Health Care Consent
Legally reviewed. Last update made in June 2023.
What is informed consent?
The Health Care (Consent) and Care Facility (Admission) Act sets out the legal requirements for consent. Except for certain situations, a health care provider must always get informed consent before giving you health care. The law says a provider must give you information about:
- What condition they want to treat (your diagnosis);
- What health care they want to give you (the proposed treatment);
- How it may help you (the benefits);
- How it may harm you (the risks); and
- Other health care you could choose instead (possible alternatives).
The health care provider must also allow you to ask questions and get answers.
You have the right to be involved as much as possible in plans and decisions about your health care.
When you agree to health care, you are giving consent to that specific health care only. The health care provider can only give the care you agreed to, and must get informed consent for a new or different treatment.
A physician’s order (DNR/No-CPR form or Medical Order for Scope of Treatment [MOST] form) is not a consent— and can not be used in the future if you are incapable.
How do I give consent?
Your decisions about health care must be voluntary. No one can pressure you or force you to decide in a particular way, or deliberately give you wrong information to influence your decision.
You can give consent in different ways—by speaking, by writing, or through your behaviour, such as nodding or making a sign that you agree.
Although your behaviour may count as consent— for example, offering an arm for an injection when requested, or complying with a course of treatment— cooperating is not always the same thing as giving informed consent.
If the provider has not given you information about that specific treatment, or you do not understand it, the provider cannot assume you are consenting just because you cooperate.
How is incapability to consent determined?
The law says you are capable of making health care decisions, unless and until you demonstrate that you are incapable.
Sometimes it is difficult to know the difference between ‘capable’ and ‘incapable.’ You may be capable of doing some things and not others, or your capability might be different from one time to another.
If your health care provider has concerns about whether you are capable of informed consent to health care, they will try to find out if you understand these two things:
- What kind of health care is being offered – for example, its purpose, and the risks, and
- The fact that the health care is meant for you and your situation.
The law says the provider must explain information in a way that takes into account your abilities. If the provider is having trouble understanding how you communicate they should try to find someone, such as your representative, a family member, or a friend, who can understand your communication and help explain it.
The provider cannot decide you are incapable of consent to health care only because of how you communicate. If a provider determines that you are incapable of informed consent to health care, they must get consent from another authority.
Albert is a widower with three adult children. He recently needed surgery to insert a pacemaker. Unfortunately, he developed a blood clot during surgery and had a stroke. When Patrick stopped in to see Albert, his father, he learned about the stroke. Patrick found his dad confused and groggy. The hospital resident doctor came by to talk to Albert about his condition and to get consent for medication and some tests.
Albert’s speech was unclear and he did not seem to understand when Patrick asked if he wanted a glass of water. Patrick knew his dad did not respond well to anaesthetic or to painkillers. Patrick asked the doctor questions about his dad, and the doctor asked if Albert had a Representation Agreement. Patrick wasn’t sure. He said his sister might know. The doctor said he would come back to get consent.
As it turned out, Albert made a Will — but he is not dead. Albert does not have a Representation Agreement in place and no stand-alone Advance Directive, if it would even apply. Any one of Albert’s three adult children could be selected to be his Temporary Substitute Decision Maker (TSDM). The doctor could select Patrick as TSDM to give or refuse consent for the medication and tests right now. Because the authority of a TSDM is ‘temporary,’ the doctor might select Ashley or Paul as TSDM at another time.
All three of Albert’s children want to ensure he gets the best rehabilitation services possible. The TSDM role only covers health care, but Albert needs help in all life areas, not just health care. They also think it is better for Albert and easier on the health care system if there is certainty and continuity for health care decisions. They do not want to apply to be committee of person because of how it stigmatizes Albert, especially if he gets better and wants to reverse it. The three children help Albert make a Representation Agreement under section 7 (RA7All).
Health Care Consent FAQs
How is "health care" defined?
The law in BC defines health care as “anything done for a therapeutic, preventive, palliative, diagnostic, cosmetic, or other purpose related to health.”
This includes care at a clinic or doctor’s office, in a hospital, in a care facility or group home, or in the community.
It includes individual treatments, longer-term courses of health care (like a series of immunizations or a course of chemotherapy), and participation in an approved medical research program.
The law also describes two kinds of health care:
1. Minor health care includes things like regular checkups, routine tests, basic dental and eye care, immunizations, medications of any kind, and other care that is not major health care.
2. Major health care includes surgery, risky or complex tests, any treatment involving a general anaesthetic, radiation, chemotherapy, and kidney dialysis.
If you are determined incapable of consent, and you did not make a Representation Agreement, and a health care provider has to select someone to act on your behalf there are special rules that must be followed if major health care is involved. See the Nidus fact sheet “Notice for Major Health Care if a TSDM is Selected”.
