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Health Care Users and Professionals
No one can be forced to submit to care without his consent, whether it is for an examination, taking a specimen, or any other procedure. Quebec law clearly states that a patient's consent must be obtained before care is provided.
In this Infosheet, Éducaloi explains the rules regarding consent to care and the exceptions to this freedom of choice.
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:
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:
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:
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:
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:
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:
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:
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.
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