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2002 Legislative Session: 3rd Session, 37th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

HONOURABLE KATHERINE WHITTRED

MINISTER OF STATE FOR INTERMEDIATE,

LONG TERM AND HOME CARE

BILL 44 – 2002

HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) AMENDMENT ACT, 2002

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Section 1 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, is amended by repealing the definition of "health care" and substituting the following:

"health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes

(

a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,

(

b) a plan for minor health care that

(

i) is developed by one or more health care providers,

(ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and

(iii) expires no later than 12 months from the date consent for the plan was given, and

(

c) participation in a medical research program approved by an ethics committee designated by regulation; .

Section 2 is amended by repealing paragraphs (

b) and (

c) and substituting the following:

(

b) the provision of psychiatric care or treatment to a person detained in or through a designated facility under

section 22, 28, 29, 30 or 42 of the Mental Health

Act ,

(

c) the provision of psychiatric care or treatment under the Mental Health Act to a person released on leave or transferred to an approved home under

section 37 or 38 of the Mental Health

Act , or

(

d) the provision of professional services, care or treatment to a person for the purposes of sterilization for non-therapeutic reasons.

3 The following sections are added:

No emergency health care contrary to wishes

12.1 A health care provider must not provide health care under

section 12 if the health care provider has reasonable grounds to believe that the person, while capable and after attaining 19 years of age, expressed an instruction or wish applicable to the circumstances to refuse consent to the health care.

Emergency health care despite refusal

12.2 If substitute consent to health care is refused on an incapable person's behalf by their substitute decision maker, guardian or representative, the health care may be provided despite the refusal if, in the opinion of the health care provider proposing the health care,

(a)

section 12 (1) (

a) applies, and

(

b) the substitute decision maker, guardian or representative did not comply with their duties under this or any other Act.

Section 14 is amended

(

a) by repealing subsection (1) (

a) and substituting the following:

(

a) after consulting, or making a reasonable effort to consult, with any spouse, relative or friend of the adult who is reasonably available or with any other person who has relevant information, the health care provider decides that the adult

(

i) needs the major health care, and

(ii) is incapable of giving or refusing consent to the major health care, , and

(

b) by repealing subsection (4) and substituting the following:

(4) If a person chosen under

section 16 gives or refuses substitute consent, the health care provider must

(

a) inform the adult and any spouse, relative or friend of the adult who accompanies the adult of

(

i) the decision or assessment that the adult is incapable,

(ii) the name of the person chosen under

section 16,

(iii) the decision to give or refuse substitute consent, and

(iv) the right to request a review, under

section 28, within 72 hours, and

(

b) give the adult a written notice in the prescribed form containing the information listed in paragraph (a).

Section 17 (1), (2) and (5) is repealed and the following substituted:

(1) Subject to

section 9 (2), a person chosen under

section 16 has the authority to decide whether to give or refuse substitute consent.

(2) The health care provider must, no more than 21 days before that health care begins, confirm in writing that

(

a) the adult is still incapable, and

(

b) the person who earlier consented to the health care being provided confirms that the health care should begin.

(2.1) Despite subsection (2) and whether or not the health care that is the subject of the decision made under subsection (1) has begun, if at any time a health care provider has reasonable grounds to believe that the adult may be capable of giving or refusing consent to health care, the health care provider must again determine whether the adult remains incapable.

(2.2) If, at any time after a decision is made under subsection (1), the adult is capable of giving or refusing consent to health care,

(

a) the authority to give or refuse substitute consent to health care for the adult is terminated,

(

b) the decision made under subsection (1) is rescinded, and

(

c) before the health care that is the subject of the decision made under subsection (1) is begun or continued, the adult must give consent to that health care.

(2.3) Subsection (2.2) does not invalidate anything that is otherwise validly done before the decision made under subsection (1) is rescinded.

(3) While the authority to give or refuse substitute consent to health care for the adult is valid, a person chosen under

section 16 may apply to the court under the Adult Guardianship Act for an order appointing a substitute decision maker or guardian for the adult.

(4) If a person chosen under

section 16 makes an application under the Adult Guardianship Act , the person's authority to give or refuse substitute consent under this Act continues until a final order is made under that Act, unless that authority is otherwise terminated under this Act.

(5) On being told that a person chosen under

section 16 wants to be relieved of the authority to give or refuse substitute consent, the health care provider may choose in accordance with that

section another person to assume that authority.

Section 28 is amended by adding the following subsections:

(5.1) On receipt of a request under subsection (1) (

c) concerning minor health care, the board may decide that

(a) subsections (6) and (7) and

section 29 do not apply to the review,

(

b) the decision under review is confirmed, and

(c)

section 30 (3) applies to its decision under paragraph (

b) to confirm.

