Une pensée d’avance –
Think Ahead
Contemporary Challenges in
the Law of Consent
Angela Campbell
McGill Faculty of Law
General Principles
The law in relation to consent is predicated on a
series of principles that align with liberal
perceptions of personhood and human rights:
• Integrity
• Autonomy
• Inviolability
• Personal Security
• Privacy
General Principles –
Quebec Civil Law
Charter of Human Rights and Freedoms (art. 1 para.
1):
1. Every human being has a right to life, and to
personal security, inviolability and freedom.
Civil Code of Québec (arts. 3, 10, 11):
3. Every person is the holder of personality rights,
such as the right to life, the right to the inviolability
and integrity of his person, and the right to the
respect of his name, reputation and privacy.
These rights are inalienable.
General Principles –
Quebec Civil Law
Civil Code of Québec (arts. 3, 10, 11) (con’t):
10. Every person is inviolable and is entitled to the integrity of
his person.
Except in cases provided for by law, no one may interfere
with his person without his free and enlightened consent.
11. No person may be made to undergo care of any
nature, whether for examination, specimen taking, removal
of tissue, treatment or any other act, except with his
consent.
If the person concerned is incapable of giving or refusing his
consent to care, a person authorized by law or by mandate
given in anticipation of his incapacity may do so in his
place.
General Principles –
Quebec Civil Law
Act Respecting Health Services and Social Services
(ss. 8-10, esp. s.9)
9. No person may be made to undergo care of
any nature, whether for examination, specimen
taking, treatment or any other intervention, except
with his consent.
Consent to care or the authorization to provide
care shall be given or refused by the user or, as the
case may be, his representative or the court, in the
circumstances and manner provided for in articles
10 and following of the Civil Code.
General Principles –
Common Law Canada
Ciarlariello v. Schacter, [1993] 2 S.C.R. 119
It should not be forgotten that every patient has a
right to bodily integrity. This encompasses the right
to determine what medical procedures will be
accepted and the extent to which they will be
accepted. Everyone has the right to decide what
is to be done to one's own body. This includes the
right to be free from medical treatment to which
the individual does not consent. This concept of
individual autonomy is fundamental to the
common law and is the basis for the requirement
that disclosure be made to a patient.
General Principles –
Common Law Canada
Four Requirements of Informed Consent:
 Voluntariness
 Capacity
 Refer both to the treatment and its provider
 Informed (Reibl v. Hughes, [1980] 2 S.C.R. 880)
(Erin Nelson, “The Fundamentals of Consent” in
Downie, Caulfield & Flood, Canadian Health Law
and Policy, 2nd ed (2002)).
Consent Complications
 Questionable or diminished capacity
 Emergencies & other exceptions
 Medical and biotechnological innovations altering what
qualifies as a material risk worthy of disclosure
 Assessing what counts as a viable procedure to be
offered to a patient and who determines this
 Cultural and social pluralism grounding objections to the
provision or acceptance of care
 Enhanced patient vigilance, awareness and advocacy
 The role of expert evidence in determining risk, viability of
procedures, likely patient outcomes
Case Study #1:
Consent by Patient; Refusal by Health
Care Provider/Institution
Elements of the Conundrum:
• Patient is critically or terminally ill, usually in need of medical
technology to breathe, be fed and/or be hydrated.
• Patient (or representative) seeks (and consents to) medical
interventions that may prolong the patient’s life.
• Treating health care team/hospital, resists provision of therapy in
question on the basis of “medical futility” – i.e., belief that the
therapy will not improve the patient’s condition or health.
In such scenarios, what role can/should law play? Is it equipped to
address “power struggles” between families and physicians?
See JL Bernat, “Medical futility: definition, determination, and disputes
in critical care” (2005) 2(2) Neurocrit Care198.
Case Study #1:
Consent by Patient; Refusal by Health
Care Provider/Institution
Maraachli v. Fraser, 2011 ONSC 124
Health Care Consent Act, S.O. 1996, c.2, Sched. A.
21. (1) A person who gives or refuses consent to a
treatment on an incapable person’s behalf shall
do so in accordance with the following principles:
[…]
2. If the person does not know of a wish applicable to
the circumstances that the incapable person
expressed while capable and after attaining 16 years
of age, or if it is impossible to comply with the wish, the
person shall act in the incapable person’s best
interests. [emphasis added]
Case Study #1:
Consent by Patient; Refusal by Health
Care Provider/Institution
Emotive Judging?
“I also admitted photographs of Joseph. They show a
lovely little baby boy and I thank you for sharing them
with me. However, they are but snapshots in time and
really cannot assist me in coming to a conclusion on
the law.
[…]
I know that this is most heartbreaking. It is my hope that
in time you will find peace. I'm so sorry.”
Maraachli v. Fraser (paras. 9 and 17)
Case Study #1:
Consent by Patient; Refusal by Health
Care Provider/Institution
Cf Sawatzky v Riverview Health Centre (1998), 167
D.L.R. (4th) 359 (Man QB)
“This is one of the most difficult cases that I have had
to deal with, as it may not only change lives, but it may
have the effect of ending a life. I can assure you that
the last week has been most difficult for me as I have
wrestled with the competing issues that have been
raised.”
