In October 2016, the Canadian Centre for Elder Law working with ASBC started a 16 month project on the law and practice around health care consent in BC with a focus on older adults and adults with dementia. This project will address issues around health care consent with a focus on older adults and adults with dementia. Along with addressing the legal framework surrounding health care consent it will highlighted related issues such as polypharmacy, etc. Presented by: - Krista James, National Director, Canadian Centre for Elder Law - Alison Leaney, Provincial Coordinator, Vulnerable Adults Community Response, Public Guardian and Trustee - Barbara Lindsay, Director, Advocacy and Education

1. BC Care Providers Association Celebrating 40 Years of C.A.R.E
May 31, 2017
Barbara Lindsay, Director of Advocacy and Education
Alzheimer Society of BC
Alison Leaney, Provincial Coordinator Vulnerable Adults Community
Response, Services to Adults, Public Guardian and Trustee of BC
Krista James, National Director, Canadian Centre for Elder Law
Health Care Consent, Aging
and Dementia: Mapping Law
and Practice in BC

2. 1

3. Alison Leaney - Provincial Coordinator
Vulnerable Adults Community Response
Services to Adults
Public Guardian and Trustee of BC
Health Care Consent
Under BC’s Adult Guardianship
Legislation

4. Outline
3
1. Health Care Consent Under AGL
1. Where it applies
2. Consent rights
3. Definition of health care
4. Consent process
5. Test of incapability
6. Health Care Decision Makers
7. Details about TSDMs and decision making
•2. Exceptions
• Involuntary psychiatric treatment under the Mental
Health Act
• Restrictions on restraints under the Residential Care
Regulation

5. 4
Adult Guardianship
Act
Public Guardian and
Trustee Act
Power of Attorney Act
Representation
Agreement Act
Health Care (Consent)
and Care Facility
(Admission) Act (MOH
Legislation)
Patients Property Act
BC’s Adult Guardianship Laws

6. BC’s Adult Guardianship Laws
5
Adult makes their own
decisions
Adult decides who will
make decisions for
them if they cannot
Others can be
appointed if the adult
hasn't chosen anyone
or their plans have
fallen through
Continuum of Decision Making

7. Presumption
of Capability
Right to Self
Determination
Court as a Last
Resort
Just Enough
Support
Guiding Principles

8. 7
Capable adults have the right to:
• Give or refuse consent including on moral ore religious
grounds even if it can result in death
• Select a form of available health care
• Revoke consent
• Have their decision respected
• Be involved to the greatest degree possible in case planning
and decision making
Consent Rights

9. Definition of Health Care
8
• For therapeutic, preventive, palliative, diagnostic,
cosmetic or other purpose related to health
including:
• A sequence or series of similar treatments or
care over a period of time for a particular health
problem
• A plan for minor health care that is:
• Developed by one or more HCPs
• Deals with one or more problems
now or expected in the future
• In force for no more than 12 months
• Participation in an approved medical research
program

10. 9
• Care without delay to preserve the adult’s life, prevent serious
physical/metal harm or to alleviate severe pain
• Adult is impaired by drugs or alcohol or is unconscious or
semi-conscious – incapable
• There is no available CoP, representative or TSDM
Urgent or Emergency Care

11. 1
0
• Major surgery
• Any treatment involving a general
anesthetic
• Major diagnostic or investigative
procedures
• As outlined in the Regulation
Major and Minor Health Care
•Anything not major
including;
• Routine tests to
determine if health
care is necessary
• Routine dental
treatment that
prevents or treats a
condition or injury
caused by disease or
trauma – e.g. cavities,
fillings, extractions,
oral hygiene
inspections
• M A J O R • M I N O R

12. 1
1
(a) It relates to the proposed health care,
(b) It is given voluntarily,
(c) It is not obtained by fraud or misrepresentation,
(d) The adult is capable of making a decision
(e) The health care provider gives the adult the information a reasonable
person would require to understand what is proposed, including
information about
• their condition
• the nature of the proposed health care,
• the risks and benefits of the proposed health care, and
• alternative courses of health care, and
(f) The adult has an opportunity to ask questions and receive answers
Consent is valid if….

13. • Health care provider obtains consent
• To be legally valid, consent must be informed
• Way of communicating is not, by itself, grounds for
deciding adult is incapable
• Up to health care provider to decide whether adult is
capable of making health care decisions
Process of Obtaining Consent

14. 1
3
Adult demonstrates he/she understands:
• The Information given:
• Their condition
• The nature of proposed health care
• Risks and benefits of proposed health care
• Alternative courses of health care
• That this information given applies to the adult
Test of Incapability for Health Care

15. Health Care Decision Makers
1
4
1. Adult
2. Committee of Person (PPA)
3. Personal/Health Care Rep-
• Representative – s. 9 and s. 7
4. TSDM
– Spouse
– Child
– Parent
– Sibling
– Grandparent
– Grandchild
– Anyone related by birth or adoption
– Close friend
– Person immediately related by marriage
– Someone authorized by the PGT, or the PGT
• * An adult may have made an Advance Directive

16. 1
5
•TSDMs must:
• Be at least 19 years of age
• Have had contact with adult in last 12
months
• Have no dispute with adult
• Be capable of giving, refusing or revoking
consent
• Be willing to comply with the duties
How TSDMs Qualify

