The principle that “every person is inviolable and is entitled to the integrity of his person” is found in the Civil Code of Quebec. Essentially, no person can interfere with you in any way without your consent.

A person’s right to inviolability can be interpreted from many angles. However, this Infosheet deals specifically with the application of this principle to a person’s health and medical care.

An individual’s right to integrity of his person is interfered with when lasting physical, psychological, or emotional consequences are caused. For example, Paul is a Jehovah’s Witness and refuses a blood transfusion because of his religious beliefs. The hospital staff and doctors must respect this decision even though it could directly lead to John’s death. For his choice to be respected, it must be free and enlightened.

The right to inviolability and integrity of the person, however, is not absolute. The Civil Code and certain specific laws provide for situations where it is permissible to interfere with someone without his free and enlightened consent. For example, consent is not required in emergency situations. If a patient arrives in hospital in cardiac arrest, the doctors are not obliged to obtain consent from the patient or his representative because the urgency of the situation calls for immediate intervention. Nor would hospital staff be obliged to obtain consent to give a patient hygienic care such as a bath or taking his temperature.

As we saw above, consent to medical care must be given when that care interferes with the integrity of the person. In order to be valid, consent must satisfy certain conditions imposed by legislation. This is meant to ensure that a person’s freedom to consent is respected.

To be valid, consent must satisfy two conditions:

• it must be free;
  
• it must be enlightened.

Consent is free when it is given willingly. It is not free when it is given due to pressure in the form of violence, or physical and/or mental constraints.

Consent is enlightened if it is given knowingly. For this condition to be met, doctors have a duty to provide information. Specifically, before obtaining consent, the doctor must reveal all the necessary information, including the nature and severity of the medical intervention, possible complications, major risks, and any other particular or uncommon risks. For more information, consult the Infosheet entitled Medical liability.

The rule of free and enlightened consent applies when a person is capable of consenting. Another person must consent on your behalf if you are incapable of giving consent due to age or an inability to express your wishes and understand the consequences of your actions. This is called substitute consent.

The inability to provide consent must be confirmed before substitute consent is required. Even if you are under protective supervision (curatorship, tutorship), this does not necessarily prevent you from consenting to care yourself. To learn more about protective supervision, you can consult the Infosheet entitled Instituting protective supervision.

Various factors are used to determine whether you are capable or incapable of consenting to care. You must be able to understand:

• the nature of the illness for which treatment is being offered;
  
• the nature and purpose of the treatment;
  
• the risks and benefits of the treatment;
  
• the risks of not following the treatment.

Furthermore, your ability to properly understand must not be affected by your illness.

Where a person of full age cannot consent to care herself, consent is to be given by one of the following persons:

• the mandatary;
  
• the tutor;
  
• the private curator;
  
• the person designated by the Public Curator and to whom custody has been delegated, unless the Public Curator has reserved the right to consent to specific care. For more information, you can consult the Infosheet entitled Legal representation of an incapacitated person by the Public Curator.

But if a person of full age who is incapable of providing consent is not represented by a mandatary and is not under protective supervision, consent is given by one of the following people:

• the spouse, whether married, civil union, or de facto ;
  
• where there is no spouse, the next of kin or;
  
• any interested party (for example, a close friend).

A person who gives substitute consent on behalf of another person must act solely in the interest of that person by taking into account, to the extent possible, the wishes expressed by that person before they became incapable. These wishes could have been expressed verbally or in a living will.

In addition, authorization to provide care may be given by the court where:

• the tutor, curator, or person having custody of the person incapable of giving consent to care is not in a position to provide consent;
  
• the tutor, curator, or person having custody of the incapacitated person refuses consent to care without valid reason;
  
• the incapacitated person categorically refuses to consent to care required by his state of health (except for emergency or hygenic care cases).

Doctors have the same duty to inform the person giving substitute consent as they do for a person capable of consenting. They are bound to disclose information on, amongst other things:

• the nature and seriousness of the intervention;
  
• the risks to health and life according to the circumstances of each case;
  
• the beneficial and desirable nature of the care;
  
• the risks incurred compared to the expected benefits.

Emergency situations are an exception to the obligation to obtain consent contained in the Civil Code of Quebec, because a person’s life is in danger or his integrity is threatened and consent cannot be obtained in due time.

As this is an exceptional situation, a doctor can only do what is needed to alleviate the patient’s condition. The doctor should only provide what is required by the emergency situation, even though additional care may be desirable.

A minor below the age of 14 cannot alone consent to care. Authorization from a parent or tutor is always necessary whether or not the care is required by her state of health.

The court’s permission is required to allow care for a minor under the age of 14 in the following circumstances:

• the parent(s) or tutor unjustifiably refuse the care required by the minor’s state of health;
  
• the parent(s) or tutor is not in a position to give consent;
  
• the care is not required by the minor’s state of health and represents a serious risk to his health or may cause serious or permanent damage.

In principle, a minor aged 14 or over can consent alone to care.

However, the parents or the tutor must necessarily consent to any care not required by his state of health (for example, plastic surgery) that represents a serious risk to the minor’s health and can cause serious or permanent damage.

Also note that the parents or the tutor must be advised when the minor spends more than 12 hours in a social services or health establishment.

Court intervention is necessary where the minor refuses care unless there is an emergency and his life is endangered or his integrity threatened. In this case the consent of the person having parental authority or the tutor will suffice.