Access to Justice in Health Care

Developing a Review Tribunal for BC

Access to Justice in Health Care

Imagine you awaken in hospital after a car accident to learn that the physician has chosen your only family member — the sister who has never respected your beliefs — to make your health care decisions. She has agreed to chemotherapy treatments. Your best friend knows you do not want to go through chemo again. But no one is listening to her. You were diagnosed with dementia a year ago, and so your doctor determines you are incapable of making your own decision. You think you understand enough to make this decision.

If you or your friend want to challenge either the determination that you are not capable of making the decision about chemo, or the choice of your sister as temporary substitute decision maker, then one of you must file an application with the Supreme Court of BC under s 33.4 of the Health Care (Consent) and Care Facility (Admission) Act. Legal Aid BC will not provide a lawyer to assist with this matter. Neither of you has legal expertise. You are too physically fragile to leave the hospital. It will take weeks or months to get a hearing. Treatment is starting tomorrow.

Health care treatment decisions like this one have a significant impact on quality of life. They engage fundamental values and physical freedom. However, British Columbians can be fairly powerless when their mental capacity is called into question. When the Canadian Centre for Elder Law (“CCEL”) consulted with stakeholders across BC as part of their project on health care consent, older people living with dementia, family members, and advocates shared stories demonstrating lack of respect for decision-making autonomy. However, s 33.4 remains completely unused.

Following a recommendation in the 2019 CCEL Report Conversations about Care: The Law and Practice of Health Care Consent for People Living with Dementia, the CCEL undertook research to explore the possibility of developing an accessible health care consent and capacity assessment tribunal for BC. The Study Paper on Health Care Consent and Capacity Assessment Tribunals examines ten such functioning tribunals in Canada and Australia. The paper considers the Canadian tribunals, Ontario’s Consent and Capacity Board and Yukon’s Capability and Consent Board, and describes Australian tribunals exercising similar jurisdiction in relation to consent and capacity in health care. Many of the people who seek a remedy under these tribunals are living with disabilities. The experiences of these tribunals illustrates innovation and efficiency in supporting access to justice and tailoring proceedings around people’s unique needs and circumstances.

BC briefly experimented with a health care tribunal from 2000-2004. Only one of its seven heads of review jurisdiction ever came into force. The tribunal was abolished after making only eight decisions.

Article 12 of the Convention on the Rights of Persons with Disabilities, which Canada ratified in 2010, declares that people with disabilities have the right to exercise legal capacity. The Convention requires States Parties to ensure adequate supports for exercising capacity, which in turn calls upon Canada to revisit many laws and practices to ensure compliance. One of the areas worth reconsideration is access to a realistically accessible review mechanism for health care treatment decisions and incapability determinations. This new study paper identifies policy and legislative considerations that would need to be considered in configuring an accessible tribunal in BC, and lays the groundwork for the public policy exercise of developing a truly accessible non-court review mechanism. Find the paper at bcli.org/ccel.