The Physician’s Obligations under Certain Laws

Civil Code of Québec

Under review

Article 10 of the Civil Code of Québec establishes the right to personal integrity and inviolability. The growing importance given to personal rights over the last 30 years is in keeping with the movement to defend individual rights. Many factors have favored this evolution, among them, the spectacular advances in biotechnology and the rejection of medical paternalism.

Surgical procedures, medical procedures, experiments and confinement in an institution all violate the integrity of the person. When they are necessary for the person’s well-being, the legislator controls these violations and subjects them to strict conditions. Justified violations are permitted if the person consents to them or if the law provides for them.

One complete section of the Civil Code, that is, Articles 11 to 25, is devoted to care and focuses on two themes: consent and the nature of the care. The term “care” encompasses every kind of examination, sample-taking, treatment or procedure of a medical, psychological or social nature, required or not required for the physical or mental health of the person.

The consent to care must not only be obtained, but it must be voluntary and informed, meaning that the person gives it without  undue coercion or pressure after having received sufficient information. The person consents on his or her own behalf. Exceptionally, a third party may authorize a violation of the integrity of a person under his or her charge or protection. This is called a substituted consent to care, notably for a minor under the age of 14, a minor 14 years or older according to the nature of the care and the circumstances, or an incapable person of full age. Note that a legally incapable person’s right to give consent or to refuse it is not necessarily ruled out. In fact, the incapacity may often be limited to the administration of property. In other cases, the incapable person may understand the scope of the care and its effects and give consent voluntarily or refuse care. In emergency situations, consent to care is not required when a person’s life is in danger or his integrity so threatened that a consent cannot be obtained in due time.

Consent is usually expressed verbally. Article 24 of the Code requires a written consent when the care is not required by a person’s state of health, or if it involves alienation of a part of a person’s body or an experiment. However, a revocation may always be made verbally.

Confinement in an institution and mandatory psychiatric examination are exceptional care measures. They deprive the person of physical freedom and impose an examination that violates his or her right to personal integrity and inviolability. The legislator thus deemed it pertinent to dedicate one entire section to it. Articles 26 to 31 of the Code rigorously define these procedures and establish the ordinary rules on this matter, which is also dealt with in other laws, such as the Act respecting the protection of persons whose mental state presents a danger to themselves or to others.

“No person may be confined in a health or social services establishment with a view to his undergoing a psychiatric examination  or in consequence of a psychiatric examination report without his consent or without authorization by law or the court.” (Art. 26). Dangerousness is the standard used in the legislation for this type of protective supervision. A number of factors are analyzed in assessing the danger a person presents. The law therefore requires that a psychiatric expert assessment be used to evaluate and determine the level of dangerousness. The Civil Code, however, authorizes preventive confinement of a person when the danger is serious and immediate.

2011-04-04