In principle, no. The respect of a person’s body is a fundamental right. That’s why, unless the law expressly states otherwise, a patient cannot be treated against his will. The greater the medical care proposed, the greater the violation to the physical integrity of the patient will seem if there was no consent.

For example, Paul, a Jehovah’s Witness, refuses a blood transfusion because of his religious beliefs. The medical personnel will have to respect his decision even though it could lead to his death. Of course, Paul must make his decision knowingly.

The law says that in some situations, it is possible to subject a person to medical care without obtaining his consent.

For example, a patient arrives at the E.R. in cardiac arrest and nothing on the spot indicates his refusal to be treated. The doctors don’t need to get his consent to save his life. There is a real emergency and there is nobody to give consent before it is too late.

As seen above, consent to medical care must be given when that care interferes with the integrity of the person.

For the true will of a person to be respected, his consent must be “free and enlightened.”

Freely consenting

Consent is given "freely" when it is given willingly. It is not free when the person in question feels that she must consent because her relatives, doctor, social circle are pressuring her. Obviously, if there are threats added, consent is even less free. Remember that you are not being pressured or threatened if your doctor tells you that you will get worse if he doesn’t treat you. That’s relevant information that allows you to choose freely.

Enlightened consent

Consent is "enlightened" if it is given knowingly. You must know exactly what it is that you are agreeing to. This imposes a duty on doctors to provide information. Specifically, before obtaining the patient’s consent to care, 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 our Infosheet Medical liability.

When a person is no longer able to understand what’s happening to him because of his mental state or because he is unconscious, another person must be called upon to consent on his behalf. This is called “substitute consent”.

Before asking for substitute consent, the doctor must make sure that his patient is really unable to give his valid consent to the care proposed. A person under protective supervision (tutorship, curatorship) is not necessarily prevented from consenting to care on his own. To learn more about protective supervision, consult our Infosheet Instituting protective supervision.

Various factors are used to determine whether a patient can or cannot consent to his own to care. The patient 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 involved if he does not get the treatment.

Also, the patient’s ability to properly understand must not be affected by his illness.

When an adult cannot consent on his own to care that’s required by his state of health, consent must 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.

Or, when there are none of the above people:

• by the spouse or partner;
  
• then, by a close relative;
  
• then finally, by any person who shows a special interest in the adult (his best friend, for example).

The person who gives substitute consent must act solely in the interest of the patient. He must take into account the patient’s wishes. It is possible that the patient had foreseen what was going to happen and given instructions on what’s to be done, in his living will, for example.

In the following situations, it is the Court that will have to authorize or refuse care for the patient:

• It is impossible to obtain substitute consent;
  
• The person who can give substitute consent refuses to do so without a valid reason;
  
• The patient categorically refuses the care required by his state of health.

Please note that it is not necessary to obtain the Court’s permission to give emergency or hygienic care to an adult who is unable to consent on his own.

Doctors have a duty 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.

This duty to disclose information is the same, whether the doctor is directly asking the patient for his consent or whether he has to go through the person who can give substitute consent.

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 and assuming that nothing allows the doctor to know what the patient wants in time, he must do what is needed to alleviate the patient’s condition. The doctor must keep himself from going beyond what is required by the emergency.

For example, an unconscious patient arrives at the hospital following an accident. The personnel can do whatever is needed to keep him alive and to eliminate the immediate risks to his health. But they can’t “take advantage” of the situation to treat his high cholesterol!

A child 14 years and under cannot consent to care on his own. The authorization of a parent or tutor is always necessary, whether or not the care is required by the child’s state of health. In practice, the permission of one of the parents is enough when nothing indicates that the other parent might disagree.

The court’s permission is required if:

• the parents or tutor unjustifiably refuse the care required by the child’s state of health;
  
• the parents or tutor are prevented from giving their consent;
  
• the care is not required by the child’s state of health and represents a serious risk to his health or may cause serious or permanent effects.

In principle, a minor aged 14 years 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 his health and that can cause him serious or permanent effects.

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.

The Court’s permission is needed to care for a minor who refuses care unless there is an emergency and his life is endangered or his integrity threatened. In such a case, his parents’ or tutor’s consent is sufficient.