Respecting the Autonomy of Older Adults During COVID-19
Many older adults have been greatly impacted by the COVID-19 pandemic and may need to make more health care decisions or plan for incapability and serious illness.
During this time of heightened risk, fear, and stress on the health care system, it is important to make sure we are not taking away the autonomy of older adults.
Health Care Consent
All capable adults have the right to make decisions about their health care, including the right to consent to treatment, refuse treatment, or discontinue treatment. The Health Care Consent and Care Facility Admission Act (HCCA) outlines the health care consent rules in BC. Consent must be voluntary. A person must consent to each course of treatment, so when living in long-term care or needing ongoing care, consent will be an ongoing process.
Living in long-term care does not mean a person automatically consents to all treatment. People will need to consent to each new medical procedure or treatment; they may be able to consent for themselves, even if they were not able to consent to admission to long-term care.
Adults have certain rights in the health care consent process:
- To have all the information a reasonable person would need to make an informed decision,
- To ask questions and receive answers,
- To be communicated with in a manner appropriate to the adult’s skills and abilities,
- To have a family or a close friend help the adult communicate and understand information, and
- To consent in a manner that works for them, be it verbally, in writing, or inferred from behaviour
Capacity and Dementia
All adults are presumed to be capable of making decisions. Under the HCCA, people are not capable if they cannot understand the information and how it applies to their situation. Just because a person has dementia does not mean the person is incapable of making decisions.
Capacity is Decision-Specific
- A person might have capacity to make some health care decisions but not others.
- A person who cannot make financial or legal decisions may still be capable of making some health care decisions, such as whether to start taking a medication.
- Capacity may change from day to day.
- Circumstances can affect capacity. For example, anxiety or depression could reduce a person’s ability to make a decision. Having a quiet environment or a supporter could increase a person’s ability to make decisions.
People with reduced capacity may be able to make health care decisions if they have a supporter to help them understand the information, make the decision, and communicate with the health care provider.
Many people already make decisions with the help of people they trust; that support can be vital for people living with dementia. The HCCA does recognize the right to have a supporter help in making decisions. A capable adult can appoint a representative under a Representation Agreement (RA) to help them make decisions, but an RA is not required to exercise the right to have a supporter.
If an adult is not capable of making the health care decision, a substitute decision-maker must give consent for the health care treatment. There are five types of substitute decision makers or directives, listed here in the order of which takes priority.
1. Committee/Personal Guardian
If the Court has found a person to be incapable of making decisions for health care or personal care and appointed a committee of the person, this committee can make all health care decisions. The committee must involve the adult in decision-making.
If an adult has designated a representative under an RA, the representative can make any health care decisions allowed under the scope of the RA. The RA can specify when it takes effect, such as when a person becomes incapable of making health care decisions. When the adult drafts the RA, the adult chooses the person the adult wants to be the representative. The representative must agree to take on this role and sign the Representation Agreement.
The representative must consult with the adult and comply with the adult’s wishes if they are reasonable.
There are two types of RAs, section 7 and section 9. A section 7 RA requires the lowest level of capacity to create; the adult does not have to be capable of making a contract or managing his or her legal or financial matters. An adult may still be able to make a section 7 RA if the adult has dementia.
3. Advance Directive
If the adult does not have a committee or representative but has created a relevant advance directive (AD), the health care professional can take instructions from the AD. The AD must specify the particular health care decision at issue, the document must be clear, and the adult’s wishes or values must not have changed significantly since drafting the AD.
4. Temporary Substitute Decision-Maker (TSDM)
If an adult does not have a guardian or representative, the health care provider must obtain consent from a ranked list of adult family members or close friends. This person must have been in contact with the adult within the last 12 months and not have any disputes with the adult. The health care professional should choose who is the most appropriate person on the list each time consent is needed. The TSDM must consult with the adult.
5. Public Guardian and Trustee
If none of the above decision-makers are available, and the adult does not have capacity to make a particular decision, the decision-maker of last resort is the Public Guardian and Trustee.
Strategies for Communication
Creating a disability friendly environment can help increase the ability of people living with dementia to make decisions, including about health care, financial, and legal matters. A BC Notary uses the following strategies when working with older adults.
- Uses clear and simple language.
- Spends time with the adult to learn about the adult’s communication needs and abilities.
- Allows the adult more time to describe the adult’s needs and make decisions.
- Meets with the adult in a quiet room.
- Allows the adult to have a supporter to help understand and communicate.
- Meets with the adult at the best time of day for the adult.
- Even if the adult is not capable, involves the adult as much as possible in the decisions.
- For a booklet and videos on health care decision-making rights of people with dementia, visit the CCEL’s website . The booklet is available in English, French, Chinese, and Punjabi.
- For more information on planning documents like RAs, visit Nidus’s website .
- If an older adult needs legal help and cannot afford a lawyer or is experiencing abuse, the adult or a supporter can contact Seniors First BC’s SAIL Line at 1-866-437-1940.
- For dementia information and support, call the Alzheimer Society’s First Link Dementia Helpline at 1-800-936-6033. Language support is available in Cantonese, Mandarin, and Punjabi.
Sara Pon is a Canadian Centre for Elder Law Legal Research Assistant.
Posted in Personal Planning