Consent to Care Facility Admission Provisions to be brought into Force
8 July 2019
By Sara Pon
On June 3, 2019, the BC provincial government signed an order of the Lieutenant Governor in Council declaring that Part 3 of the Health Care (Consent) and Care Facility (Admission) Act (HCCCFAA) will be brought into force on November 4, 2019. This means BC will finally have legislation governing admission to long-term care facilities and hospitals. In this blog post, we outline the provisions and how they will impact care facility admission in BC.
These provisions were enacted in 2006 and 2007, but they were not put into force at that time. In 2012, the British Columbia Ombudsperson in it’s The Best of Care (Part 2) report noted that the government had brought policies into force to support the enactment of Part 3 of the HCCCFAA, but there was no timeline for enactment of legislation itself.1 In 2017, the government stated in its report An Action Plan to Strengthen Home and Community Care for Seniors that it intended to bring Part 3 into force in April 2018. However, this date was pushed back several times, as noted by the BC Ombudsperson in it’s The Best of Care Update.2 While the government has not stated why the provisions have taken so long to be enacted, during the debates for the Supplement Repeals Act the Minister noted that the government was unsure which provisions would be brought into force, and wanted to consult further before bringing the provisions into force.
What is the Current Practice?
Currently, there are no provisions in the legislation or regulations setting out rules for consent to care facility admission in the HCCCFAA, nor the Community Care and Assisted Living Act or the Hospital Act. The Home and Community Care Policy Manual requires that Health Authorities “ensur[e] that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.” In practice what this means is that if an adult is capable of consenting, they would give consent to admission to a care facility. If an adult is incapable of giving consent, there is no process to name a temporary substitute decision-maker to consent to care facility admission.
There are few options which allow a substitute decision-maker to consent to care facility admission. The only advance planning document which enables an individual to give substitute consent on behalf of another adult to care facility admission is a representative designated under a section 9 Representation Agreement. A high level of capacity is required to make a section 9 Representation Agreement, and a basic section 7 Representation Agreement does not allow for consenting to care facility admission. If a person is incapable and a Committee of the Person (BC term for a personal guardian) is appointed by the court, this Committee may consent to care facility admission. However, committeeship applications are not common. Thus, there are likely few care facility admission decisions made by a substitute decision-maker in BC.
What are the Issues under Current Practice?
There are several problematic outcomes that have flowed from the lack of legislation on consent to care facility admission in BC:
- There is currently no one legally authorized to provide substitute consent to admission to a care facility for an adult who is incapable of consenting who has neither a section 9 representative or a Committee of the Person.
- The Mental Health Act has been used inappropriately to admit people to a care facility when they are considered incapable of making this decision or unwilling to consent. This issue came to our attention when we conducted key informant interviews for our Health Care Consent Project. See the Conversations about Care Report for more on this topic.
- The BC Ombudsperson notes that the policy requiring that health authorities determine if a client is capable of providing consent, without the enactment of Part 3, means that adults are being assessed for incapability without any prior evidence that they may be incapable, rebutting the presumption of capability that exists in BC legislation. The Ombudsperson argues that, given adults are presumed capable, there should be clear rules on when the health authorities can assess incapability so that adults who are fully capable of making admission decisions are not being assessed and potentially admitted without their consent.1
- The BC Ombudsperson found that Health Authorities, and individual care facilities, were applying this policy in different manners, leading to inconsistent application of the policy. There were many complaints brought to the Ombudsperson regarding individuals being admitted to care facilities without consent. The policy does not specify how consent should be obtained or documented, and the Ombudsperson found that in some cases consent was not obtained in writing, and there were disputes on if and how consent was obtained. To remedy this situation, the Ombudsperson recommended enacting Part 3, and creating a consent document to be used by all care facilities in BC.1
What do the New Provisions Say?
What is being enacted?
The province has set out the legislation and regulations. Some policies have been implemented in advance of the consent to admission provisions being brought into force, which have been discussed above. No further policies have been released by the provincial government at this time, though we anticipate further policy being published closer to November. The provisions to be enacted are found in the Health Statutes Amendment Act, 2007. The Order in Council enacts section 13 of the Supplements Repeal Act, 2006 which sets out Part 3, but section 8 of the Health Statutes Amendment Act, 2007 immediately repeals and replaces Part 3 with different text. The original Part 3 in the Supplements Repeal Act, 2006 did require the care facility manager to give the adult or their substitute decision-maker (SDM) a facility care proposal, and the adult or the SDM had to accept or reject the facility care proposal. The original Part 3 also set out guidance on the use of restraints. However, the new Part 3 enacted under the Health Statutes Amendment Act, 2007, which replaces this text, no longer requires the delivery and acceptance of a facility care proposal, and restraint use is primarily set out within the regulations, where the provisions can be more easily amended.
Who can Consent?
Part 3 of the Health Statutes Amendment Act, 2007 sets out three ways an adult can be admitted to a care facility:
- The capable adult gives consent;
- An SDM gives consent if the adult is incapable of making an admission decision; or
- The adult is admitted on an emergency basis without prior consent.