Do I have a right to refuse consent?
Yes, you have the right to refuse consent. As a rule, as long as you are capable of informed consent, you have the right to make your own decisions about health care. This means:
You can refuse or withdraw (stop) consent to health care for any reason, including religious or moral reasons. You have this right even if your decision puts your health or life in danger, and
Your decision must be respected.
Read the Nidus fact sheet Refusing Health Care: What are My Rights?
When is informed consent not required?
When a health care provider takes preliminary steps to figure out what health care is needed.
One of the following must indicate that you want to receive some health care:
- You (the adult patient/client/resident); or
- Your spouse, or near relative or close friend.
Urgent, unexpected condition that arises after starting
Informed consent for additional or alternative health care is not required if you (the adult patient/client/resident) gave consent to health care, and then while it is in progress (perhaps during surgery) something new or unexpected arises and it is medically urgent to provide health care but you are unconscious or semi-conscious.
Informed consent is not required in an emergency situation where the health care provider believes you are not capable (you may be unconscious or impaired by alcohol or drugs).
The law defines emergency as a need for immediate health care to:
- Save your life;
- Prevent serious mental or physical harm; or
- Relieve extreme pain.
If the court appointed someone as your committee of person, or if not, you named a representative in a Representation Agreement that includes health care, the health care provider must ask them for consent. They must be capable of consent and available.
Otherwise, the health care provider decides and the law says that, if possible, another health care provider should confirm that you are incapable and you need the proposed health care.
The law also says that if a health care provider is reasonably sure you expressed a wish to refuse the specific treatment offered in the emergency situation and you were capable of informed consent when you expressed this wish (verbally or in writing) and you were 19 years or older and there is no evidence that you have changed your mind, the health care provider must not give you the health care.
On the other hand, a health care provider can override refusal in an emergency situation if they believe a committee of person or representative did not follow their duties. They also have the ability to override refusal in a stand-alone Advance Directive.
Once the emergency is over, the health care provider must get consent from you before giving you any more health care, or if you are incapable of informed consent they must get consent form another authority. Read How Health Care Decisions are Made in BC if You are Incapable of Informed Consent
What health care decisions are not covered by BC legislation for informed consent?
BC legislation for health care consent excludes some specific health care matters.
When you are involuntarily committed or detained or on leave under the Mental Health Act
Informed consent does not apply to treatment of a mental disorder if you are an involuntary psychiatric patient under BC’s Mental Health Act.
This includes someone who is found not criminally responsible under the Criminal Code, someone who is detained in a provincial mental health facility, and someone who is on leave and living in the community or who is transferred to an approved boarding home with conditions under the Mental Health Act.
The Mental Health Act also covers certain emergencies. If the police attend, they can apprehend you based on observations or information from others that you have a mental disorder or are a danger to yourself or to others. The police can take you to a physician for examination and the physician can arrange for you to be involuntarily committed for care.
Under the Mental Health Act, an involuntary psychiatric patient is ‘deemed’ to consent to treatments set out by a director of a designated facility who is appointed by the health authority responsible for operating the facility.
While informed consent does not apply to treatment decisions related to your mental disorder when you are an involuntary psychiatric patient, it does apply to treatment of other health conditions such as a broken leg or pneumonia.
Sterilization for birth control purposes
Sterilization for non-therapeutic purposes is not allowed under any legislation in BC.
Medical Assistance in Dying
Eligibility and procedures related to medical assistance in dying (MAID) are governed by federal legislation.
Who qualifies as a health care provider?
In BC, a health care provider is someone who is licensed or registered to provide health care in BC. This includes:
- Dentists, Dental Technicians, Certified Dental Assistants and Dental Hygienists
- Hearing Instrument Practitioners
- Massage Therapists
- Nurse Practitioners, Nurses, Practical Nurses, Psychiatric Nurses
- Occupational Therapists
- Pharmacists and Pharmacy Technicians
- Physicians and Surgeons
- Registered Social Workers
- Speech-Language Pathologists
- Traditional Chinese Medicine (TCM) Practitioners
Planning for Health Care
If no planning is in place
Committeeship (of Person)
Temporary Substitute Decision Maker – TSDM (PDF)
Duty for Notice if a TSDM is selected for a Major Health Care Decision (PDF)
How Health Care Decisions are Made in BC (PDF)
Refusing Health Care: What are my Rights? (PDF)
Giving Consent to A Plan for Minor Health Care (PDF)
COVID-19 Community Alert (PDF)
Health Care (Consent) and Care Facility (Admission) Act (BC)
Health Care Consent Regulation (BC)
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