Consent to care is the clearest example of the inviolability of a person who is deemed incapable. They can authorize or refuse a proposed treatment.
Under the Civil Code, anyone, including individuals under protective supervision or a mandate, is presumed to be capable of consenting to care. The capacity to consent or refuse must be checked every time a treatment is proposed.
A patient is deemed incapable of giving consent if they cannot understand:
What is acceptable care?
Acceptable care or treatments are supposed to improve the patient’s health. The expected improvement must appear to outweigh any side effects that may result from the treatment.
When someone is deemed incapable of consenting to care, the tutor, curator or mandatary must inform themselves before giving their consent by asking the health professional the following questions:
If the decision concerns an organ donation, autopsy or participation in a research project, the representative of the person should consult a legal advisor or seek advice from the Curateur public.
If there is any doubt about the decision, you should consult the tutorship council and, if applicable, family and friends, or ask the Curateur public for advice. However, the only authorization a health professional will recognize is that given by the tutor, curator or mandatary.
Consent when there are several representatives
In cases where the court has appointed several representatives, the representative of the person is the only one authorized to consent to care if the protected person has been found incapable of doing so.
The beliefs and wishes the person expressed when they were lucid may run counter to those of their representative. The representative must respect them, even when they go against their personal convictions. This type of situation often arises when the person has reached the terminal phase of their illness.
Sometimes, despite their tutor’s, curator’s or mandatary’s consent, a patient who has been declared incapable of consent will categorically refuse treatment. In this event, according to the Civil Code, and in the person’s sole interests, the court may be asked to authorize the treatment despite the person’s refusal.
The health institution must:
Yes, in an emergency, when the tutor, curator or mandatary cannot be reached in time, the health professional may proceed without receiving authorization. Hygiene care may also be administered without obtaining consent.
If the patient is not under protective supervision or a mandate, consent may be given by the following individuals: