Integrity of the Person: Care, Consent and Confinement

Overview

A patient can understand a proposed operation and still refuse it. A person under tutorship can make a valid decision about medication. A teenager can consent alone to necessary care while the law reserves a different response to that teenager's refusal. These situations require separate answers to three questions: what intervention is proposed, who may decide, and what permits the intervention if consent is unavailable or refused?

Integrity (intégrité) belongs to the personality rights (droits de la personnalité) recognized by the Civil Code of Quebec (Code civil du Québec). It protects the person in physical and psychological dimensions. Inviolability (inviolabilité) requires a lawful basis for interference, even when the proposed intervention has a therapeutic purpose. Article 3 CCQ recognizes these rights; art. 10 CCQ makes free and informed consent the ordinary basis for interference.

The analysis below follows JurisClasseur Québec, Droit civil, Personnes et famille, fascicule 2, « Intégrité de la personne ». It connects the general rules on exercising civil rights with decisions about care, research and living donation. Confinement for psychiatric assessment raises a separate liberty question. The lesson on the duty to inform develops the corresponding medical-liability analysis.

Learning Objectives

• Determine who may consent by distinguishing the proposed intervention, age, legal capacity and actual ability to decide.
• Apply the conditions for substitute consent, judicial authorization and emergency intervention without treating refusal as proof of incapacity.
• Distinguish care, research, living donation and confinement, including their different protections against unwanted intervention.

Start with the intervention and the person's ability to decide

Care under art. 11 CCQ extends beyond surgery and medication. Examinations, specimen taking and other interventions can require consent. The fascicule includes psychological and social interventions, physical or pharmacological restraint, isolation and basic care. Accommodation can fall within care when it provides the setting necessary to deliver an appropriate treatment plan. Calling an intervention an assessment or a placement does not settle its legal classification. (Fascicule 2, paras. 17–24.)

Care required by the state of health and care not required by the state of health engage different rules. The classification depends on the intervention's purpose and the person's condition. A therapeutic procedure addressing a physical or psychological condition cannot be classified solely from its name. Conversely, a medically performed procedure does not become necessary care simply because a physician performs it.

Capacity to consent (aptitude à consentir) is assessed for the actual decision. Legal capacity (capacité juridique) concerns the legal ability to exercise rights. An adult's tutorship does not itself establish inability to understand a proposed treatment. The same distinction explains how a minor legally entitled to consent alone may nevertheless lack the understanding needed to make that particular decision.

An adult is presumed able to decide. Mental illness, psychiatric treatment, advanced age, a protective measure, dangerous conduct and disagreement with a diagnosis do not individually establish incapacity. The person invoking incapacity must prove it through concrete evidence. Understanding can also differ between decisions: someone may understand medication but lack the ability to assess a proposed accommodation, or the reverse. (Fascicule 2, paras. 9–16 and 113–117.)

Evaluate understanding without substituting medical agreement

The fascicule draws its assessment framework from Institut Philippe-Pinel de Montréal c. G. (A.), EYB 1994-28948, [1994] J.Q. no 837 (C.A.). The inquiry concerns whether the person understands the condition for which care is proposed, the nature and purpose of that care, its benefits and risks, and the consequences of declining it. It also considers the effect of the person's illness on that understanding.

These considerations must be assessed together. The source relies on B. (M.) c. Centre hospitalier Pierre-Le-Gardeur, REJB 2004-54544, [2004] J.Q. no 1711 (C.A.), to reject a mechanical cumulative checklist. The reasons for a decision and the person's actual understanding matter more than whether the decision matches the treating team's recommendation. An account recording only “patient refuses” cannot establish all the required findings.

Clinical evidence should connect the condition to the decision-making difficulty. Repeating the diagnosis without explaining its effect on comprehension leaves that connection unproved. The burden of proof and the evaluation of expert evidence remain relevant when conflicting accounts reach court.

Consent and refusal by an adult who can decide

Free and informed consent (consentement libre et éclairé) requires freedom from undue constraint and information permitting a meaningful decision. The person must understand the proposed care, its anticipated results, associated risks and side effects. An explanation that the person cannot understand does not become sufficient merely because it was delivered. Article 10 CCQ supplies the governing principle, while art. 11 CCQ ordinarily imposes no additional formality and permits withdrawal at any time, even verbally. (Fascicule 2, paras. 25–28 and 47.)

Written documentation remains useful evidence, but a signature does not replace the underlying exchange. Identify the care discussed, the information provided, the decision expressed and any later change. The authorization for one intervention should not be treated as an unlimited permission for every procedure that might eventually be convenient.

An adult who can make the decision may refuse necessary care, including life-preserving care. Personal or religious reasons do not by themselves invalidate that choice. The seriousness of the consequences calls for careful information and assessment; it does not transfer the decision to relatives or clinicians. A court cannot override an otherwise valid refusal merely because it regards treatment as beneficial. (Fascicule 2, paras. 44–47 and 62–65.)

