Generally speaking, adults can only be given health care with their consent. We explain consent, and the exceptions to this general rule, including what happens when someone is mentally incapable.
Understand the legal framework
The general rule under the law in BC is: a doctor (or another health care provider) can treat you only if you consent.
For this rule to apply, you must be a mentally capable adult. Different rules apply to children; we explain these in our information on children and consent to health care (no. 422). If an adult is unconscious, mentally incapable, or otherwise unable to give consent, the law sets out procedures to follow. We explain those shortly.
For your consent to be valid, it must be informed. This means your doctor or health care provider must explain your illness or condition to you and tell you about the proposed treatment, the risks and benefits of it, and any alternative treatments, including no treatment.
Consent to health care may be given “orally or in writing or may be inferred from conduct”. This means there are three ways you can give consent:
- you can give consent verbally,
- you can give consent in writing, or
- a health care provider can decide, based on your conduct, that you consent to health care.
Every adult who is capable has the right to give consent or to refuse consent to health care for any reason, including moral or religious reasons. You can refuse life support or other health care, such as a blood transfusion, even if it means you will die. You also have the right to change your decision.
To refuse treatment, you must be mentally capable of making that decision. The law presumes all adults are capable of giving, refusing, or revoking their consent, unless it’s clear they are not capable of making those decisions. If a doctor questions a person’s mental capability, the doctor can require the person to have a capacity assessment performed by a medical expert.
In a medical emergency, a health care provider may not need your consent to provide health care. If you are unconscious or otherwise incapable of giving consent, a health care provider may do whatever is necessary to try to save your life or prevent serious harm.
This medical emergency exception does not apply if a representative who is authorized to consent to health care for you is available.
As well, the medical emergency exception does not apply if the health care provider has reasonable grounds to believe that you, while a capable adult, expressed a wish to refuse health care in a particular situation. For example, if you carry a card saying you refuse to have a blood transfusion, and the health care provider sees that card while treating you in a medical emergency, they must respect your wishes.
If you previously indicated what health care you want (or don’t want) in a medical emergency, health care providers must follow your wishes in an emergency. For example, you can make a legal document called an advance directive. This is a written instruction about what health care you want or do not want in the future if a decision needs to be made and you’re incapable of making it.
An advance directive has requirements on how it is signed and witnessed. It must be signed and dated by the adult making the advance directive, in front of two witnesses. It must also be signed and dated by the two witnesses in front of the adult. (Only one witness is needed if the witness is a notary public or lawyer.) Both witnesses must be capable adults who understand the type of communication the adult uses. They can use an interpreter if necessary.
Certain people are not able to witness an advance directive. For example, a person can’t be a witness if they provide personal care, health care, or financial services to the adult for compensation (there is an exception for a lawyer or notary public).
If an adult is not physically capable of signing an advance directive, another person can sign it for them if the adult is physically present and directs the person to sign the directive. Certain people can’t sign an advance directive for an adult, including a witness to the signing or someone who can’t witness an advance directive.
Even if an advance directive is not properly witnessed, it may still show an adult’s wishes when they were capable. So it may still be a guide for the person who must make the health care decision.
Effect of an advance directive
Generally speaking, if an adult needs health care and is incapable of giving or refusing consent to the health care — and the health care provider doesn’t know of any representative or committee with authority to make decisions for the adult — then the health care provider must follow any advance directive they are aware of.
But there are exceptions. A health care provider does not have to follow the instructions in an advance directive if they reasonably believe any of these things:
- The advance directive does not cover the health care decision to be made.
- The instructions in the directive are so unclear it can’t be determined whether the adult has given or refused consent to the health care.
- Since the advance directive was made, the adult’s wishes, values or beliefs in relation to the health care decision significantly changed, and the advance directive does not reflect the change.
- Since the advance directive was made, there have been significant changes in medical knowledge, practice or technology that might substantially benefit the adult in relation to health care covered by the directive.
In some cases, another person can make health care decisions for you if you’re too ill or otherwise unable to decide.
You may have made a representation agreement allowing your representative to make health care decisions for you. Our information on powers of attorney and representation agreements (no. 180) explains representation agreements. If you become mentally incapable, a court may appoint a person as your committee, and that person can make health care decisions for you. Our information on committeeship (no. 426) has more on committees.
Under the law in BC, if you have neither a representative nor a committee, and you are too ill or otherwise unable to make a decision on your health care, your health care provider must choose a temporary substitute decision-maker based on a priority order set out in the law.
Under the law in BC, your health care provider, in choosing a temporary substitute decision-maker, must ask people in the following order:
- your spouse or partner (including a same-sex partner)
- an adult child
- a parent
- a brother or sister
- a grandparent
- a grandchild
- anybody else related by birth or adoption
- a close friend
- a person immediately related by marriage
- the Public Guardian and Trustee
If no one on this list is available or qualifies to be a decision-maker, or if there’s a dispute about who the decision-maker should be, the health care provider must choose the Public Guardian and Trustee (or a person it chooses) to be the temporary substitute decision-maker.
A temporary substitute decision-maker must be at least 19 years old, be mentally capable, and have no dispute with you. They must also have been in contact with you in the past 12 months.
Under the law in BC, a person chosen to be a temporary substitute decision-maker can make decisions about any kind of health care, except controversial or irreversible treatments such as organ transplants or experimental surgery.
A temporary substitute decision-maker can say no to life-saving treatment if you’re terminally ill or critically injured, but only if there is substantial agreement among the health care providers caring for you that the decision is medically appropriate and reflects your wishes or is in your best interests.
A temporary substitute decision-maker must consult with you if possible. If that’s not possible, they must follow any directions you gave while you were capable. You should let your family know now what decisions you would like if you can no longer decide for yourself. If your wishes are unknown, a decision-maker must give or refuse consent in your best interests, considering whether:
- your condition will improve with the proposed health care
- the condition will improve without the health care
- the benefit of the health care is greater than the risk of harm
- less restrictive or less intrusive health care would be as helpful as the proposed health care
If a friend, family member, or doctor is concerned about any major health care decision by a temporary substitute decision-maker, they can ask the health authority to review the decision. Each health authority in the province is required to have a dispute resolution process.
Under the law in BC, certain people can apply to court to challenge a decision by a temporary substitute decision-maker to give or refuse consent to health care. Those who can apply to court include a health care provider or the adult themselves (that is, the person who has been assessed as incapable of giving or refusing consent to health care).
Under this same law, the court can be asked to say who the temporary substitute decision-maker should be.
This information applies to British Columbia, Canada
Reviewed in June 2018
Time to read: 8 minutes