Conversation About Care: The Law and Practice of Health Care Consent for People Living with Dementia in British Columbia

Abstract

While health care consent law applies to everyone, the issue raises particular challenges in relation to people living with dementia — not only because dementia can impact mental capacity, but also because people living with dementia confront assumptions that they are mentally incapable of making their own health care decisions, regardless of their actual abilities. Most forms of dementia are more prevalent among older people, and our population in British Columbia is aging. As a result, health care consent for people living with dementia will become an increasingly important legal and health policy issue.

This project on health care consent was developed by the Canadian Centre for Elder Law (CCEL), in collaboration with the Alzheimer Society of BC, to explore the law, policy, and practice with respect to health care consent for people living with dementia in BC. Conversations about Care examines law and practice in concert both to ensure legislation reflects the realities of practice, and to consider whether the barriers to good practice are a problem related to the substance of legislation, its implementation, or a combination of both. The goal is to ensure our legal framework in relation to informed consent is sufficiently robust to protect the rights of people living with dementia and their legal substitute and supportive decision makers for health care, and to enhance and clarify the law where needed.

The report, which reflects over two years of research and consultation, contains 34 recommendations that address law reform, access to justice and legal aid, public and health care professional legal education, and systemic barriers to informed consent, such as physician-billing and access to language interpretation. The recommendations were developed with a 15-person inter-disciplinary advisory committee after consulting with people living with dementia, family caregivers, health care professionals, and other key stakeholders from across BC.

Keywords: dementia, informed consent, substitute decision making, mental capacity, health care consent, access to justice, public legal education, law reform, long-term care, supported decision-making