In section 2(1) of the Health Care Consent Act, “personal assistance service” is defined as follows:
“personal assistance service” means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service; “[75]
There is nothing in the regulation to the Health Care Consent Act that refers to personal assistance services so it is only necessary to look at the actual Health Care Consent Act to see where this term applies.
Section 2(1) of the Health Care Consent Act also includes a definition for the word "recipient" who is the person RECEIVING the personal assistance services.
“Recipient” means a person who is to be provided with one or more personal assistance services,
(a) in a long-term care home as defined in the Long-Term Care Homes Act, 2007,
(b) in a place prescribed by the regulations in the circumstances prescribed by the regulations,
(c) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or
(d) by a provider prescribed by the regulations in the circumstances prescribed by the regulations”[76]
There is NO regulation to the Health Care Consent Act at this time that defines additional "places" as in (b), additional "programmes" as in (c) or particular "providers" as in (d) of this definition of recipient. .
This explains why Personal assistance services sections apply only to personal assistance services delivered in long term care homes.
However, this does not mean that health and service providers can just provide personal assistance services without getting consent in other settings. The common law of consent would apply to those other situations. . Common law is law that exists without a statute. Consent is required to touch another person's body as otherwise it is battery or assault. To provide personal assistance services in any setting consent is required.
In practice, it’s not often necessary to get a "formal" consent to feed, bathe, reposition someone as people, even if incapable for this decision making, do not resist assistance with these activities of daily living or may temporarily object but may comply when approached again.
The sections on personal assistance services were included in the legislation to address those situations where a person, when incapable, is very resistant to something like bathing which would then create problems for their own health and lack of bathing could impact on other residents in a long term care home. If this happens, the staff in the long term care home then may get consent from the person’s SDM.
Similarly if the incapable person refused to eat foods necessary to maintain their state of health the staff could seek consent from that resident’s SDM to other means of getting appropriate nutrition to that person by changing the diet, feeding the person's foods in forms that they would eat, and so forth.