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Health Care Consent, Aging and Dementia: Mapping Law and Practice in BC
- 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
- 17. 1 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
- 18. 1 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?
- 38. Thank you to our funder