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Contemporary Challenges in the Law of Consent Angela Campbell McGill Faculty of Law Une pensée d’avance – Think Ahead.

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Presentation on theme: "Contemporary Challenges in the Law of Consent Angela Campbell McGill Faculty of Law Une pensée d’avance – Think Ahead."— Presentation transcript:

1 Contemporary Challenges in the Law of Consent Angela Campbell McGill Faculty of Law Une pensée d’avance – Think Ahead

2 General Principles The law in relation to consent is predicated on a series of principles that align with liberal perceptions of personhood and human rights: Integrity Autonomy Inviolability Personal Security Privacy

3 General Principles – Quebec Civil Law Charter of Human Rights and Freedoms (art. 1 para. 1): 1. Every human being has a right to life, and to personal security, inviolability and freedom. Civil Code of Québec (arts. 3, 10, 11): 3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.

4 General Principles – Quebec Civil Law Civil Code of Québec (arts. 3, 10, 11) (con’t): 10. Every person is inviolable and is entitled to the integrity of his person. Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent. 11. No person may be made to undergo care of any nature, whether for examination, specimen taking, removal of tissue, treatment or any other act, except with his consent. If the person concerned is incapable of giving or refusing his consent to care, a person authorized by law or by mandate given in anticipation of his incapacity may do so in his place.

5 General Principles – Quebec Civil Law Act Respecting Health Services and Social Services (ss. 8-10, esp. s.9) 9. No person may be made to undergo care of any nature, whether for examination, specimen taking, treatment or any other intervention, except with his consent. Consent to care or the authorization to provide care shall be given or refused by the user or, as the case may be, his representative or the court, in the circumstances and manner provided for in articles 10 and following of the Civil Code.

6 General Principles – Common Law Canada Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 It should not be forgotten that every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done to one's own body. This includes the right to be free from medical treatment to which the individual does not consent. This concept of individual autonomy is fundamental to the common law and is the basis for the requirement that disclosure be made to a patient.

7 General Principles – Common Law Canada Four Requirements of Informed Consent:  Voluntariness  Capacity  Refer both to the treatment and its provider  Informed (Reibl v. Hughes, [1980] 2 S.C.R. 880) (Erin Nelson, “The Fundamentals of Consent” in Downie, Caulfield & Flood, Canadian Health Law and Policy, 2nd ed (2002)).

8 Consent Complications  Questionable or diminished capacity  Emergencies & other exceptions  Medical and biotechnological innovations altering what qualifies as a material risk worthy of disclosure  Assessing what counts as a viable procedure to be offered to a patient and who determines this  Cultural and social pluralism grounding objections to the provision or acceptance of care  Enhanced patient vigilance, awareness and advocacy  The role of expert evidence in determining risk, viability of procedures, likely patient outcomes

9 Case Study #1: Consent by Patient; Refusal by Health Care Provider/Institution Elements of the Conundrum: Patient is critically or terminally ill, usually in need of medical technology to breathe, be fed and/or be hydrated. Patient (or representative) seeks (and consents to) medical interventions that may prolong the patient’s life. Treating health care team/hospital, resists provision of therapy in question on the basis of “medical futility” – i.e., belief that the therapy will not improve the patient’s condition or health. In such scenarios, what role can/should law play? Is it equipped to address “power struggles” between families and physicians? See JL Bernat, “Medical futility: definition, determination, and disputes in critical care” (2005) 2(2) Neurocrit Care198.

10 Case Study #1: Consent by Patient; Refusal by Health Care Provider/Institution Maraachli v. Fraser, 2011 ONSC 124 Health Care Consent Act, S.O. 1996, c.2, Sched. A. 21. (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles: […] 2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests. [emphasis added]

11 Case Study #1: Consent by Patient; Refusal by Health Care Provider/Institution Emotive Judging? “I also admitted photographs of Joseph. They show a lovely little baby boy and I thank you for sharing them with me. However, they are but snapshots in time and really cannot assist me in coming to a conclusion on the law. […] I know that this is most heartbreaking. It is my hope that in time you will find peace. I'm so sorry.” Maraachli v. Fraser (paras. 9 and 17)

12 Case Study #1: Consent by Patient; Refusal by Health Care Provider/Institution Cf Sawatzky v Riverview Health Centre (1998), 167 D.L.R. (4th) 359 (Man QB) “This is one of the most difficult cases that I have had to deal with, as it may not only change lives, but it may have the effect of ending a life. I can assure you that the last week has been most difficult for me as I have wrestled with the competing issues that have been raised.” (at para. 3)

13 Case Study #1: Consent by Patient; Refusal by Health Care Provider/Institution Summary of Issues for Jurists’ Contemplation: Mediating tensions between families and health care providing teams: what tools do lawyers and judges have at their disposal to determine WHO is best placed to make decisions (NB: role of expert evidence). Are medicine and law making “quality of life” value judgments? Confronting the reality of health care resource allocation and costs Identity of the “consenter” Implications for cases on the flip-side of the end-of-life decision-making spectrum – i.e., consent REFUSED to therapies that promise to sustain and prolong life.

