Why does the definition of spouse matter for health care consent?

Q – Why does the definition of spouse matter for health care consent?

In BC, if you are incapable of informed consent to health care, the health care provider must locate a legally valid authority to give or refuse consent on your behalf.

If you do not have a Representation Agreement, your spouse might be selected for temporary authority.

If you made a Representation Agreement that includes authority for health care matters, then the representative may act – you can name your spouse, or anyone you choose.

Making a Representation Agreement is proactive and provides certainty.

Without a representative, health care providers will select someone from a default scheme, outlined in the law, to be the Temporary Substitute Decision Maker (TSDM). 

[If you have no representative but made an Advance Directive that applies to the specific situation at hand, the health care provider may take consent from it before selecting a TSDM. Advance Directives have very limited uses as you can read in the Overview of ADs.]

 Spouse is first on the TSDM list.

 

How is spouse defined in the health care consent legislation?

OLD DEFINITION

“spouse” means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender;

 

NEW (CURRENT) DEFINITION – came into effect March 18, 2013

“spouse” means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender;

 

How is the new definition different?

The term cohabiting has been deleted from the definition of spouse. This changes the emphasis. Those in common law relationships do not have to cohabit to be considered spouses, but the law still says ‘living together in a marriage-like relationship.’ Also, the reference to same gender is not relevant or necessary – common law relationships are not defined by gender.

It is especially important to note that the old and the new definition of spouse does not include a time frame. Other laws, such as the Family Law Act, may require that spouses live together for a specific period of time to be considered spouses for the matters dealt with by that law. This does not apply to the legislation for health care consent. It is always important to consider the requirements of the specific law in question.

 

Spouses living in a marriage-like relationship (common law) may not be cohabiting at times because:

• one spouse is in a care facility or some other residential setting.
• a job requires one or both spouses to work and live out-of-province or away for periods of time (seasonal work, resource industry jobs).
• they are in a second (or third) marriage-like relationship and do not want to give up their own homes – they may decide to live together at each other’s homes and go on vacations together.

This is not legal advice, these examples intend to show how relationships can be quite different today than the past. Laws do change, to catch up with real life. In fact, a recent BC court case about Wills and Estates looks at the definition of spouse in new ways – Connor Estate, 2017 BCSC 978

 

Materials and information from health authorities may be out-of-date.

It appears the Ministry of Health and Health Authorities are still using the old definition in their education for the public and professionals. The My Voice booklet, 2012, has the old definition. You need to check.

It can be hard to keep up with changes to law and practice, especially for this evolving and dynamic area. This is a good reason for the Ministry of Health and Health Authorities to collaborate with Nidus.

The definition of spouse is relevant because Health Authorities rely on and promote the TSDM scheme instead of planning with Representation Agreements. They may think the TSDM scheme is more efficient (because they are in charge of it) – but the extra time it takes adds cost to the health system and taxpayers. 

The health care provider selects a TSDM from a ranked list in the law – and they decide if the person is qualified. You cannot select who will be your TSDM.

If the health care provider decides the person is NOT qualified, they need to select someone else, including the Public Guardian and Trustee (a government official). If the decision concerns major health care, the provider must complete a special Notice Form (extra paperwork).

Although spouse is first on the TSDM list, whether a health care provider allows a spouse to act, if their loved one is incapable, may depend on that health care provider. For certainty and peace of mind – make a Representation Agreement.

 

WHAT CAN YOU DO?

You can choose your representative!

A Representation Agreement is the only document for health care and personal care matters. If you want to choose who you will help you make health care decisions, or act on your behalf, you need to make a Representation Agreement.

You and your spouse/partner can avoid the guesswork and uncertainty of the default scheme by making a Representation Agreement!

A spouse/partner has more authority as your representative than they do as your spouse – even if you are legally married.

 

Don’t forget to register!

Nidus operates the Personal Planning Registry – an idea from the law reform and originally included in the Representation Agreement Act. The BC Government decided not to set up a Registry, but the public wanted it.

The Registry helps with communication. Unlike the Will, which is only looked at after your death, the Personal Planning Registry helps communicate information and documents that affect your quality-of-life!

You can print your own wallet cards and replacements if needed. You can keep information in your record updated. Read more about the Registry.

 

RESOURCES

Nidus has helped thousands of people learn about and make Representation Agreements. Nidus also provides education to legal and health professionals to share our experiences on planning for health and personal care matters – an emerging topic.

Nidus was set up by community groups (including the Alzheimer Society of BC, Council of Senior Citizens Organizations, Disability Alliance, and Inclusion BC) who led the law reform that created health care consent legislation and the Representation Agreement Act.

 

Self-help by Videos

Click for Getting Started

Click to watch Planning for Health and Personal Care

 

Interactive Presentations

Click for a list of free webinars/presentations  (Special topics in October for Personal Planning Month)

 

Self-help by web pages

• For adults who are mentally capable of understanding the nature and effect of planning. You may have a recent diagnosis of a health condition or simply want to be proactive. Plan for incapacity and end-of-life, click for Future Path and link to (RA9) form.

• If you are helping an adult whose mental capability to understand is in question (temporarily or ongoing):

           → click if helping due to disability in adulthood such as severe stroke, advanced dementia or other
               conditions.
           → click if helping due to disability at birth or childhood.

 

Review of other resources

There are some errors or omissions in the My Voice booklet from the Ministry of Health. Nidus was asked to provide details and you can review these in our Videos.

Read our post “Why are organizations giving out wrong information about BC laws?”                 

 

Health Care Consent Information

How are health care decisions made if you are incapable of informed consent?

Other HCC Resources – including Your Rights as a Patient, Your Rights to Refuse Health Care and more, Notice Required for Major Health Care.

 

To view BC legislation

Go to www.bclaws.ca > Laws of British Columbia > Statutes and Regulations > select by first letter of name – for example, ‘H’ for Health Care Consent and Care Facility Admission Act