Administering care without consent in F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria)

Posted By Jennyfer Pelletier

On January 4th 2015, the appellant was hospitalized due to convulsions caused by alcohol withdrawal. The appellant, 49, is a married father who has been struggling with an alcohol consumption problem for many years. During his hospitalization, the Court of Quebec authorized a motion for confinement in an institution to last until May 21st 2015.

At the end of January, the appellant’s situation improved and, while he remained in the hospital, he left the emergency unit. On February 10th 2015, Dr. Tourian, the appellant’s psychiatrist, stated in a report that the patient required housing in a care unit that would be equipped to manage his condition and potential deterioration. The appellant, however, manifested a desire to go home. Dr. Tourian believed the appellant was inapt and incapable of providing consent. Consequently, a month later, he instituted a motion at the Superior Court seeking an authorization for care that would authorize the hospital and the appellant’s psychiatrists, or any delegated physician or nurse, to administer medications and place the appellant in a care unit.

Superior Court

On March 18th 2015, the Honourable William Fraiberg found that the appellant was incapable of providing his consent pursuant to article 16 of the Civil Code of Quebec (CCQ). He allowed the respondents, the appellant’s psychiatrists as well as other doctors and nurses, to put in place a treatment program that would last 36 months.

Court of Appeal

The appellant appealed on three grounds: 1) the trial judge erred in refusing to postpone the hearing, 2) the trial judge appeared partial and 3) the trial judge erred in granting the authorization as the requirements set out in articles 16 and 12 of the CCQ were not satisfied. On July 6th 2015, the appellant was successful on all three grounds and the Court of Appeal ordered a new trial.

This summary will focus on the third ground of appeal as it relates to substantive health law. This ground of appeal illustrated the court’s interpretive framework when dealing with a request for authorization of care without consent. The Court of Appeal held that a motion for authorization to administer care is examined while keeping in mind the following:

  • Every person is inviolable and is entitled to the integrity of his person (article 10 CCQ)
  • No person may be made to undergo care except with his consent (article 11 CCQ)
  • No one can force a person capable of giving consent to receive care, even if that care is in their best interest and its refusal may lead to their death
  • Where a person is capable of providing consent, no one can intervene in their choice of treatment
  • The use of article 16 requires a judge to determine whether he or she is in the presence of a person who is incapable of giving consent and is refusing treatment

The Court of Appeal then elaborated on a two-step test to determine if the requirements of articles 16 and 12 of the CCQ are satisfied. The first step requires determining whether the patient is competent pursuant to article 16 of the CCQ. There is no presumption of inaptitude to consent simply because someone is subject to psychological or psychiatric treatments. To conclude that a patient is incompetent, a judge must find that the patient is (1) inapt to consent and (2) is categorically refusing treatment.

(1) To determine whether a person is inapt to consent, the following questions should be asked:

  • Does the person understand the nature of their condition?
  • Do they understand the goal of treatment?
  • Do they understand the risks of treatment, as well as the risks of not following the treatment?
  • Is their capacity to understand affected by their condition?

(2) To determine that someone is categorically refusing treatment:

    • There must be proof that the person is refusing the treatment for which the authorization is sought
    • If a treatment has not been offered yet, there cannot be a categorical refusal

If one of these two conditions is not met, the judge must reject the request.

If both conditions in the first step are met, the judge proceeds to the second step. Pursuant to article 12 of the CCQ, the judge must ask the following questions:

  • Is the treatment required, and if so, is it sufficiently described?
  • Do the benefits outweigh the negative consequences?
  • How long should the authorization be granted for?

Whether treatment is required must be determined in the sole interest of the patient while taking into account, as far as possible, any wishes they may have expressed.

In the present case, the Court of Appeal held that, even if the trial judge concluded that the appellant was inapt, he could not find that the appellant is categorically refusing treatment as it was revealed, through Dr. Tourian’s testimony, that the appellant has been taking the prescribed medication. Dr. Tourian testified that anti-psychotics were not required for the moment, but could be in the future. However, the court referred to recent jurisprudence stating that it is not in the tribunal’s power to act in a preventive manner. Hence, the analysis attempts to protect patients’ autonomy by providing a rigid framework and clearly defined parameters.

