Capability and Informed Consent

In Canada, when you are ill and need health care, you can choose whether you say yes or no to the tests, examinations, and treatments your health-care provider recommends. Your health-care provider can only provide care that you agree to. Agreeing to a treatment or test is called consent.

Agreeing to a treatment or test after you understand the purpose, benefits and risks is informed consent. Your health-care provider must explain to you the risks and benefits before they can ask for your consent. When deciding, it helps to think about what difference the test, examination or treatment will make in your life.

You can only provide informed consent when you are capable.

Capable means you can…

  • understand the information provided about the treatment offered, its purpose, benefits and risks;
  • make a decision to receive (consent) or refuse that treatment; and
  • communicate that decision.

You have a right to receive support in your decision making from the people you trust. For example, they may help you understand the information provided, and communicate your wishes.

If you have reached the age of majority (19 in B.C.), you are entitled to the presumption of capability. This means your health-care providers should always assume you have capability unless there are reasons to believe otherwise.

Note: capability is not determined by how the person communicates. Everyone has a right to receive assistance in understanding and communicating their decisions. For example, if a person speaks a different language, a language interpreter can help them communicate. If a person is non-verbal, they can communicate using head nodding and body language

Your capability may depend on the decision you need to make.

You might be able to understand simple health-care options, but not be able to understand more complex ones.

  • For example, you may lose capability to make decisions for a short or long time because of illness or injury, and you may regain capability as you recover.
  • If you regain capability, your health-care providers must ask you for your consent for any ongoing or new health-care treatment or tests.
  • A severe head injury (e.g., car crash, sports injury, workplace accident)
  • Medical treatments involving a coma or general anaesthetic (for example, mechanical ventilation, some surgeries)
  • Massive heart attack with a loss of consciousness
  • A stroke where thinking, speech or ability to write are affected
  • Brain diseases that affect thinking and communication (for example, Dementia, Huntington’s, brain tumour)
  • Loss of enough blood to make you pass out or affect your brain function (for example, severe internal bleeding, trauma)

If your health care providers believe you may have lost capability, they must do an assessment. This is determined at the time of the decision and in relation to the decision

If they determine you do not have capability to make the decision, they will instead need to get informed consent from your substitute decision maker.

Advance Directive

You can use an Advance Directive to provide instructions directly to your health-care provider to give or refuse consent to health-care treatments.

An Advance Directive is a legal document, but you do not need a lawyer or notary to prepare an Advance Directive.

An Advance Directive deals only with a specific treatment; do not record your general wishes or what matters most to you in life in an Advance Directive. You can record this information in an Advance Care Plan.

The instructions in your Advance Directive must be clear about the specific treatments you refuse or accept.

  • learn about what your health will likely be like in the future, the treatment options you might need, and your care goals, preferences and wishes.
  • be sure that your instructions are clear and specific, and that you understand how what you write would be interpreted.
  • You must write, date, and sign it in English.
  • It must contain at minimum these two acknowledgements:
    • “A health-care provider may not provide me with health care that I’ve refused in the Advance Directive”, and
    • “No one can be chosen to make decisions on my behalf for any health care that I’ve written instructions on.”
  • If you cannot sign, with your permission, another person may sign on your behalf. They can’t be your witnesses, health or financial service providers who receive pay, or under the age of majority.
  • Your signature needs two witnesses, or one witness if they are a lawyer or notary.

For more information on how to make or change an Advance Directive visit www.peopleslawschool.ca.

Representation Agreement

You can use a Representation Agreement to appoint one or more Representatives to make decisions about your health and personal care if you can’t.

A Representation Agreement is a legal document, but you do not need a lawyer or notary to prepare a Representation Agreement.

There are two types of Representation Agreements:

Enhanced Representation Agreement (Section 9)

A Representative appointed by an Enhanced Representation Agreement (Section 9)

  • can make personal care and health-care decisions for you, including decisions to refuse life support;
  • can’t make any legal or financial decisions for you. (You can appoint an Enduring Power of Attorney for this)

You must be able to make your own decisions to make a Section 9 Representation Agreement.

Standard Representation Agreement (Section 7)

A Representative appointed by a Standard Representation Agreement (Section 7)

  • can make personal care, routine financial and legal decisions, and some health care decisions for you;
  • can’t refuse life support treatments.

You can make a Section 7 Representation Agreement even if you do not understand some information.

A Section 7 Representative can act as your substitute decision maker, or can support you with decision making.

For more information on Enhanced Representation Agreements, see our three-part resource:

  1. What you need to know about enhanced representation agreements (section 9)
    English | Simplified Chinese | Traditional Chinese | Punjabi 
  2. What you need to know about being a representative in an enhanced representation agreement
    English | Simplified Chinese | Traditional Chinese | Punjabi
     
  3. A guided tour of the BC government’s enhanced representation agreement (section 9) form.
    English | Simplified Chinese | Traditional Chinese | Punjabi 

 

For further information on Representation Agreements, including Standard Representation Agreements, see the People’s Law School.

About Your Representative

Your Representative must be 19 years or older, and able and willing to make decision about your care. Your Representative can’t be a person who is paid to provide personal care or health services for you.

If you choose more than one Representative, you can assign each one authority for the same or different areas of health care and personal care. If they have the same area of authority, they must agree on a decision unless the Representation Agreement states otherwise.

  • Anything prohibited by law
  • Medical assistance in dying
  • Treatments that are not medically necessary, including research, sterilization, or organ/tissue donation (unless stated otherwise in your Directive).

Your Representative is not permitted to delegate their role to another person.

  • You must write, date, and sign it in English.
  • If you cannot sign, with your permission, another person may sign on your behalf. They can’t be your witnesses, health or financial service providers who receive pay, or under the age of majority.
  • Your signature needs two witnesses, or one witness if they are a lawyer or notary.

You don’t have to involve a lawyer or notary public to make a Representation Agreement.

  • If you have trouble understanding information and making some decisions.
  • You anticipate a dispute or confusion in the family about making health-care decisions for you.
  • Your requirements don’t fit in the standard templates. For example, if you would like to appoint more than one Representative or Alternate.

Medical Orders

There are two medical orders available in BC for recording instructions for health care – the No-Cardiopulmonary Resuscitation (CPR) form, and a Medical Order for Scope of Treatment (MOST) form.

In BC, the No-Cardiopulmonary Resuscitation (No-CPR) form is a medical order that states you are not to receive CPR from health-care providers and first responders. For the form to be valid, it must be signed by a capable adult (you, or your substitute decision maker if you are not capable) and your physician or nurse practitioner.

If you have a No CPR order that is visible and signed, you will not be given CPR by first responders or other health care providers. People often put the form on their fridge so it can be easily seen. You can also sign up to receive a No-CPR MedicAlert® bracelet or necklet that you can wear to visibly indicate to first responders that you have an active No CPR order in place.

Read full details on the No CPR form here.

A Medical Order for Scope of Treatment (MOST) is a medical order that documents which life-support treatments you would want to receive (including CPR), and the level of care you should receive (for example, whether you should be admitted to hospital or intensive care).

It is commonly used in hospitals and care homes to help health-care providers understand the treatments you prefer, and to know what to do in an emergency. It does not replace informed consent.

It is completed after conversations between a doctor or nurse practitioner and a capable person (you, or your substitute decision maker if you are not capable). To be valid, it must be signed by a doctor or nurse practitioner. The MOST form must be revisited and re-signed every year.

It is specific to each Health Authority.

Read more about MOST Forms here on the People’s Law School website.

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