Consent to care is a fundamental right protected by law in Quebec: no care, however minor, can be given to you without your free and enlightened agreement. This principle protects your personal integrity, whether it involves a simple examination or a major procedure. Its rules become more complex, however, as soon as a minor, an incapable person, or an emergency situation comes into play. This article explains what consent to care is, who can give it depending on your situation, and the possible recourse if your rights weren’t respected.
Key takeaways:
- Consent to care must be free and enlightened to be valid: without it, no care can legally be administered.
- The law gives you the right to be informed of the nature, risks, and alternatives of a form of care before consenting to it.
- An adult is presumed capable of consenting, even under tutorship or a homologated protection mandate.
- Exceptions exist (life-threatening emergency, confinement in an institution) where care may be given without consent.
- Consent obtained in violation of these rules can be the subject of a complaint or legal recourse.
What is consent to care?
Consent to care is the agreement a person gives before receiving care. This principle flows directly from the right to personal integrity, recognized under article 10 of the Civil Code of Quebec: every person is inviolable, and no one may interfere with them without their free and enlightened consent, except in cases provided for by law.
What counts as “care”?
Article 11 of the Civil Code specifies that the term “care” covers a broad reality, regardless of its nature. This includes, in particular:
- Examinations and specimen taking
- Treatments and surgical procedures
- Accommodation in a health institution
- Nutrition and contraception
- Participation in a research project
“Free” consent
Consent is free when it’s given willingly, without pressure or coercion. A doctor who explains the risks of refusing care isn’t applying pressure: they’re informing you, which is different from forcing a decision. Consent stops being free as soon as the patient feels obligated to accept because of insistence from loved ones or the care team.
“Enlightened” consent
Consent is enlightened when the person has all the information necessary before deciding. Without this information, even a clearly expressed “yes” doesn’t carry full legal weight. The next section details exactly what the professional must communicate.
What happens if consent isn’t free and enlightened?
Care given without free and enlightened consent isn’t legally valid, except where the law provides an exception. The patient can then file a complaint against the professional or institution involved, and their civil liability may be engaged. This consequence applies even if the care was, medically speaking, beneficial to the person: the absence of valid consent is in itself a violation of personal integrity.
The right to be informed before consenting
You have the right to obtain all the information necessary before accepting or refusing care. This duty to inform falls on the healthcare professional, who must make sure the patient truly understands what’s being proposed before receiving their consent.
Specifically, the professional must inform you about:
- The nature of your illness or condition
- The nature and purpose of the proposed care
- The risks and benefits associated with the care
- The risks involved if you refuse the care
A failure to meet this duty can engage the physician’s liability, in the same way as an error in administering the care itself.
What laws govern consent to care in Quebec?
Consent to care rests primarily on the Civil Code of Quebec, whose articles 10 to 25 govern personal integrity and the rules of consent. The Charter of Human Rights and Freedoms enshrines the right to integrity as a fundamental right, in its section 1.
Two laws complete this framework for specific situations: the Act Respecting End-of-Life Care, which governs the right to refuse or discontinue life-sustaining treatment, and the Act Respecting Health Services and Social Services, which sets out institutions’ obligations toward users.
Who can consent to care depending on your situation?
The person authorized to consent varies depending on the patient’s age and capacity. The table below summarizes the main situations provided for by law.
A capable adult
A capable adult consents to their own care. This presumption of capacity applies even if the person is under tutorship or covered by a homologated protection mandate: a protective regime doesn’t automatically remove the right to consent to one’s own care.
A minor aged 14 or older
A minor aged 14 or older can consent alone to care required by their state of health, without their parents necessarily being informed. If their condition requires a stay of more than 12 hours in an institution, the holder of parental authority must nonetheless be notified.
A child under 14
For a child under 14, consent is given by the holder of parental authority or by the tutor. If the tutor refuses, without valid justification, care required by the child’s state of health, court authorization becomes necessary.
Capacity to consent: how is it assessed?
The healthcare professional assesses capacity to consent every time care is proposed, regardless of the diagnosis or any protective regime in place. A person is considered incapable if they’re unable to understand:
- The nature of their illness
- The nature and purpose of the proposed care
- The benefits and risks of the care
- The risks involved if the care isn’t given
- That their state of health impairs their ability to consent
An incapable adult: substitute consent
When an adult is found incapable, another person consents on their behalf, following a specific order set out in article 15 of the Civil Code: substitute consent. This person must respect, as far as possible, the wishes the patient expressed while capable.
| Situation | Who consents | Particularity |
| Capable adult | The person themselves | Presumption of capacity, even under tutorship or a homologated mandate |
| Minor 14 and older | The minor, alone | Parents notified only if the stay in an institution exceeds 12 hours |
| Minor under 14 | Holder of parental authority or tutor | Court authorization required if refusal is unjustified |
| Represented incapable adult | Mandatary, tutor, or curator | Must respect the adult’s known wishes |
| Unrepresented incapable adult | Spouse, close relative, or person showing a special interest | Order of priority set by law; Public Curator as a last resort |
| Life-threatening emergency | Authorized person contacted first, otherwise care given without consent | Only if life is in danger and consent can’t be obtained in time |
Do you have the right to refuse care?
The right to consent necessarily includes the right to refuse care, even life-saving care, if that refusal is itself free and enlightened. This rule applies equally to a capable adult and to a minor aged 14 or older. For a full review of the right to refuse medical treatment, the conditions to be met, and situations where a refusal can be challenged, contact us.
What are the exceptions to consent to care?
Certain situations exceptionally allow care to be given without prior consent. In the event of a life-threatening emergency, when the patient’s life is in danger and consent can’t be obtained in time, medical staff may act without authorization, but only for the care necessary to remove the danger.
Other exceptions exist for essential hygiene care when the person authorized to consent can’t be found, as well as in the context of confinement in an institution or a court-ordered psychiatric assessment. These situations fall under a particular legal framework, on which our human rights lawyers can advise you.
Recourse if your consent to care wasn’t respected
If you were given care without your free and enlightened consent, or without receiving the information necessary to decide, you have concrete recourse available. You can first file a complaint with the complaints commissioner for the institution involved.
Depending on the circumstances, a civil recourse may also be considered if this failure caused you harm. A lawyer specializing in health law can assess your situation, guide you through these steps, and represent you if the matter needs to go before the courts.
Need help asserting your rights?
Consent to care protects one of your most fundamental rights: the right to decide what happens to your body. When this right hasn’t been respected, whether for yourself or a loved one, it’s important to know your options. MedLégal’s team supports users of the healthcare system through these steps, from an administrative complaint all the way to court proceedings if necessary. Contact us to discuss your situation.
FAQ: Consent to care in Quebec
Does consent have to be given in writing?
No, not for care required by one’s state of health: verbal or implied consent is enough. Written consent is required, however, for care that isn’t required, such as sterilization or participation in a research project.
Can I change my mind after consenting to care?
Yes. The right to consent includes the right to withdraw consent at any time, even verbally, including during treatment that’s already underway.
Can the Public Curator consent to my care?
Yes, but only as a last resort, when the incapable person is completely isolated and no relative is able to give substitute consent.
What’s the difference between a protection mandate and advance medical directives?
A mandate designates a person to decide on your behalf if you become incapable. Directives express your own wishes directly for specific care, without going through a third party.
Is consent given under family pressure valid?
No. To be valid, consent must be given willingly. If it’s obtained under pressure from loved ones or the care team, it’s not considered free.
Can a professional refuse to follow my advance medical directives?
No. As long as the care in question is deemed required by the physician, your directives must be respected, even if they go against the beliefs of the person called upon to consent on your behalf.