Bentley v Maplewood: the Right to (be Left to) Die?

Posted By Colleen Morawetz

In February 2015, the Supreme Court of Canada struck down a blanket ban on physician-assisted suicide in Carter v Canada. In light of this landmark case and the reality of our country’s rapidly aging population, questions of end-of-life care and patient autonomy have been pushed to the forefront of Canada’s political and legal scene. Less than a month after the Carter decision, the British Columbia Court of Appeal released Bentley v Maplewood Seniors Care Society, a judgment that applied the common law tort of battery to the so-called “right to die”. The court in Bentley grappled with such thorny topics as how to effectively honour an individual’s wishes once she loses most cognitive capabilities, what legal steps she must take to avoid potential ambiguity in her intentions, and if caregivers are legally required to let their patients die. Though this decision did not concern physician-assisted suicide, its subject matter is essentially an operationalization of the same broad principles – and all the ethical challenges they import.

The Trial Court Decision

In 2013, Mrs. Margaret Bentley’s family filed a petition to the Supreme Court of British Columbia, seeking a declaration that would prevent the staff at Maplewood Seniors Care Society from giving her food and water. Mrs. Bentley is an 83-year-old woman suffering from the seventh stage of Alzheimer’s disease. She has not spoken since 2010 and no longer recognizes family members.

Through her work as a nurse, Mrs. Bentley had seen how Alzheimer’s patients descend into “vegetative” states. As a result, in 1991, she wrote and signed a “Statement of Wishes” requesting that if she were ever in a state where there was “no reasonable expectation of [her] recovery from extreme physical or mental disability”, she be “allowed to die and not kept alive by artificial means or ‘heroic measures’”. The Statement, signed in the presence of two witnesses, appointed her husband to serve as her “proxy for the purpose of making medical decisions” should she lose the mental faculties required for legal consent. At the Maplewood Seniors Care Society, where Mrs. Bentley has lived since 2009, her disease has progressed to the point where she cannot feed herself without manual assistance. Her family argued that the Maplewood caregivers’ manual feeding contradicts Mrs. Bentley’s statement.

The BC Supreme Court upheld the common law presumption, encoded in such legislation as the BC Representation Agreement Act, that every adult is capable of making decisions about personal and health care. Only when an adult is proven to be incapable of consent will decision-making power transfer to another person. Based on expert testimony, the trial judge found that Mrs. Bentley still had the capacity to consent to being fed, and that opening her mouth and accepting food from a caregiver was a behavioural manifestation of consent. Furthermore, even if she had been unable to consent, the judge’s finding that feeding constitutes “personal care” as opposed to “health care” means that advance directives have no binding force. Personal care directives fall outside the narrow circumstances in the Health Care (Consent) and Care Facility (Admissions) Act that permit refusal of health care. Third, the judge found the Statement of Wishes to be too ambiguous to force the caregivers at Maplewood to stop feeding Mrs. Bentley, especially in light of a later statement that used slightly different wording. Finally, the judge ruled that even if there could be a substitute decision-maker, he wouldn’t have the legal authority to make a decision care providers believe would be medically inappropriate.

The Appeal

Of the multiple reasons for which the trial judge dismissed the original petition, Mrs. Bentley’s family appealed on the grounds that he did not properly consider the tort of battery. They argued that the Maplewood caregivers’ “prodding” of Mrs. Bentley’s mouth with a spoon at mealtimes constituted non-trivial contact. The only defense to the tort of battery is, of course, consent. As with consent defined in the legislative context, consent in the tort of battery is presumed for all adults.

In looking specifically at this tort, the Court of Appeal again found that Mrs. Bentley had the capacity to consent, and that by opening her mouth, she was communicating approval to be fed. Furthermore, it ruled that consent in the context of battery could not be delegated or communicated in advance: it arises in the present. The Court of Appeal affirmed the lower court’s dismissal of the petition, finding consent and thus no actionable tort of battery.


