Emmanuelle Bernheim, Guillaume Chalifour et Richard-Alexandre Laniel
Abstract
Authorization of treatment is an exception to the general principles of the law of persons in the civil law, according to which the free and enlightened consent of patients is required before any therapeutic intervention. To obtain judicial authorization to treat a person against his will, his incapacity to give consent to the care required by his state of health must be demonstrated. Although authorization of treatment has been provided for in Québec’s civil code since 1989, it has only recently become the object of research. These first studies have highlighted significant difficulties with implemen tation that seem important to document systematically. This article presents the results of a statistical analysis of the judicial decisions on authorization of treatment from 1989 to 2012 that are available in databases. They reveal that defendants are often not present or represented in court, and that procedural mechanisms which aim to ensure that their voices are heard are rarely applied. This invisibility is transposed into judicial decisions, which are most frequently short and generic, and it results in an interpretation and application of substantive law that is increasingly broad and liberal, to the detriment of defendants’ rights.
McGill Journal of Law and Health 