Adults usually have the right to refuse health care. Care includes medical procedures, food, birth control, and placement in an institution like a long-term care facility.
But they can be forced to receive care in these situations:
- in emergencies (There are some exceptions. Read our article on emergency medical decisions.)
- for personal hygiene
- for infectious diseases (The government requires diseases that travel easily, like tuberculosis, to be treated right away.)
- if the court has ordered the person to receive care (This situation is explained below.)
In exceptional situations, health care institutions can also use force, isolation, medication or other types of restraints to prevent harm to a patient or someone else. The use of these methods must be minimal and must be noted in the patient’s medical record.
When adults who can’t make their own medical decisions refuse care, the hospital can ask the court to order the care they need for their health. This is called a treatment order. For example, the court can order a patient to take medication for a mental health condition.
The judge can only order treatment if the patient is clearly refusing treatment when the hospital makes its request. Treatment can’t be ordered in advance to prevent a patient from refusing at some point in the future.
Before Going to Court
A doctor must evaluate the patient and write a report explaining why treatment is needed.
At least five days before the judge will hear the case, the hospital must send the patient a copy of its request and the doctor’s report. It must also send a document explaining the patient’s rights, including the right to be represented by a lawyer in court. A bailiff (an official messenger) must deliver these documents directly to the patient.
But if receiving the report could worsen the patient’s physical or psychological health, the court can allow the report to be sent to someone else instead. For example, the report could be sent to the person in charge of the place where the patient is living.
The hospital must also notify these people that the judge will hear the case:
- the patient’s parent or someone acting as the parent
- the patient’s legal representative (mandatary, tutor, or curator), if there is one
- if there is no legal representative, the patient’s married or civil union spouse, or common law partner
- if there is no spouse or partner, the patient’s close relative or someone concerned for the patient
- if this isn’t possible, the Public Curator.
The patient can be represented in court by a lawyer.
To protect the patient’s dignity and privacy, the judge can decide not to allow members of the public in the courtroom.
The hospital must prove these things to the judge:
- the patient can’t make his own medical decisions (doesn’t have the capacity to consent to treatment)
- the patient is clearly refusing the treatment,
- the patient needs the treatment
- the benefits of the treatment are greater than its negative effects
To prove the patient can’t make medical decisions, the hospital must show that the patient can’t understand these things:
- the nature of his illness
- the nature and purpose of the treatment
- the advantages and risks of the treatment
- the risks of not having the treatment
The hospital must also show that the patient’s illness doesn’t affect his capacity to consent.
The hospital can ask witnesses to speak in court. For example, the hospital can ask the doctor who wrote the report or the patient’s relatives to explain why the judge should allow the treatment. Patients or their lawyers can question the hospital’s witnesses.
Before making a decision, the judge must hear the patient’s version of the situation. If the patient is under 18 or has been found incapable by the court, another person can help and reassure him while he speaks to the judge. The judge and the hospital’s lawyer can question the patient.
If it’s impossible for the patient to speak in court, if speaking in court could harm the health or safety of the patient or someone else, or if the situation is urgent, the judge can make a decision without hearing the patient.
Patients can invite witnesses to speak in court and ask them questions. For example, they can invite a relative, a friend or a doctor to explain why the judge shouldn’t allow the treatment. The hospital’s lawyer and the judge can question these people.
After hearing all the witnesses and arguments, the judge decides whether to allow or refuse the hospital’s request for treatment. If the judge allows the request, she should specify what kind of treatment the patient should have and how often he should have it.
The law doesn’t set a maximum amount of time that a person can be forced to have treatment. The judge decides how long to order the treatment for. Treatment orders usually last between one and five years.
If the patient disagrees with the judge’s decision, he has five days to ask the Court of Appeal to review the decision.
The patient must obey the court’s decision. If the patient refuses treatment ordered by the court, the hospital can treat the patient by force. If the patient doesn’t show up for treatment, the court can allow the police to bring the patient to the hospital for the treatment.
If the patient’s situation changes during the period of the treatment order, the patient or someone else can ask the court to review the judge’s order.