What might the Bentley appeal decision, employing the same reasoning as the trial court, mean for “right to die” cases? In maintaining a restrictive definition of advance consent in decisions on medical care (which, in itself, is narrowly defined and contrasted with personal care), the BC Court of Appeal invoked subtle policy arguments. The court noted that “[i]t is a grave thing to ask or instruct caregivers to stand by and watch a patient starve to death.” It cloaked this concern in the existing BC legislative framework: in particular, within the Adult Guardianship Act that would characterize Maplewood’s staff as neglectful should they withdraw personal care assistance. This concern is undoubtedly legitimate: if the line between “personal care” and “medical care” collapses, and patients can give valid consent to be left to starve, will personal caregivers be responsible for overseeing this slow and painful process?

Furthermore, this question of advance consent takes the discussion far beyond the parameters of Carter, where the patient in question had full mental capacity. The Court of Appeal noted that “consent in the here and now” is the proper mechanism to give full expression to patient autonomy. The question thus arises about how the issue of a “right to die”, or – more narrowly – physician assisted suicide, will apply to individuals suffering from diseases that affect cognitive functioning. How will the autonomy of these patients be meaningfully protected? The Court of Appeal underlined that Bentley is not a constitutional case, and it limited its discussion to the narrow tort of battery. However, the legal questions surrounding advance consent and how provinces will adapt their current “medical decision-making” legislative webs to the post-Carter era remain open.

The Health and Safety of Sex Workers Motivates the SCC to Strike Down Sex Work Related Criminal Code Provisions in Canada (Attorney General) v Bedford

Posted By Lauren Hanon

Exchanging sex for money in Canada is not illegal. This is the very first statement made by Chief Justice McLachlin in Canada (Attorney General) v Bedford. What makes sex work effectively criminalized are the provisions in the Criminal Code, which render the activities surrounding sex work illegal. These provisions were constitutionally challenged in Bedford.

In 2013, the SCC struck down three sections in the Criminal Code as being unconstitutional. These provisions were said to have violated the rights of sex workers under section 7 of the Canadian Charter of Rights and Freedoms, which protects “the right to life, liberty and security of the person”. The sections of the Criminal Code that were struck down were s. 210 (keeping, or begin found in a bawdy house), s. 212(1)(j) (living on the avails of prostitution), and s. 213(1)(c) (communicating in public for the purpose of prostitution). The Chief Justice asserted that while the government has the right to regulate prostitution, a completely legal activity, the aforementioned provisions create extremely dangerous conditions for sex workers by limiting their ability to reduce risk and take precautionary measures to better protect themselves (para 60).

Section 210 of the Criminal Code

Section 210 makes it illegal to live in, enter into, or occupy a bawdy-house. As a result, lawful prostitution is confined to two categories: street prostitution and “out-calls” (where the sex worker and the client meet at a designated location). “In-calls” (where the client comes to the sex worker’s place of residence) are prohibited by section 210, seeing as the residence would be considered a place resorted to for the purpose of prostitution.

The court found that, on a balance of probabilities, in-calls is the safest form of prostitution. Therefore, by prohibiting in-calls under section 210 of the Criminal Code, sex workers have no ability to implement their own security measures, like receptionists or security guards, and it “interferes with provisions of health checks and preventative health measures” (para 64). This section forces sex workers into more dangerous situations, thus violating their right to security of the person under section 7 of the Charter.

Section 212(1)(j) of the Criminal Code

Section 212(1)(j) criminalizes living on the avails of prostitution of another, in whole or in part. This provision targets exploitative and parasitic relationships, like where a sex worker works for a brothel-keeper. In effect, however, it prevents sex workers from hiring people like bodyguards, receptionists, drivers, and other positions that would greatly reduce risks of client violence. This provision again increases the danger to sex workers and violates their right to security of the person.

