Substituted Consent

Under review

If a person of full age is judged incapable of giving consent, even temporarily, a third party must be called upon to give consent in his place. This is called substituted consent. In Québec’s legislative framework, the rules concerning substituted consent vary with the care required and not with the state of health of the incapable person.

If the care is not required, (care provided in the context of research, organ donation), consent may only be given by a legal representative, tutor or curator of the person recognized as incapable, or by a duly identified mandatary; this is a person to whom the patient, before becoming incapable of giving consent, entrusted the right to make decisions on his behalf, if and when the situation arose 4. But this mandate is only valid when approved by the court. For a mandate to be approved by the court,

  • the incapacity to consent must be diagnosed by a physician;
  • there must be a similar opinion from another health professional, often a social worker.

On the basis of these two expertises combined, the court will certify the mandate. The authorization of the court is also necessary if the care presents a serious risk to health or could cause grave and permanent effects (Art. 18).

If the care is required, consent may be given by the legal representative or a close relative. In cases where there is no mandatary appointed beforehand by the patient, no tutor, or no curator, the spouse is approached first. If there is no spouse, a close relative (parent, child, brother or sister, etc.) who is a significant other to the patient may express his wishes to the best of his knowledge and speak on the patient’s behalf. Usually the relative or significant other who has been involved in the care of the patient is the one designated.

Furthermore, the patient must be presumed capable of giving consent until there is evidence to the contrary. He cannot be considered incapable simply because his choice differs from that of the physician. In all cases, the physician must ensure that conditions are favorable to giving consent, and

  • avoid family discord at the incapable patient’s bedside;
  • avoid any coercion of the patient, who is vulnerable owing to his disease;
  • prevent the patient’s vulnerability from becoming a real obstacle to free and informed decision-making, particularly for fear of abandonment or reprisal;
  • see to it that the consent is the outcome of a dialogue between the patient (or his close relatives or legal representative in case of incapacity) and the physician on the meaning of the procedure, and that it leads to a consensus, if possible.

Thus, in addition to the requirements for a  free and informed consent already mentioned, the substituted consent must be given in the best interests of the person replaced. Article 12 of the Civil Code of Québec stipulates that the substituted consent must meet the following requirements:

  • respect the best interests of the person, taking into account, as far as possible, any wishes the latter may have expressed;
  • ensure that the care is beneficial notwithstanding the gravity and permanence of certain of its effects;
  • ensure that it is advisable in the circumstances;
  • ensure that the risks incurred are not disproportionate to the anticipated benefit.

A substituted consent does not exempt the physician from taking into account the refusal of the person incapable of giving consent. In the case of an incapable person
of full age, for example, Article 16 of the Civil Code of Québec stipulates certain situations in which only the court may legally authorize care, thus ensuring a prudent second look. When the incapable patient categorically refuses, despite the consent of the third party, when the third party  is prevented from consenting or opposes a refusal that seems unjustified or when the care is not medically required and presents serious risks (Art. 18), the physician must ask the court for the authority to proceed. However, in cases of emergency or hygienic care, immediacy takes precedence.