Consent to care is a fundamental principle of civil law and health law. It rests on the idea that no care may be provided without the person's agreement. This agreement must be free and informed. The Quebec Charter of Human Rights and Freedoms moreover confirms this principle. It specifically protects the right to integrity of every human being.

However, the rules applicable to consent to care vary depending on the age of the person involved. They differ notably depending on whether the person is a minor or an adult. This distinction regularly raises questions. This is the case for both health professionals and parents and loved ones.

Consent to care for adults

Under Quebec law, every adult is presumed capable of consenting to care that concerns them. This means that the adult decides alone on the care proposed to them.

This applies whether it involves a medical examination, a treatment, or a surgical procedure. To be valid, consent to care must be free and informed. It must also be given by a person capable of understanding the nature of the care, its risks, and its consequences.

The adult also retains the right to refuse care. This refusal may sometimes lead to serious consequences for their health. The role of the health professional is then to adequately inform the person. However, they cannot force them to receive treatment against their will.

When the adult becomes incapable of consenting, the situation changes. This is notably the case due to a cognitive disorder or loss of consciousness. Consent will then be given by their legal representative, in accordance with the rules provided by law.

Consent to care for minors

The situation is more nuanced when it involves a minor. In principle, it is the parents or the holder of parental authority who consent to the required care. This rule reflects the legal responsibility of parents to look after their child's health.

However, pursuant to article 14 of the Civil Code of Quebec, the minor benefits from a certain degree of autonomy. This varies depending on their age, maturity, and the nature of the care. Thus, from the age of 14, a minor may consent alone to care required by their state of health.

In such cases, parental consent is not required. However, it will be required when the care presents a serious risk to the minor's health. This provision aims to respect the evolving capacity for discernment of the adolescent. It nonetheless maintains enhanced protection in more serious situations.

For minors under 14 years of age, consent must be given by the parents or legal representative. This applies for all types of health care. That said, the minor's opinion remains relevant. It must be taken into consideration when their age and capacity for understanding allow it.

Practical issues and sources of dispute

Questions of consent to care can become particularly sensitive. This is notably the case in situations of disagreement between a minor and their parents. They can also give rise to conflicts between the parents themselves.

Furthermore, tensions can arise when care is refused for religious, cultural, or personal reasons.

In certain exceptional situations, a court may be called upon to intervene. It may thus authorize care deemed necessary to preserve the health or life of the minor. This can apply even despite parental opposition.

Conclusion

The distinction between consent to care for adults and for minors rests on a delicate balance. It seeks to reconcile individual autonomy and the protection of vulnerable persons.

While the adult enjoys broad decision-making freedom, the minor's autonomy is recognized in a gradual manner. It evolves according to their age and capacity for discernment.

These questions sit at the intersection of law, ethics, and health. They therefore merit particular attention. A legal analysis adapted to the specific context often remains essential. It helps prevent or resolve conflicts related to consent to care. At our firm, we are here to guide you through these sensitive matters.