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:

1 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; .

2 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.

4 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).

5 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.

6 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.

7 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.

9 Section 34 (2) (e) is amended by striking out "and 29 (4);" and substituting ", 29 (4) and 33.2;".

10 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.