Section 213(1)(c) of the Criminal Code

Finally, section 213(1)(c) prohibits any form or attempt of communication for the purposes of exchanging money for sex in a public space, or a place open to public view. Face to face communication is an essential tool for reducing the risks of street prostitution. Prohibiting sex workers from using this tool prevents them from screening prospective clients and engaging in any discussion about the terms of the work, such as condom use. This provision also has the adverse effect of displacing sex workers from known locations where they can implement safety precautions. Being forced to communicate in non-public spaces and spaces that are not open to public view increases the risk of dangers, such as assault. By greatly limiting the safety measures available to sex workers, this provision also violates their right to security of the person.


The SCC declared these provision invalid, although their invalidity was suspended for one year in order to give the government time to respond with new legislation. This new legislation took the form of Bill C-36, which received Royal Assent on November 6th, 2014.

Bill C-36 – or An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts – has been in effect for almost a year now. The changes made to the Criminal Code through Bill C-36 arguably endanger sex workers more than the previous provisions that were struck down. Pivot Legal Society has claimed that they are prepared to go to court again on the grounds that the new legislation is also unconstitutional if our new Liberal government does not repeal it as soon as possible. It seems as though the Bedford decision is only the beginning of legal changes to come for the health and safety of sex workers in Canada. It will be interesting to see what decisions our Liberal government will make in the near future!

The SCC Revisits the Right to Die in Carter v Canada (Attorney General)

Posted By Sabrina Mach

Twenty-one years after upholding a criminal prohibition on physician-assisted suicide (Rodriguez 1993), the Supreme Court of Canada must once again consider the constitutionality of s. 241(b) of the Criminal Code in Carter v Canada (Attorney General). Under s. 241(b), anyone that “aids or abets a person to commit suicide” is guilty of an indictable offence and liable to imprisonment for up to fourteen years. Lee Carter and Gloria Taylor joined with others in bringing this claim challenging the constitutionality of s. 241(b) of the Criminal Code, as well as ss. 14, 21, 22, 222, and 241(a), which collectively, with s. 241(b), prohibit physician-assisted suicide in Canada. Ms. Carter’s mother and Ms. Taylor both suffered from intractable and degenerative diseases.

The Supreme Court heard the Carter case on October 15th, 2014. An overview of the main points in the lower court decisions indicates that the Supreme Court’s decision could radically change the state of assisted suicide in Canada.

Trial Court Decision

The main hurdle for Justice Smith was to assess whether or not Rodriguez was binding precedent. In Rodriguez, the Supreme Court held that s. 241(b) was constitutional because it complied with s. 7 and s. 15 of the Charter. If Rodriguez were binding, then the civil claim would fail. However, Justice Smith found that the emergence of different social facts and legal principles since the 1993 decision allowed her to re-evaluate the constitutionality of s. 241(b). She noted that the right to “life” in s. 7 was not considered in Rodriguez. Neither were the principles of fundamental justice of overbreadth and gross disproportionality. Additionally, Justice Smith found that a violation of s.15, the equality provision, was never properly found in Rodriguez; rather, it was simply assumed to have occurred and was then justified under s. 1.

With respect to s. 7 of the Charter, Justice Smith held that the right to life was engaged because the prohibition had the effect of causing some people to end their lives sooner than they would have if physician-assisted suicide were available. With respect to s. 15, Justice Smith found that the impugned provisions created a distinction on the basis of physical disability. It did so by denying physically disabled individuals access to physician-assisted suicide, which was necessary for them to commit suicide, while able-bodied individuals had no legal restrictions to committing suicide. These violations could not be saved by s. 1. The trial judge declared impugned provisions to be of no force or effect due to their violations of ss. 7 and 15 of the Charter. The declarations of constitutional invalidity were suspended for one year to allow Parliament sufficient time to draft and consider new legislation.

With regards to the risks of physician-assisted suicide, Justice Smith suggested that sufficient safeguards could be put into place, such as employing properly qualified and experienced physicians to assess the competence of patients seeking physician-assisted death, identifying inappropriate influences on the patient’s decision, as well as assessing informed consent.

