Who Is the Temporary Substitute Decision Maker in British Columbia?

When someone you love cannot understand or agree to a treatment, the hospital or clinic still needs a valid consent. In British Columbia, a temporary substitute decision maker, often shortened to TSDM, can fill that gap for health care decisions.

This article explains how a TSDM is chosen under the Health Care (Consent) and Care Facility (Admission) Act, who comes first in line, and what a TSDM can and cannot do. It is general information, not advice on a particular situation.

This article covers the law of British Columbia.

When a TSDM is needed

As a starting point, a health care provider must not give health care to an adult without the adult's consent, except as the Act allows. When the provider decides whether an adult is incapable of consenting, the question is whether the adult shows they understand the information given and that it applies to their situation.

A TSDM is not always needed. If the adult has a personal guardian or a representative with authority, the provider gets substitute consent from that person and a TSDM is not chosen. Urgent care is also different: health care may be given without consent if it is needed without delay to preserve the adult's life, among other conditions in the Act.

The order of priority

The provider must choose the first qualified person on the following list. You cannot jump the queue by volunteering, and the family does not vote.

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

Who qualifies, and who counts as a spouse

Being on the list is not enough. The 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 of the Act.

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 who is living separate and apart from the adult does not meet the definition. That can matter in families with a long separation or a new partner.

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 and the provider must choose a person authorized by the Public Guardian and Trustee.

What a TSDM must do, and the limits

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 adult's 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. Which types are prescribed is set in regulations, so ask the care team or a lawyer about a specific treatment.

What to do next

• Ask the care team whether the adult has a representation agreement or a personal guardian, since that changes who consents.
• Tell the provider honestly about your recent contact with the adult and about any dispute, as both affect who qualifies.
• Gather what you know about the adult's earlier wishes, such as things they said or wrote.
• If relatives disagree, raise it with the care team early rather than at the bedside during a crisis.
• Speak with a lawyer if you are unsure whether someone qualifies or if the family is in conflict.

Frequently asked questions