Consent to care

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.

What is the capacity to consent to care?

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:

the nature of their illness;
the nature and purpose of the treatment;
the risks associated with the treatment;
the risks involved if the treatment is not given;
that their state of health affects their capacity to consent.

Consent by the tutor, curator or mandatary

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:

Why is this treatment necessary for the mental or physical health of the protected person?
How will it benefit the person and why is it appropriate at this time?
What are the risks compared with the expected benefits?

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.

Respecting the wishes of a patient under protective supervision

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.

If a person incapable of consent categorically refuses treatment

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.

Responsibility of health institution

The health institution must:

inform the representative when a patient under protection refuses care when they are capable of consent;
apply to the court for authorization to treat a patient deemed incapable of consent who categorically refuses treatment despite the representative’s consent.

May an institution administer treatment without consent?

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.

Who consents if the patient has no tutor, curator or mandatary?

If the patient is not under protective supervision or a mandate, consent may be given by the following individuals:

spouse: married, civil union or common-law;
close relative;
anyone showing a special interest in the person;
the Curateur public, if the person is isolated.

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