Under the Health Care (Consent) and Care Facility (Admission) Act (HCCCFAA ), informed consent must be obtained prior to an adult receiving health care treatment or prior to an adult’s admission to a residential care facility. Part 2 of HCCCFAA guides health care providers on how to seek and obtain consent before providing treatment. Similarly, Part 3 of HCCCFAA requires consent before an adult is admitted into a care facility and guides managers responsible for admissions on how to obtain that consent.
HCCCFAA presumes that all adults are capable of providing informed consent unless assessed otherwise. The assessment of an adult must specifically speak to their incapability of making the specific decision at issue such as providing consent to health care under Part 2 or consent to facility admission under Part 3. Both parts of the legislation contain provisions about substitutes who can provide consent when either the health care provider or manager responsible for admissions have assessed the adult as incapable of providing consent.
The Public Guardian and Trustee (PGT) is named under both parts of the legislation as either the temporary substitute decision maker (TSDM) of last resort under Part 2 or substitute decision maker (SDM) of last resort under Part 3 of HCCCFAA. If there is no willing, available and qualified substitute, or there is a dispute between equally ranked family decision makers, the PGT is called upon to authorize a suitable TSDM for health care treatment decisions or a suitable SDM for facility admission. If it is unclear who to choose between equally ranked substitutes, the PGT will make the substitute treatment and/or facility admission decisions.
Health Care Decisions
Part 2 of the Health Care (Consent) and Care Facility (Admission) Act establishes rules for the provision of legally valid consent to health care treatment. Health care professionals must obtain informed consent from a patient before providing treatment.
However, if the patient is incapable, a substitute decision maker may be needed. In the absence of an already existing substitute decision maker such as a Committee of Person or Representative under a Representation Agreement, and in the absence of an Advance Directive relevant to the health care decision to be made, the law requires the health care provider to choose a person who will provide consent to treatment from a list of qualified people who meet specific criteria.
This list of people, referred to as Temporary Substitute Decision Makers (TSDMs), includes family members and close friends and if there is no one else, the PGT.
Care Facility Admission Decisions
Part 3 of HCCCFAA contains the provisions which set out the requirements for consent to facility admission. Managers responsible for admissions must obtain consent prior to admitting an adult into a care facility. This consent is sought directly from the adult.
In cases where the adult has been assessed as incapable of providing informed consent a substitute decision maker is required. Managers seek consent from any known Committee of Person if already existing or from a list of qualified Substitute Decision Makers (SDMs) which includes a Representative under a Section 9 Representation Agreement, followed by family and close friends and if there is no one, the PGT.
Admissions Managers can use the CFA referral form provided in the link below to make a referral to the PGT.