Adult patients usually make decisions on their own about whether to agree to health care. This agreement is called "consent".
But if they don't understand what's going on because their mental abilities are weakened or damaged, or they are unconscious, then someone else must consent for them.
When consent is given for someone else, its is called substituted consent.
Before asking for substituted consent, a doctor must make sure the patient is really not able to consent to the treatment. Even patients under a legal protection mechanism, such as tutorship or curatorship, might still be able to give valid consent to health care on their own.
Deciding Whether Someone Can Make Decisions
To see whether a patient is able to consent to treatment, several factors must be considered. Patients who are unconscious can't consent. Patients who are conscious must be able to understand these things:
- the nature and purpose of the illness
- the nature and purpose of the treatment
- the advantages and risks of the treatment
- the risks of not having the treatment
Also, the patient's illness must not affect the patient's understanding of these issues.
Note that even people found to be unable to care for themselves or their property on their own still have some say about their medical care. These people are referred to as being legally "incapable". If an incapable patient is refusing all health care, then it's up to a court to decide. The court must hear the opinion of the patient who is refusing treatment.
When incapable patients can't consent to treatment on their own, then one of these people can give substituted consent in their place:
If the patient has no spouse or partner, or the spouse or partner cannot give consent, then consent can be given by these people:
- a close relative
- someone else close to the patient, such as a close friend
The person giving substituted consent must act only in the best interests of the patient and must take the patient’s wishes into account. The patient might have made her wishes known ahead of time. For example, the patient might have a protection mandate giving instructions to relatives or made advance medical directives which doctors must follow.
However, in the cases listed below, a court must give permission to allow or refuse health care for an incapable patient:
- It's impossible to get substituted consent.
- The person who can give substituted consent is refusing to give it for no good reason.
- The incapable patient is clearly refusing care required for his or her health.
Court permission isn't needed for emergency care or hygienic care for an incapable person who refuses.In these cases, health care professionals can put aside the patient's refusal.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.