Court of Appeal

The majority found that the trial judge was bound by stare decisis to apply Rodriguez. Consequently, for the most part of the judgment, the court reaffirmed the findings established in Rodriguez.

With respect to s. 7, the court held that “life” was already considered in Rodriguez in relation to liberty and security of the person. The ability to make personal decisions regarding one’s body fell under “security of the person”, which made it unnecessary for Justice Smith to consider the right to “life” under s. 7. As for s. 15, they accepted Justice Smith’s finding of a violation, but concluded that it was justified under s. 1 of the Charter. The Court applied the same s. 1 analysis as in Rodriguez, emphasizing that s. 241(b) clearly had a pressing and substantial legislative objective grounded in the need to protect human life, and that it was rationally connected to its purpose. Thus, the provision is constitutionally valid.

Although the Court of Appeal upheld the prohibition, they did suggest that the legislature should consider adding a constitutional exemption where warranted. This exemption might be in favour of “those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, and protected by a court process” (para 333).

Supreme Court of Canada hearing

The Supreme Court has yet to release its own decision regarding the constitutionality of s. 241(b) and the other impugned provisions. Nevertheless, following the hearing on October 15th, many media sources have already commented on the direction the court will take:

“Government’s stance on assisted-suicide runs into skepticism from Supreme Court” (Sean Fine, Globe and Mail)

“A tough day at the Supreme Court for supporters of a ban on assisted suicide” (Emmett Macfarlane, Maclean’s)

The Supreme Court has a big decision ahead of it – to follow Rodriguez or distinguish from it. Earlier this year, Quebec became the first province to legalize physician-assisted suicide by passing Bill 52, An Act respecting end-of-life care. With the changing political and social climate regarding assisted suicide in Canada, the Supreme Court has a lot to consider. The Harper government may have to brace itself for another tough loss at the Supreme Court.

What R v Hutchinson means for consent: an examination of the majority and minority opinions

Posted By Katarina Daniels

On Friday, March 7th, 2014, the Supreme Court of Canada unanimously dismissed Craig Hutchinson’s appeal, holding that Hutchinson did in fact sexually assault his partner when he decided to poke holes in his condoms in order to get his partner pregnant. Immediately, the media responded. Headlines included:

“Supreme Court upholds sexual assault conviction in condom sabotage case” (Mike Blanchfield, The Canadian Press, in the Montreal Gazette)

“Condom Piercer Faces Jail For Sexual Assault” (Sky News)

“Condom case reaffirms the ability to make meaningful choices” (Angela Campbell, The Globe and Mail)

Very few news outlets, however, noted the serious distinction between the majority and minority opinions in how they understand consent. How far does consent reach in the context of sexual relations? Does “voluntary agreement… to… the sexual activity in question” only include the specific physical act or does it extend to how the intercourse takes place? Specific to this case: is sexual intercourse with a condom and without one the same “sexual activity”?

The majority opinion: the sexual activity in question was sexual intercourse

The majority of the Court, led by the Chief Justice and Cromwell J, limited s.273.1(1) of the Criminal Code’s definition of “the sexual activity in question” in consent to the physical act, the sexual nature of the activity, and the identity of the partner. According to the majority, the physical act does not include “conditions or qualities of the physical act” (para 55) but only the “specific physical act,” which includes: “kissing, petting, oral sex, intercourse, or the use of sex toys,” for example (para 54, emphasis in the original).

For its part, this limited definition suggests that, for the purposes of defining the “physical act”, sex without a condom is no different than sex with a condom. The majority makes clear that consent to sexual intercourse, at this first stage of the consent analysis, is consent to any action falling “somewhere within the generic category of what the complainant agreed to” (as described by Abella and Moldaver JJ, para 87). By using this narrow definition of “physical act”, the majority is able to find consent at the first stage of the analysis. A finding of consent, even initially, where the plaintiff insists that there was none, in fact contradicts the headline of Professor Campbell’s article in The Globe and Mail, which reads: “Condom case reaffirms the ability to make meaningful choices”.

