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Who decides what treatment is best for us

September, 2009

The Supreme Court of Canada rerecently decided that adolescents should have a say regarding serious medical decisions that affect them, as long as they have the maturity to do so. The issue was discussed in the case of a 14-year-old girl upon whom life-saving blood transfusions had been imposed after she had refused them for religious reasons.

The court held that although it is wrong to deny a person a say in what happens to her on the grounds of age alone, the teenager in this case did not have the capacity to exercise her judgment in a mature fashion and the forced transfusions were justified.

Our fundamental right to make decisions concerning our own bodies must be balanced against the obligation of society to protect its valuable citizens. The protection of a vulnerable citizen, in this case a minor, superseded her right to make a decision concerning her own body. How then do we apply these same principles to “golden agers?”

The Quebec Civil Code states very clearly that every person is inviolable and is entitled to the integrity of his person. What this means is that, as long as you are not a danger to yourself or to society, no one may interfere with you without your free and enlightened consent. You must know and understand what it is that you are consenting to or refusing, and your consent must not be forced on you by anyone.

The Canadian Medical Association’s Code of Ethics sets out physicians’ obligation to provide their patients with all the information necessary to consent or not to medical procedures, and instructs physicians to “respect the right of a competent patient to accept or reject any medical care recommended.” No one can be forced to undergo care of any nature, whether it be an examination, specimen taking, tissue removal, or treatment, whether medical, psychological or social. Just because a person is ill does not mean he lacks capacity. If a person is competent, he is the best judge of what is in his own best interest. The will of the individual supersedes everything. That is our law — and it also applies to situations involving assisted living and moving into care establishments of varying types.

So, what if we are competent and perfectly capable of making our own decisions and, in that context, we decide we do not want medical treatment even though we are ill and the treatment is recommended by our doctor? What if we do not want to go into a home or a residence but others are pushing us to do so? Must we listen to those around us, or do we have a right to decide for ourselves?

There have been cases where a hospital, physician or relative has applied for a court order to force treatment upon a patient. However, if we understand the nature of our condition and the purpose of the suggested treatment and are able to foresee the possible consequences of refusing the treatment, we are considered competent and able to decide for ourselves. The courts have held that just because a patient disagrees with her physician with regard to her care, it does not mean she is incompetent. What is important is that she understand the possible consequences of her decision.

Placement in a residence or institution is considered part of treatment, so as long as you are competent you cannot be forced to go into one. However, where the court found a patient minimized the nature of her illness and did not understand the benefits of supervised accommodation or the risks of living on her own, an order for placement was granted. In another case where both an order for treatment and an order to force a patient into a residence were requested, the court granted the treatment order on the grounds the patient did not fully understand the nature of her condition or the necessity of the treatment. However, it refused to grant an order for placement as it predicted that after treatment the patient would be able to leave the hospital and return home. In yet another case a hospital patient with incurable cancer refused to go to a long-term care establishment and expressed her desire to return to her home. This patient understood her medical condition and the judge stated that her right to self-determination included the right to refuse placement. The hospital’s request was rejected.

So, should we listen to those around us or decide for ourselves? The answer is: both. We should listen to those advising us and then have the courage to decide for ourselves.

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