14 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors General Principles Quebec Civil Law Consent to care is given by the child’s parent/tutor BUT a child 14 or older can, in general, give consent to care required by his/her health. (art. 14 CCQ; see also arts. 17 and 18) Where required medical care is refused either by a parent for a child under 14 or by the child if 14 or older, judicial authorization is required to treat. (art. 16 CCQ)

15 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors Canadian Common Law Mature Minor doctrine: “I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.” Gillick v West Norfolk and Wisbech Area Health Authority and another, [1986] 1 AC 112 (Lord Scarman)

16 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors Canadian Common Law Codified consent provisions for minors – e.g., Child and Family Services Act, C.C.S.M. c. C80, ss. 25(8), 25(9): 25(8) Subject to subsection (9), upon completion of a hearing, the court may authorize a medical examination or any medical or dental treatment that the court considers to be in the best interests of the child. 25(9) The court shall not make an order under subsection (8) with respect to a child who is 16 years of age or older without the child’s consent unless the court is satisfied that the child is unable a)to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or b)to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or […] treatment.

17 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors Minors’ Medical Decisions – The Supreme Court of Canada Speaks A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 “The question is whether the statutory scheme strikes a constitutional balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision making in connection with his or her body and the law’s equally persistent attempts to protect vulnerable children from harm.” (Abella J.)

18 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors A.C. v. Manitoba (con’t) “Where a young person comes before the court under s. 25 […], it means that child protective services have concluded that medical treatment is necessary to protect his or her life or health, and either the child or the child’s parents have refused to consent. In this very limited class of cases, it is the ineffability inherent in the concept of ‘maturity’ that justifies the state’s retaining an overarching power to determine whether allowing the child to exercise his or her autonomy in a given situation actually accords with his or her best interests. The degree of scrutiny will inevitably be most intense in cases where a treatment decision is likely to seriously endanger a child’s life or health.” (Abella J., emphasis added)

19 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors A.C. v. Manitoba (con’t) “[W]hile courts have readily embraced the concept of granting adolescents a degree of autonomy that is reflective of their evolving maturity, they have generally not seen the ‘mature minor’ doctrine as dictating guaranteed outcomes, particularly where the consequences for the young person are catastrophic.” (Abella J.) The majority thus interprets the mature minor doctrine as consistent with the applicable statute – that is, subject to a “robust conception” of the “best interests of the child” standard.

20 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors A.C. v. Manitoba (con’t) “The CFSA provides a complete statutory scheme with respect to medical decisions for children and adolescents deemed to be in need of state protection. This comprehensive scheme displaces the existing common law regarding medical decision making by ‘mature minors’. In my view, the constitutional analysis must therefore center on the statute itself.” (McLachlin CJ, concurring)

21 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors A.C. v. Manitoba (con’t) “This is a disturbing case. The Canadian Charter of Rights and Freedoms enshrines in our highest law the liberty and independence of a mature individual to make life’s most important choices free of government intervention, provided there is no countervailing social interest of overriding importance. This proposition is tested on this appeal by A.C., a Jehovah’s Witness, who is a mature minor.” (Binnie J., dissenting, emphasis added)

22 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors A.C. v. Manitoba (con’t) “In short, s. 25 CFSA is unconstitutional because it prevents a person under 16 from establishing that she or he understands the medical condition and the consequences of refusing treatment, and should therefore have the right to refuse treatment whether or not the applications judge considers such refusal to be in the young person’s best interests, just as is now the case with a “mature minor” who is 16 or 17 years old.” (Binnie J.)

23 Case Study #2: Refusal by Patient; Willingness to Treat by Health Care Provider/Institution – The Case of Minors Summary of Issues for Jurists’ Contemplation:  Preference for a bright-line rule based on a fixed aged or for a discretionary, flexible approach?  Wrangling with the concepts of maturity and capacity – the need for interdisciplinary guidance  Illumination of factors and interests that may justify interventions to which no consent is given.


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