Apparently unperturbed by the irony of telling a woman that she has consented to something she argues she has not, the majority moves on to the second stage of the consent analysis – reasons to vitiate consent. Under s.265(3) of the Criminal Code, consent may be vitiated through a number of conditions, including fraud (s.265(3)(c)). Under the test set forth by the Supreme Court of Canada in Cuerrier, a finding of fraud requires: 1) a dishonest act, and 2) that the dishonest act had “the effect of exposing the person consenting to a significant risk of serious bodily harm” (Cuerrier,para 128).

The problem here is that using this line of reasoning creates of a “problematic analogy” between pregnancy and bodily harm. The majority awkwardly holds that harm “includes at least the sorts of profound changes in a woman’s body… resulting from pregnancy” (para 70). The majority must make this uncomfortable statement in order to find fraud, which in turn allows the majority to hold that consent has been vitiated per s.265(3)(c) of the Criminal Code. As a result, Mr. Hutchinson was found guilty of sexual assault under s.265(1) of the Criminal Code.

The minority opinion: the sexual activity in question was sexual intercourse with a condom

In contrast to the majority opinion, the minority opinion, led by Abella and Moldaver JJ, defines the sexual activity in question as sexual intercourse with a condom, as opposed to simply sexual intercourse. Because of this framing, they could find an absence of consent under s.273(1) without relying on fraud and the Cuerrier test, thus coming to the same result as the majority.

Abella and Moldaver JJ rely heavily on R v Ewanchuk, a seminal case outlining the framework for sexual assault findings. In particular, they rely on the following passage: “Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy” (Ewanchuk, para 28).

The minority pounces on the latter element of “how” to justify their definition of “sexual activity” under s.273.1(1). For the minority, this inclusion of the term “how” in Ewanchuk implies that “sexual activity” at s.273.1(1) must be broader than the “specific physical act” and must include the way in which that activity is carried out – in this case, with or without a condom. To hold otherwise would be “[to extinguish] the right of a person to decide whether to give or withhold consent to the sexual activity” (para 86), undermining Ewanchuk’s most basic principles.

Following Ewanchuk, Abella and Moldaver JJ propose a two-part test to analyse consent under the actus reus of sexual assault:

“Under s.273.1(1), has the complainant consented to the identity of her sexual partner, the sexual nature of the touching, and the manner in which the sexual touching was carried out?

If so, are there any circumstances that vitiate the complainant’s consent under s.265(3)?” (para 92)

While the majority suggests that the “how” may be too confusing for judges to apply, resulting in over-criminalization, the minority notes that their approach is the only one that truly gives meaning to the term “consent”. According to the minority, the majority approach would deny individuals who do not risk pregnancy the legal right to demand the use of a condom during sexual intercourse, so long as they agreed to the general activity of sexual intercourse.[1] This is because the majority proposes no other new “harm” under the fraud requirement aside from the “harm” of pregnancy. Per Cuerrier, without serious bodily harm, there can be no fraud.

Concluding thoughts

“All individuals must have an equal right to determine how they are touched, regardless of gender, sexual orientation, reproductive capacity, or the type of sexual activity they choose to engage in” (Abella and Moldaver JJ, para 98).

The majority decision – that is, the ruling decision in this case, the current state of the law – seems to hold otherwise. In relying on vitiation of consent, the majority limits an individual’s right to make meaningful choices for him or herself. This sets a dangerous precedent, and also creates confusion for lower courts in identifying harm under the fraud principle. Media attention must be brought to the actual reasoning of the case, instead of simply the result, as it is the reasoning that will be applied to future cases and continue to shape the laws of consent in Canada.

Note: This blog post does not necessarily reflect the attitudes or opinions of the McGill Journal of Law and Health.

[1] Unless there are concerns about infectious diseases or other legally recognized concerns.