(at para. 3)
Case Study #1:
Consent by Patient; Refusal by Health
Care Provider/Institution
Summary of Issues for Jurists’ Contemplation:
• Mediating tensions between families and health care
providing teams: what tools do lawyers and judges have at
their disposal to determine WHO is best placed to make
decisions (NB: role of expert evidence).
• Are medicine and law making “quality of life” value
judgments?
• Confronting the reality of health care resource allocation and
costs
• Identity of the “consenter”
• Implications for cases on the flip-side of the end-of-life
decision-making spectrum – i.e., consent REFUSED to therapies
that promise to sustain and prolong life.
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
General Principles
Quebec Civil Law
• Consent to care is given by the child’s
parent/tutor BUT a child 14 or older can, in
general, give consent to care required by his/her
health. (art. 14 CCQ; see also arts. 17 and 18)
• Where required medical care is refused either by
a parent for a child under 14 or by the child if 14
or older, judicial authorization is required to treat.
(art. 16 CCQ)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
Canadian Common Law
Mature Minor doctrine:
“I would hold that as a matter of law the parental right
to determine whether or not their minor child below
the age of 16 will have medical treatment terminates if
and when the child achieves a sufficient
understanding and intelligence to enable him or her to
understand fully what is proposed. It will be a question
of fact whether a child seeking advice has sufficient
understanding of what is involved to give a consent
valid in law.”
Gillick v West Norfolk and Wisbech Area Health
Authority and another, [1986] 1 AC 112 (Lord Scarman)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
Canadian Common Law
Codified consent provisions for minors – e.g., Child and Family Services Act, C.C.S.M. c.
C80, ss. 25(8), 25(9):
25(8) Subject to subsection (9), upon completion of a hearing, the court may authorize
a medical examination or any medical or dental treatment that the court considers to
be in the best interests of the child.
25(9) The court shall not make an order under subsection (8) with respect to a child
who is 16 years of age or older without the child’s consent unless the court is satisfied
that the child is unable
a) to understand the information that is relevant to making a decision to consent or
not consent to the medical examination or the medical or dental treatment; or
b) to appreciate the reasonably foreseeable consequences of making a decision to
consent or not consent to the medical examination or […] treatment.
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
Minors’ Medical Decisions –
The Supreme Court of Canada Speaks
A.C. v. Manitoba (Director of Child and Family
Services), 2009 SCC 30
“The question is whether the statutory scheme strikes a
constitutional balance between what the law has
consistently seen as an individual’s fundamental right
to autonomous decision making in connection with his
or her body and the law’s equally persistent attempts
to protect vulnerable children from harm.”
(Abella J.)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
A.C. v. Manitoba (con’t)
“Where a young person comes before the court under s.
25 […], it means that child protective services have
concluded that medical treatment is necessary to protect
his or her life or health, and either the child or the child’s
parents have refused to consent. In this very limited class
of cases, it is the ineffability inherent in the concept of
‘maturity’ that justifies the state’s retaining an overarching
power to determine whether allowing the child to
exercise his or her autonomy in a given situation actually
accords with his or her best interests. The degree of
scrutiny will inevitably be most intense in cases where a
treatment decision is likely to seriously endanger a child’s
life or health.”
(Abella J., emphasis added)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
A.C. v. Manitoba (con’t)
“[W]hile courts have readily embraced the concept
of granting adolescents a degree of autonomy that is
reflective of their evolving maturity, they have
generally not seen the ‘mature minor’ doctrine as
dictating guaranteed outcomes, particularly where
the consequences for the young person are
catastrophic.”
(Abella J.)
The majority thus interprets the mature minor doctrine
as consistent with the applicable statute – that is,
subject to a “robust conception” of the “best interests
of the child” standard.
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
A.C. v. Manitoba (con’t)
“The CFSA provides a complete statutory scheme
with respect to medical decisions for children and
adolescents deemed to be in need of state
protection. This comprehensive scheme displaces
the existing common law regarding medical
decision making by ‘mature minors’. In my view,
the constitutional analysis must therefore center on
the statute itself.”
(McLachlin CJ, concurring)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
A.C. v. Manitoba (con’t)
“This is a disturbing case. The Canadian Charter of
Rights and Freedoms enshrines in our highest law the
liberty and independence of a mature individual to
make life’s most important choices free of government
intervention, provided there is no countervailing social
interest of overriding importance. This proposition is
tested on this appeal by A.C., a Jehovah’s Witness,
who is a mature minor.”
(Binnie J., dissenting, emphasis added)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
A.C. v. Manitoba (con’t)
“In short, s. 25 CFSA is unconstitutional because it
prevents a person under 16 from establishing that she
or he understands the medical condition and the
consequences of refusing treatment, and should
therefore have the right to refuse treatment whether or
not the applications judge considers such refusal to be
in the young person’s best interests, just as is now the
case with a “mature minor” who is 16 or 17 years old.”
(Binnie J.)
Case Study #2:
Refusal by Patient; Willingness to Treat by
Health Care Provider/Institution – The Case
of Minors
Summary of Issues for Jurists’ Contemplation:
 Preference for a bright-line rule based on a fixed
aged or for a discretionary, flexible approach?
 Wrangling with the concepts of maturity and
capacity – the need for interdisciplinary
guidance
 Illumination of factors and interests that may
justify interventions to which no consent is given.