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6
1. Consult with the adult about what they want and with family
or friends
2. Comply with any prior capable instructions or wishes
3. If no instructions or wishes known, make a best interests
decision:
• Current wishes, known beliefs and values
• Will condition or well-being improve with proposed health
care?
• Will condition or well-being improve without proposed
health care?
• Is the benefit of the health care greater than the risk of
harm?
• Would a less restrictive or intrusive form of health care be
as beneficial as proposed health care?
How Substitute Health Care
Decisions are Made

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7
Exceptions Outside of
Adult Guardianship
Package

19. II
Involuntary Psychiatric Treatment under
the Mental Health Act
1
8
“The criteria are that the patient:
• is suffering from a mental disorder that seriously impairs the
person’s ability to react appropriately to his or her environment
or to associate with others;
• requires psychiatric treatment in or through a designated
facility;
• requires care, supervision and control in or through a
designated facility to prevent the person’s substantial mental or
physical deterioration or for the person’s own protection or the
protection of others; and
• is not suitable as a voluntary patient.”
Guide to the Mental Health Act

20. 1
9
“A licensee must ensure that a restraint is not
used unless
(a) the restraint is necessary to protect the
person in care or others from serious physical
harm,
(b) the restraint is as minimal as possible, taking
into consideration both the nature of the restraint
and the duration for which it is used, and
(c) the safety and physical and emotional
dignity of the person in care is monitored
throughout the use of the restraint, and
assessed after the use of the restraint.”
(Residential Care Regulation)
Restricted Use of Restraints
Residential Care Regulation to the
Community Care and Assisted Living Act

21. PGT Publications
2
0
• Adult Guardianship
• Services to Adults
• Translations
• Chinese traditional
• Chinese simplified
• Filipino
• Punjabi
• Spanish
• Vietnamese
• French
• Russian
• Korean
• Farsi
• Japanese
http://www.trustee.bc.ca/reports-and-
publications/Pages/default.aspx
Reports and Publications

22. Contact Information
2
1
Alison Leaney – Services to Adults
Public Guardian and Trustee of British Columbia
700 - 808 West Hastings Street
Vancouver, BC V6C 3L3
Ph: 604.660.4413
Fax: 604.660.0374
Email: aleaney@trustee.bc.ca
Website: www.trustee.bc.ca

23. Healthcare consent, Aging and
Dementia: Mapping Law and
Practice in BC
Krista James
National Director

24. May 31, 2017 Health Care Consent, Aging and Dementia 23
Canadian Centre for Elder Law
1. Legal research
2. Law reform
3. Legal education
4. Outreach

25. May 31, 2017 Health Care Consent, Aging and Dementia 24
Presentation Outline
1. Project scope and research methodology
2. Early themes emerging from research
3. Questions for discussion

26. May 31, 2017 Health Care Consent, Aging and Dementia 25
Research Question
• What is the practice of health care consent in BC?
• Does practice match people’s legal rights?
• Collaboration with Alzheimer Society of BC – focus
on the experiences of people living with dementia

27. May 31, 2017 Health Care Consent, Aging and Dementia 26
Methodology
• Diverse project advisory committee
• Review of relevant legislation
• Comparative research, Canada and abroad
(Ontario, the United Kingdom, USA, Australia)
• Literature review

28. May 31, 2017 Health Care Consent, Aging and Dementia 27
Methodology
Consultation is key:
• Focus groups (people living with dementia &
caregivers)
• Key informant interviews with practitioners
• Online caregiver survey
• Community presentations

29. May 31, 2017 Health Care Consent, Aging and Dementia 28
Project publications in 2017
1. Report
• What is the law?
• What did we learn from consultation?
• Recommendations for change
2. One educational resource on health care
consent rights in BC

30. May 31, 2017 Health Care Consent, Aging and Dementia 29
Early themes from consultation
• Some physicians do not fully understand their
obligations to get consent prior to treatment
• Some care facility staff do not appreciate their role
in facilitating informed consent
• Lack of initial and ongoing training or professional
development re health care consent law

31. May 31, 2017 Health Care Consent, Aging and Dementia 30
Early themes from consultation
In long term care:
• Some medication is considered routine and so
consent is not sought
• People who stay with the family physician when
they move their loved one into long term care
generally report better experiences

32. May 31, 2017 Health Care Consent, Aging and Dementia 31
Question
When do you receive training or ongoing professional
development about health care consent law and your
responsibilities?

33. May 31, 2017 Health Care Consent, Aging and Dementia 32
Question
What are some of the challenges to making sure a
person is providing informed consent?

34. May 31, 2017 Health Care Consent, Aging and Dementia 33
Question
How do you make sure you are getting consent from
the right person? Or involving the right people in the
process?

35. May 31, 2017 Health Care Consent, Aging and Dementia 34
Question
What is the practice regarding involving a person with
dementia in the decision-making process?

36. May 31, 2017 Health Care Consent, Aging and Dementia 35
Question
Can you identify any changes to policy / practice that
would help you to feel more confident about your
practice in the area of health care consent?

37. Krista James
kjames@bcli.org
604-822-0564
www.bcli.org/ccel

38. Thank you to our funder