(5.2) The board may act under subsection (5.1)

(

a) on consideration of the request document, and

(

b) without notice to the parties to the review, a hearing or receipt or consideration of evidence other than the request document.

(5.3) The board must not act under subsection (5.1) (

b) if it is satisfied on a balance of probabilities in the course of its consideration described in subsection (5.2) (

a) that the decision under review raises a significant

(

a) issue of public policy, or

(

b) question respecting the obtaining of consents for health care for the adult to whom health care is being provided or for whom health care is proposed

that warrants a hearing under

section 29.

(5.4) A decision of the board under subsection (5.1) must not be questioned, reviewed or restrained by or on an application for judicial review or other process or proceeding in any court.

Section 32 (3) is repealed and the following substituted:

(3) The appeal must not include a new hearing unless the court orders one.

8 The following sections are added:

Collection of personal information

33.1 A health care provider is authorized to collect personal information about an adult from any person if this is necessary for the purposes of exercising a power or carrying out a duty or function under this Act.

Disclosure of information to prescribed advocacy organization

33.2

(1) A prescribed advocacy organization has the right to all the information and documents to which an adult is entitled and that are necessary to

(

a) make an informed decision to request a review under

section 28 (2) (

e) concerning the adult, or

(

b) assist the adult at a hearing under

section 29 (4).

(2) Anyone who has custody or control of the information or documents referred to in subsection (1) must disclose that information and provide copies of the documents to the prescribed advocacy organization.

(3) Subsections (1) and (2) override

(

a) a claim of confidentiality or privilege other than a claim founded on solicitor client privilege, and

(

b) a restriction, in an enactment or the common law, about the disclosure or confidentiality of information.

Confidentiality

33.3 A prescribed advocacy organization receiving information under

section 33.2

(

a) must use the information only for the purposes of

section 33.2 (1), and

(

b) must not disclose that information other than for the purposes of paragraph (a), for the purposes of a prosecution or if required by law.

Section 34 (2) (

e) is amended by striking out "and 29 (4);" and substituting ", 29 (4) and 33.2;" .

Section 17 (3) and (4) of the Supplement to the Health Care (Consent) and Care Facility (Admission) Act is repealed.

Commencement

11 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Notes

SECTION 1: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 1] repeals and replaces the definition of "health care".

SECTION 2: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 2] clarifies the procedures, services, care and treatment to which the

Act does not apply.

SECTION 3: [Health Care (Consent) and Care Facility (Admission) Act, enacts

sections 12.1 and 12.2] clarifies that

a health care provider must not provide health care to a person who, while a capable adult, expressed the intention that they not receive treatment;

health care may be provided to an incapable adult despite the refusal of substitute consent by their substitute decision maker, guardian or representative, if the treatment is necessary, in the opinion of the health care provider proposing the health care, and the substitute decision maker, guardian or representative is not complying with their duties.

SECTION 4: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 14 (1) (

a) and (4)] provides that

the duty under

section 14 (1) (

a) of the Act to consult with a spouse, relative or friend of the adult is subject to the spouse, relative or friend being reasonably available for consultation;

the duties of the health care provider under

section 14 (4) of the Act arise on the giving or refusing of substitute consent by the person chosen under

section 16 of the Act.

SECTION 5: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 17] allows a person chosen under

section 16 of the Act to give or refuse

substitute consent for treatment in certain circumstances where the treatment

would be administered on a date more than 21 days after the person was

chosen.

SECTION 6: [Health Care (Consent) and Care Facility (Admission) Act, adds

section 28 (5.1) to (5.4)] streamlines the review process under

section 28

where the request under

section 28 (1) (

c) of the Act concerns minor health

care.

SECTION 7: [Health Care (Consent) and Care Facility (Admission) Act, repeals and

replaces

section 32 (3)] limits the circumstances in which an appeal may

consist of a new hearing.

SECTION 8: [Health Care (Consent) and Care Facility (Admission) Act, enacts

sections 33.1 to 33.3] clarifies the circumstances in which personal information

about an adult may be collected for purposes of the Act, the extent to

which information may be disclosed to advocacy organizations and the duty of

an advocacy organization to keep information received in confidence.

SECTION 9: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 34 (2) (e)] is consequential to the enactment of

section 33.2 of the Act

by this Bill.

SECTION 10: [Health Care (Consent) and Care Facility (Admission) Act, repeals

section 17 (3) and (4) of the Supplement] repeals provisions of the Act that are

not in force.

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© 2002: Queen's Printer, Victoria, British Columbia, Canada