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Script 428 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Do you have the right to refuse medical care? Who and what allows doctors to treat you if you’re unconscious or unable to indicate what medical treatment you want? The answers to these and other questions are in a BC law called the Health Care (Consent) and Care Facility (Admission) Act.
The Act applies to adults – people 19 and over – but not to children. And it doesn’t apply to patients who are involuntarily admitted to hospital for psychiatric treatment under the Mental Health Act. For information on consenting to and refusing psychiatric treatment as an involuntary patient, refer to script 425, called “Hospitalizing a Mentally Ill Person.” For the law on children and consent to medical care, refer to script 422, called “Children and Consent to Medical Care.”
A doctor or health care provider can treat you only if you consent
For your consent to be valid, it must be informed. That means your doctor or health care provider must explain your illness or condition to you and tell you about the proposed treatment, the risks and benefits of it, and any alternative treatments, including no treatment.
People can consent in different ways – for example, orally, in writing, by signing a consent form, by nodding their head, or by offering their arm for an injection. The type of consent needed – written, oral, or something else – depends on how complex the treatment is and what risks it involves.
Do you have the right to refuse medical care?
Yes. Every capable adult has the right to consent to medical care or refuse it – for any reason, including moral and religious reasons. Adults also have the right to change their decisions about medical treatment. You can refuse life support or other medical care, such as a blood transfusion, even if it means you will die.
To refuse treatment, you must be capable. The law presumes all adults are capable of giving, refusing, or revoking their consent, unless it’s clear they’re incapable of making those decisions. If a doctor questions a person’s mental capability, the doctor can require the person to undergo a competency assessment by an expert.
What if you’re incapable and can’t consent?
Consent to medical care in a medical emergency may not be needed to treat you if you’re an adult – it depends on the situation. If your life or health is seriously threatened, and it appears that you are not capable of making health care decisions, health care providers may not need consent to treat you. Because they are dealing with a medical emergency, they may be able do whatever is necessary to try and save your life or health.
However, health care providers must not provide health care to you if you become incapable and they have reasonable grounds to believe that you previously indicated that you wanted to refuse health care in a particular case. For example, you may carry a card saying you refuse to have a blood transfusion. If you previously indicated what you want in a medical emergency, health care providers must follow your wishes if the emergency occurs.
In some cases, another person, such as a family member or friend, can make medical decisions for you if you’re too ill or unable. If you’ve made a representation agreement, your representative can make medical decisions for you. For more on this, refer to script 180, called “Power of Attorney and Representation Agreements”. If you’re mentally incapable, a person appointed by the court as a committee (pronounced comm-it-tay) of the person can make medical decisions for you – refer to script 426, called “Committeeship.” Also, refer to script 427, called “Adult Guardianship."
But if you have no representative or committee of the person, your doctor must choose your nearest relative as your temporary substitute decision-maker or TSDM.
How is the temporary substitute decision-maker chosen?
Your doctor, in choosing your nearest relative as the TSDM, must use the following order:
- your spouse or partner (including a gay or lesbian partner)
- an adult child
- a parent
- a brother or sister
- anyone else related by birth or adoption
If you have no family, the Public Guardian and Trustee can be your temporary substitute decision maker.
The person who acts as the TSDM must get along with you and must have been in contact with you in the past 12 months. Their authority to make health care decisions for you lasts for 21 days from when they are chosen.
What kind of decisions can the temporary substitute decision-maker make?
The temporary substitute decision-maker must consult with you if possible. If that’s not possible, the TSDM can rely on what they know or reasonably believe you would have wanted when you were capable. Then they must follow your wishes and beliefs to make health care decisions in your best interest. You should let your family know now what decisions you would like if you can no longer decide for yourself.
The TSDM can make decisions about any kind of health care, except controversial or irreversible treatments such as organ transplants and experimental surgery. They can say no to life-saving treatment if you’re terminally ill or critically injured and your doctor will follow their decision. But the doctor may challenge the TSDM’s decision if it’s medically appropriate and there’s no evidence that their decision reflects your values.
If you need major surgery, kidney dialysis, intravenous chemotherapy, or another serious procedure, your doctor must inform you in writing of the TSDM’s decision and wait 72 hours, unless it’s an emergency. This allows friends, family members, or other significant people in your life who disagree with the TSDM to ask for a review.
What if someone disagrees with the decision?
If a friend, family member, or doctor is concerned about any major health care decision the TSDM makes, they can ask the health authority to review the decision. Each health authority is supposed to have its own dispute resolution process.
More information
To learn more about consenting to medical care, and refusing it, call the Public Guardian and Trustee of BC at 604.775.1007 in Vancouver, 604.775.1001 in the lower mainland, and 1.877.511.4111 elsewhere in BC (the call is free). You can also check the Public Guardian and Trustee website at www.trustee.bc.ca and the Ministry of Health website at www.gov.bc.ca/health.
[updated October 2007]
Dial-A-Law© is a library of legal information that is available:
- by phone, as recorded scripts, and
- in writing, on the CBA BC Branch website.
To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.
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