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Consenting to health care for the incapable person

According to the Civil Code of Québec, every person is presumed capable of consenting to the care offered to them, whether or not they are under tutorship or their protection mandate has been homologated.

The professional providing the care must verify the person’s capacity to consent, each time care is offered to them.

A patient is considered incapable of consent if they are unable to understand:

  • the nature of their illness;
  • the nature and purpose of the care offered;
  • the benefits and risks associated with this care;
  • the risks involved if this care is not provided;
  • that their health condition impairs their capacity to consent.

Consenting on behalf of an incapable person

When the person is considered incapable of consenting to care, substitute consent may be given, depending on the person’s wishes. Consult the section Who can give consent for the incapable person for more information depending on the situation of the person concerned.

The person who will give substitute consent will need to ask the health professional questions before consenting to the care offered:

  • In what way is the treatment needed for the person’s mental or physical health?
  • What are the benefits?
  • How do the risks compare to the expected benefits?

Respecting the person’s wishes

While the person was capable of consenting to care, they may have written up an advance medical directive expressing their wishes in the event of their inability to give consent. The advance medical directive is governed by the Act respecting end-of-life care This hyperlink will open in a new window.. Once the person is declared incapable, the wishes expressed in their advance medical directive must be respected by the person authorized to give substitute consent (even if the latter disagrees with them) if the care in question is deemed necessary by the physician.

General notice

Acceptable care

It is care aimed at improving the patient’s health. The expected improvement must outweigh the potential side effects of the treatment.

In the case of organ donation, autopsy, or the patient’s participation in a research study, the mandatary or the tutor must consult a lawyer, a notary, or the Curateur public.

Who can give consent for the incapable person

SituationsWho can give consent

If the person is not under representation
(not under tutorship or a homologated protection mandate) 

In order of priority:

  • Spouse (marriage, civil union, or common-law relationship);
  • Close relative;
  • Person with a specific interest in the person concerned;
  • Curateur public (as a last resort, when the person is totally isolated)
If the person has a homologated protection mandate
  • Mandatary;
  • Mandatary to the person (in the case of multiple representatives).
If the person is under private tutorship

In order of priority:

  • Guardian (if named in the judgment);
  • Tutor;
  • Tutor to the person (in the case of multiple representatives).
If the person is represented by the Curateur public

In order of priority:

  • Guardian (if named in the judgment);
  • The Curateur public’s Département médical et du consentement aux soins.

Situations that require the court's authorization

Even with substitute consent, a person who is declared incapable of providing consent can categorically refuse the care offered. In this case, the court must issue an order authorizing the care, despite the person’s refusal. The court will also need to get involved if the person authorized to give substitute consent is prevented from doing so or is unjustifiably refused.

Responsibility of the healthcare institution

When the court’s authorization is required, an application requesting authorization for care must be submitted by the health and social services institution providing the care.

The health and social services institution must:

  • inform the person authorized to give substitute consent whenever the person refuses care despite being capable of consenting. If the institution cannot reach said person, it must inform the Curateur public;
  • apply to the court for authorization to treat the person deemed incapable of providing consent and who is refusing care outright, despite the agreement of the person authorized to give substitute consent.
General notice

Care without consent

In an emergency or if the patient requires hygiene care, if the person authorized to give substitute consent cannot be reached, the health professional may proceed without authorization.

Filing an application for consent to care with the Curateur public

TheDépartement médical et du consentement aux soins always processes applications for consent to care for persons deemed incapable of providing consent when they are represented by the Curateur public or isolated and are not outright refusing the proposed care.

In an emergency

The Curateur public has an emergency telephone service that can be reached outside of business hours, 365 days a year, for matters requiring urgent action on its part.

When the person’s life is in danger or their safety is threatened and consent cannot be obtained in a timely manner, the Civil Code of Québec stipulates that consent is not required. However, the Curateur public would like to be notified the following day during business hours.

Département médical et du consentement aux soins

  • Telephone: 514-873-5228

    Telephone (toll-free): 1-800-363-9020

    Fax: 514-873-0146

  • Mondays, Tuesdays, Thursdays and Fridays: 8:30 a.m. to 12 p.m. and from 13 p.m. to 4:30 p.m
    Wednesdays: from 10 a.m. to 12 p.m. and from 13 p.m. to 4:30 p.m.

Information to send to the Curateur public

In order for the Curateur public to give voluntary and informed consent, it requires the following information:

  • name of the professional who deemed the person incapable of giving consent;
  • opinion of the person, where applicable;
  • nature of the proposed care;
  • person’s clinical condition;
  • benefits and drawbacks of the care;
  • therapeutic choices;
  • functional autonomy;
  • opinion of someone close to them, where applicable.

Forms to send to the Département médical et du consentement aux soins

Request for consent to control measures (PDF 635 Kb)

Request for consent to a level of care (PDF 638 Kb)

Request for consent to care (PDF 634 Kb)

Demande d’accès au dossier de l’usager (in French) (PDF 695 Kb)

These forms can be faxed.

Filing an application for consent to accommodation

Applications for consent to accommodation must be sent to the regional directorates.

Form to send to a territorial directorate

To fax this form, contact the appointed curator responsible for the represented person’s file.

Last update: October 31, 2022

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