuse health care that is necessary to preserve life, or to physically restrain, move or manage the adult over the adult's objection.
Even under a section 9 agreement, a representative cannot consent to certain prescribed kinds of health care, arrange temporary care for the adult's dependants, or interfere with the adult's religious practices unless expressly authorized, subject to the limits in ss. 9(2) and 11.
| Agreement | What it can say about health care | Limit |
|---|---|---|
| Section 7 | Major and minor health care decisions | Cannot refuse care necessary to preserve life |
| Section 9 | Consent to health care and other non-standard powers | Prescribed health care, and limits in ss. 9(2) and 11 |
How these limits apply to a specific life-support decision turns on the wording of the agreement and the medical facts, so a lawyer should confirm it.
How a representative must decide
A representative must act honestly and in good faith, use reasonable care and stay within their authority. They must consult the adult, to the extent reasonable, about the adult's current wishes. If those wishes are not known, the representative acts on the adult's known beliefs and values, or in the adult's best interests if those are also unknown.
Urgent situations are different. 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.
If there is no representative
When no guardian or representative has authority, the health care provider chooses a temporary substitute decision maker. The provider picks the first qualified person in this order: spouse; child; parent; sibling; grandparent; grandchild; anyone else related by birth or adoption; a close friend; a person immediately related by marriage.
To qualify, a person must be at least 19, 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 s. 19 duties. A married person living separate and apart from the adult is not a "spouse" for this purpose.
That person must consult the adult as far as possible and follow wishes the adult expressed while capable, or else decide in the adult's best interests. A temporary substitute decision maker can refuse life-preserving health care only if the health care providers caring for the adult substantially agree. If no one qualifies, or there is a dispute about who should be chosen, the provider must choose a person authorized by the Public Guardian and Trustee.
What to do next
- Find and read the actual representation agreement, noting whether it was made under section 7 or section 9.
- Ask the care team to explain the medical situation and the options in plain language.
- Write down anything the person said about treatment while capable.
- If there is a disagreement or concern about a representative, anyone may object to the Public Guardian and Trustee.
- If the dispute cannot be resolved, the court may give directions on interpreting an agreement or cancel all or part of it.
These situations are time-sensitive and emotional. A lawyer can read the agreement and explain what it allows.
Frequently asked questions
Can a representative under a section 7 agreement refuse life support?
A section 7 representative cannot be authorized to refuse health care that is necessary to preserve life. Whether a particular treatment falls in that category is a medical and legal question worth confirming.
What if the person has a section 9 agreement?
A section 9 agreement can authorize consenting to health care, but prescribed limits still apply. The wording of the agreement matters, so have a lawyer read it.
Who decides if there is no representation agreement?
The health care provider chooses a temporary substitute decision maker in a set order, starting with the spouse. That person can refuse life-preserving care only if the providers substantially agree.
What if I think the representative is not acting properly?
Any person may object to the Public Guardian and Trustee if there is reason to believe a representative is failing in their duties. The Public Guardian and Trustee may investigate and apply to court.
Sources
- Representation Agreement Act, s. 7 — bclaws.gov.bc.ca
- Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c. 181, s. 5(1) — bclaws.gov.bc.ca
- Public Guardian and Trustee Act, RSBC 1996, c. 383, ss. 17, 18 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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