The purpose of this column is NOT to advise people on their legal affairs or concerns, but to provide basic information for discussion with their own legal counsel.
Written by Ruth Magnusson, Lawyer, Straith and Company
I recently prepared a legal paper about the importance of Representation Agreements for Health Care (“Health Care RAs”). Health Care Ras are documents where an adult appoints a representative to make health care decisions for him or her in case of mental incapacity. My research shows that everyone needs a Health Care RA. But I know there are people who disagree. So let’s look more closely at the issue.
Clients often ask what will happen in they don’t prepare a Health Care RA. Who will make medical decisions for them? The new Health Care (Consent) Act sets out a list of persons who can make medical decisions for an incapable adult who does not have a Health Care RA. These persons are called “Temporary Substitute Decision Makers”, or “TSDMs”. Some clients would like to just let a TSDM make decisions because it is cheaper than preparing documents. But is it better? The answer is no. In the long run, it will not be cheaper either. There are several problems.
Under the law every capable adult has the right to give or refuse consent to health care on any grounds, including moral or religious grounds, even if death may result. However a mentally incapable adult may not make any decisions at all. The health care provider who is treating the adult decides if the adult is incapable. The health care provider also selects the TSDM. One problem, therefore, is that the health provider might not choose the same person that you would. “Health care provider” means doctor, chiropractor, nurse, massage therapist, optometrist, or any regulated health professional! All those practitioners can be involved in appointing a TSDM, or several TSDMs.
Another problem is that if we don’t appoint a representative we create a great deal of work for health care professionals. This makes their jobs more difficult, and will certainly add costs. For example, let’s look at what is required for a doctor who needs to appoint a TSDM. First the doctor must determine if the recommended health care is major or minor. The Ministry of Health maintains an information number to help doctors find the answer. The doctor must then locate a willing TSDM. Relatives may be chosen in certain priority: spouse, parent, child, and so on. Then the health care provider must ensure the TSDM is qualified to act. This means checking several things including age and contact with the adult, and also ensuring that there is no dispute.
The government guide for health care providers sets out the required procedure: “If a qualified person does not accompany the adult, it may be necessary to make telephone calls, confer with a friend or the adult, or use other means, depending on the circumstances. If a person on the list refuses to be a TSDM or shows little interest in being one, the health care provider would move to the next person on the list who is available and qualifies. If two or more equally ranked and qualified family members disagree about who should be the TSDM, the health care provider is expected to make a reasonable effort to obtain agreement about who will act as TSDM. If agreement cannot be obtained, the Public Guardian and Trustee will authorize someone.
A health care provider can not work down the list to find someone who will give consent because the others higher on the list have refused the proposed treatment.” If there is no one available, the health care provider must notify the Public Guardian and Trustee.
If a TSDM is appointed, the doctor must put it in writing. Then the medical decision must also be put in writing. Then, for major health care the doctor must give written notice to “the adult and any spouse, relative or friend who accompanies the adult”. After that he or she must wait three days in case someone files an appeal. If this happens, there will be more delays. If not, the health care can at last proceed. There is not enough room here to discuss other problems. But, you can see that failure to appoint representatives creates delays and confusion, and places significant, unnecessary burdens upon health care providers.
By Ruth Magnusson, Legal Considerations in Caregiving in “Network News”, Vol. 15/No. 4, November 2001