Who Makes Health Care Decisions in BC With No Representation Agreement?

When a relative cannot understand or decide about medical treatment, families often ask who is allowed to speak for them. If there is no representation agreement and no court-appointed committee, British Columbia law still has a process.

That process is in the Health Care (Consent) and Care Facility (Admission) Act. This article explains how it works in plain language, who ranks first, and what a substitute decision maker can and cannot do.

This article covers the law of British Columbia.

Consent comes first, and capability is judged by the provider

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.

When deciding whether an adult is incapable of consenting, the provider must base the decision on whether the adult shows that they understand the information given and that it applies to their situation. Capability is about understanding, not about whether you agree with the decision the person makes.

When someone else already has authority, and emergencies

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.

There is also an emergency exception. 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.

The ranked list for choosing a temporary substitute decision maker

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

• The adult's spouse
• Child
• Parent
• Sibling
• Grandparent
• Grandchild
• Anyone else related by birth or adoption
• A close friend
• A person immediately related to the adult by marriage

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 of spouse.

Who qualifies, and what happens if no one does

To be chosen, a person must meet all of these requirements:

• At least 19 years old
• In contact with the adult during the preceding 12 months
• No dispute with the adult
• Capable of giving, refusing or revoking substitute consent
• 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 under section 16(3) applies, and the provider must choose a person authorized by the Public Guardian and Trustee. That means family disagreement does not leave the adult without a decision maker.

Duties and limits of a TSDM, and planning ahead

Before giving or refusing substitute 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. Ask the care team or a lawyer if you are unsure whether a particular treatment is affected.

The Representation Agreement Act lets adults arrange in advance how decisions will be made if they become incapable. A section 7 agreement covers standard matters, including personal care and major and minor health care. A section 9 agreement can give a representative non-standard powers over personal and health care. Making one is how you choose your own decision maker.

What to do next

• Check whether your relative has a representation agreement, a personal guardian or a committee, since that changes who is asked.
• Tell the care team who in the family is closest and in contact with your relative.
• Talk with relatives early so disputes do not arise, and share anything your relative said about their wishes.
• If there is a dispute or no one qualifies, ask the care team how the Public Guardian and Trustee would become involved.
• Speak with a lawyer if you are unsure about your role or about a decision's limits.

Frequently asked questions