Obtaining a Capable Adult’s Consent
Section 21 sets out that the adult, if capable of making an admission decision, must give voluntary consent after being given all the information a reasonable person would need to make this decision, including what care the adult will receive, and when they can leave the facility. The manager is required to communicate “in a manner appropriate to the adult’s skills and abilities” and allow a person to assist the adult in communicating and making this decision, which enables supported decision-making. Consistent with health care consent law in BC, the provisions set out that “[c]onsent may be expressed orally or in writing or may be inferred from conduct.” This provision leaves open the ability for an adult to provide consent in the circumstance that they are capable of making an admission decision but does not communicate verbally. However, this provision may also lead to inconsistent methods of obtaining consent as there is no further guidance on how to obtain consent. Section 77.1 of the Residential Care Regulations will require the consent to be documented in the adult’s records, but there is no standard form or method of obtaining and recording consent set out.
Substitute Consent if Adult Incapable
Substitute consent can be obtained for an adult who is incapable of making an admission decision. Section 22 sets out who can be an SDM and how one can qualify to be an SDM, which is the same as who can currently be a Temporary SDM for general health care decisions under section 16 the HCCCFAA. In making an admission decision, the SDM must consult with the adult and any relative or friend of the adult who wishes to help, and consider any pre-expressed wishes of the adult.
The provisions do not clearly set out when an incapability assessment may be ordered. Section 20 states that a person who is not the adult can only apply for admission if “the person has reason to believe that …(b) the adult is incapable of giving or refusing consent to admission.” Section 22 states the manager can only obtain consent from an SDM “if the manager has made every reasonable effort to obtain consent from the adult but the adult is determined under section 26 to be incapable of giving or refusing consent.” Section 26 and the regulations only set out by who and how the incapability assessment is to be conducted, not what grounds this assessment is to be conducted on.
Under section 24, an adult will be admitted to the care facility without consent if they are incapable of making an admission decision, and the adult or others are at serious risk of harm or death. Within 72 hours of an emergency admission, the manager must obtain substitute consent for continued admission.
Requests to Leave a Care Facility
Part 3 sets out when an adult can leave the care facility.
- If the adult is capable of making this decision, the adult can leave the care facility at any time.
- If the adult has an SDM for care facility admission, the SDM can decide when the adult will leave.
If the adult asks to leave but may be incapable of making this decision, the manager must have the adult assessed. If the assessment states the adult is incapable of making a decision about leaving the care facility, the SDM must decide whether the adult will remain or leave. However, the manager does not need to assess the adult or speak to the SDM if the adult was admitted within the last 30 days or the SDM provided consent to the adult remaining in the care facility within the last 90 days.
When enacted, the Health Care Consent Regulations will set out the process of incapability assessments. The statute and regulations set out who can conduct incapability assessments, including doctors, nurses, social workers, and psychologists. The adult can request another person be present at the assessment to aid them in communicating, but the assessor can say no to this if it would hinder the assessment process. The adult does not have to be present for the assessment if the adult refuses or is unable to participate, and the assessment can be conducted accurately using the medical information and other sources available.
The statute and regulations set out requirements for the use of restraint. Section 26.1 of the statute sets out the definition of a restraint, which means to “control or restrict the freedom of movement of a person in care”, and that a restraint cannot be used “(a) for the purpose of punishment or discipline, or (b) for the convenience of care facility staff.” The Health Care Consent Regulations set out most of the restraint requirements. Section 23 sets out that a restraint includes “(a) chemical, electronic, mechanical or other means, and (b) accommodating the person in care in a secure unit.” The current restraint requirements in the Residential Care Regulations will now apply to persons in care under Part 3.
Why is this Legislation Important?
Part 3 coming into force will change practice, especially for managers of care facilities. The responsibility for ensuring consent to care facility admission is placed on the manager of the care facility, so the legislation will most strongly impact these individuals. Health care professionals such as doctors or nurses do not have responsibilities under this legislation, other than when they are called upon to conduct an incapability assessment.
This legislation is important because it sets out who can give consent to a care facility admission, especially when a person is incapable of making an admission decision. This is particularly salient for individuals living with dementia who need the care but may not be able to make this decision, and who are currently admitted without anyone consenting or involuntarily through the Mental Health Act. This legislation will likely result in greater consistency throughout the province in admission practices. Importantly, the enactment of these provisions will ensure the presumption of capacity will remain at the forefront, by setting out how this assessment is to be done, and when the adult’s wishes and values must be considered. The legislation codifies the right of adults to participate in decisions regarding admission even where they do not have the capacity to make decisions about admission on their own. However, greater clarity on when the incapability assessment is to be conducted may be needed to ensure adults will not continue to be assessed when there are no valid grounds to believe they may be incapable of making an admission decision.
For more information on BC care facilities, see the Government of BC’s website.
1 British Columbia, Office of the Ombudsperson, The Best of Care: Getting it Right for Seniors in British Columbia (Part 2) Overview, Public Report No 47 to the Legislative Assembly of British Columbia (2012) at 242-244.
2 British Columbia, Office of the Ombudsperson, Systemic investigation Update, The Best of Care: Getting it Right for Seniors in British Columbia (Part 2) Overview (2019) at 13-14.