Adultscanusuallymakemedicaldecisions(consent to treatment)on their own.Butthey may need someone to make medical decisions for themif their decision-making ability is affected by an illness or disability.This is called substituted consent.
Deciding Whether SomeoneCanMakeMedicalDecisions
Whensuggestingtreatment, medical professionals mustevaluatewhethertheirpatientsare ableto make medical decisions. In law, this is called the capacity to consent.
Having a mental illness or disability doesn’t automatically mean a person can’t make their own medical decisions. Even a person under tutorship or for whom a protection mandate has been hom*ologated may be able to make certain medical decisions on their own. Also, refusing treatment that could be beneficial doesn’t necessarily mean someone can’t make medical decisions on their own.
When deciding whether a patient can make medical decisions, the doctor must evaluate whether the patient canunderstandthese things:
- the natureofhisillness
- the nature and purpose of thetreatment
- theadvantages and risks ofthe treatment
- the risks of not having the treatment
Also, thepatient’sillness must not affecthiscapacity to consent.If these criteria are met,thepatientcan consent to treatment onhisown.Of course, patients who are unconscious can’t consent to treatment.
Patients’ ability to make medical decisions can change over time. For example, patients with dementia may be able to make medical decisions one day but not the next because their condition fluctuates. Doctors must therefore evaluate patient’s capacity to consent on an ongoing basis.
Patients may be able to make some medical decisions but not others. For example, someone may be able to consent toacommon procedurelikeablood test, but not toamore complex procedure likean organ transplant.
Who Makes Decisions forAdultsWhoCan’t Consent?
Planning Ahead
Peoplecan express their wishes in advance in case they becomeunable tomakemedicaldecisions. For example, people cancreateadvance medical directives.
If a patientbecomesunable to makemedicaldecisionsand the patienthasadvance medical directives, the doctor must follow the instructions in thedirectives.
Who Can ProvideSubstituted Consent?
Ifthepatientdoesn’t haveadvance medical directives, these people can consent for the patient:
- the patient’s legal representative (mandatary or tutor), if there is one
- if there is no legal representative, the patient’s married or civil-union spouse, or common-law partner
- if there is no spouse or partner, or if the spouse or partner can’t give consent, the patient’s close relative or someone concerned for the patient, like a close friend
Respecting the Patient’s Best Interests
Thepersonconsenting for the patientmust actinthe patient’sbestinterests.The benefits of the treatment must be greater than the risks involved.
Thepersonmustalsotake thepatient’s wishesinto account.Patientsmight have madetheirwishes knownaheadof time, for examplethroughaliving willor aprotection mandate.
The Court
Insome situations,thecourt mustmake medical decisions for patientswho can’tconsent on their own.The court’s permission is neededin these cases:
- it’s impossible to get someone else to consent for the patient
- the person who can give substituted consent refuses to consent for no good reason
- the patient clearly refuses care required for their health
Exception:The court’s permission isn’t needed to giveemergencyor hygienic care to a person who can’tconsent on their own.Health care professionals can provide this care even if the patientrefuses.
