Part 3 of the Health Care (Consent) and Care Facility (Admission) Act came into effect on November 4, 2019. Part 3 sets out the criteria for an adult to be admitted into a care facility.

There are three ways that a person may be admitted into a care facility. The person may consent if she is capable. Second, if she is not capable, an application may be made on her behalf by a substitute decision maker. Third, she may be admitted on an emergence basis, for example, if it is necessary to preserve her life or prevent serious physical or mental harm to her, or serious physical harm to any person.

If the person is incapable, section 22 sets out who may act as the substitute decision maker, in order of priority, beginning with the person’s guardian, followed by a representative under a representation agreement. Section 22 (1) and (2) provide:

22(1)A manager may admit an adult to a care facility without the adult’s consent if consent is given by

(a)a personal guardian who has authority to consent to the admission and is capable of giving or refusing consent, or

(b)a person listed in subsection (2) of this section, if the manager has made every reasonable effort to obtain consent from the adult but the adult is determined under section 26 to be incapable of giving or refusing consent.

(2)Subject to subsection (3), substitute consent to an adult’s admission to a care facility may be given or refused by the first, in listed order, of the following who is available and qualifies under subsection (4):

(a)the adult’s representative, if the representative has authority to consent to the admission;

(b)the adult’s spouse;

(c)the adult’s child;

(d)the adult’s parent;

(e)the adult’s brother or sister;

(f)the adult’s grandparent;

(g)the adult’s grandchild;

(h)anyone else related by birth or adoption to the adult;

(i)a close friend of the adult;

(j)a person immediately related to the adult by marriage.