Skip to Main Content

Appealing or refusing a treatment decision

There are several factors in obtaining consent for medical treatments in Canada. Age, mental capacity, whether the patient properly understand the treatment required and treatment options, etc.

The question is whether a person can refuse a treatment recommended by a physician in Canada. For the most part, people can refuse, taking the above factors in consideration, with the exception of one situation: if it’s an emergency situation.

Healthcare is regulated on a provincial/territorial level but for the most part, the requirements are quite similar.

Consent for adults

The Supreme Court of Canada ruled in the case Starson v. Swayze, that if a person if over the age of majority, “has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest.”

The courts have reinforced the right of patients to refuse treatment, even if the treatment is needed to preserve that person’s health or life.

Consent for minors

Dealing with the issue of minors and consent to medical treatment is a little tricky as there is no clear-cut answer as to age requirement.

In many provinces, the rule of thumb is that in areas where there is no capacity and consent legislation, common law rules. That means case law usually decides what can be considered the appropriate age of consent for a minor.

Accordingly, the Supreme Court of Canada has established the “mature minor” doctrine. This means that a child who is able to understand the nature of the proposed treatment and has the maturity, intelligence and capacity to appreciate possible consequences of the treatment is considered capable of providing consent.

Provinces where this applies include Ontario, Prince Edward Island, the Yukon, British Columbia, etc. In some provinces like Manitoba and New Brunswick there is an age requirement of 16 but if a minor under 16 can show he or she is capable of understanding the nature and consequences of the treatment, they may be allowed to make an informed decision.

In Quebec, the age requirement is 14 years of age. However, that is not for major treatments. If the treatment is serious and could have permanent affects, then parental consent is required, even if the minor is 14 or over.

If the minor is seen to have enough capacity to understand the nature of the medical treatment and the consequences, he or she may be able to refuse treatment. However, requirements may differ from province to province, so it may be a good idea to consult a healthcare lawyer.

Mental capacity

Even if a patient lacks capacity to make certain decisions, he or she may still have enough capacity to give consent to medical treatment.

As in the case with minors, if the person is able to understand and appreciate the nature of the proposed treatments and the consequences, then even in cases where a patient is in a psychiatric facility, he or she may still be able to refuse treatment.

If the person is seen to be unfit to appreciate the nature of the treatments, then the law will look to a substitute decision-maker to make the decision for the person.

Informed consent

The patient must have been given satisfactory information about the nature about the suggested treatment and it’s possible outcomes and consequences, which includes side effects and risks involved. The physician should also disclose whether there are alternative treatments available.

If there are issues in regards to minor and mentally incapacitated people and medical treatments, a lawyer should be consulted.

Read more:

Consent: A Guide for Canadian Physicians

Children and Consent to Medical Care British Columbia