Advance medical directives (directives médicales anticipées) require separate attention when the adult later loses the ability to consent. Articles 11 and 15 CCQ distinguish applicable directives from the ordinary substitute-consent route. Determine whether directives exist and cover the present care and clinical situation before asking a representative to decide. A protection mandate and medical directives serve different functions: designating someone to act does not make every later decision depend on that person's personal preferences.

Applicable directives entered in the register or the person's record have, for professionals with access to them, the same value as wishes expressed by a capable person. The representative cannot simply substitute a preferred outcome. If the now-incapable adult categorically refuses care previously accepted in those directives, the judicial-authorization protection of art. 16 CCQ remains applicable. Advance acceptance and present opposition must therefore both be examined. (Fascicule 2, paras. 63, 75 and 99.)

Autonomy remains subject to public order (ordre public). Article 9 CCQ prevents consent from overriding mandatory limits, including the specific protections governing living donation and research. The right to refuse treatment and the ability to authorize an intervention that exposes a donor to impermissible harm therefore require separate reasoning. (Fascicule 2, paras. 48–55 and 64–72.)

Worked Example: a refusal under tutorship

Factual Scenario

An adult under tutorship needs surgery. She accurately explains the operation, its potential benefit and the substantial risk of refusing it. She prefers a shorter life without the burdens of recovery. Her tutor agrees with the surgeon that surgery is desirable and signs an authorization.

Substitute consent and the adult's opposition

For required care, substitute consent (consentement substitué) follows the hierarchy in art. 15 CCQ when the adult cannot consent and no applicable advance medical directives decide the issue. The mandatary or tutor acts first. If the adult is not represented in that way, the married, civil union or de facto spouse may consent. In the absence of a spouse, or where the spouse is prevented from acting, a close relative or a person showing a special interest in the adult may act.

This is a hierarchy of legally authorized decision-makers. The professional should establish the representative's status and authority, rather than accepting whichever family member arrives first. The rules on tutorship to an adult and protection mandates explain how those forms of representation arise. The absence of a tutor does not, by itself, prevent use of the statutory family route.

Article 12 CCQ requires the decision-maker to act in the person's sole interest and, as far as possible, comply with previously expressed wishes. Before consenting, the decision-maker must assess whether the care is beneficial despite serious or permanent effects, advisable in the circumstances, and proportionate in its risks and anticipated benefits. A relative's own convenience, beliefs or preferences cannot replace that assessment.

Refusal by a representative is possible. Treatment need not be continued at any cost merely because it can prolong life. The question is whether refusal satisfies the person's interest and the statutory criteria. A sincere refusal can nevertheless be unjustified; conversely, disagreement with the treating team does not automatically make refusal unjustified. (Fascicule 2, paras. 74–94.)

A categorical refusal (refus catégorique) by an incapable adult triggers an additional protection under art. 16 CCQ. Except for emergency or hygienic care, the representative's consent cannot overcome it. Judicial authorization (autorisation judiciaire) is required. The source describes firm and persistent refusal, assessed through words and conduct. It cautions against obtaining anticipatory permission simply because the person might oppose treatment later. Treatment never actually proposed and discussed cannot already have been categorically refused. (Fascicule 2, paras. 29–35, 97–101 and 118–120.)

If an authorized substitute can give valid consent and the adult does not categorically refuse, the ordinary substitute route operates. If the authorized person is prevented from acting or unjustifiably refuses required care, art. 16 CCQ supplies a separate ground for seeking authorization. These grounds should not be merged: an application based on the representative's unjustified refusal differs from one based on the adult's categorical opposition.

Judicial authorization requires a defined case and care plan

For an application based on an incapable adult's categorical refusal, establish the inability to consent and the refusal before analysing the proposed care. Then demonstrate that the care is required, beneficial, advisable and proportionate under art. 12 CCQ. A persuasive account of medical benefit does not dispense with the threshold findings. (Fascicule 2, paras. 110–129.)

The care plan must identify what is sought and justify its scope. Generic permission for any future treatment would transfer the statutory decision to the treating team. Proposed accommodation must be presently necessary for appropriate care, with alternatives considered. An institutional preference for easier supervision cannot alone establish the conditions for forced accommodation. The proposed duration also requires individual justification and a specified endpoint. (Fascicule 2, paras. 104, 121–137.)

Article 23 CCQ requires the court to obtain the relevant expert and representative opinions and, unless impossible, the opinion of the person concerned. Inability to consent does not automatically mean inability to express preferences or participate in the proceeding. The source emphasizes meaningful notice, an opportunity to contest and the possibility of obtaining competing expert evidence. Its analysis of the judicial role rejects routine approval of unexplained conclusions.

The distinction between care and care not required by health also controls refusal at this stage. Article 23 CCQ requires respect for the person's refusal unless the care is required by the state of health. Authorization to impose necessary treatment therefore cannot be extended automatically to a living donation or an elective procedure. The person's interests and expressed position must be examined for the intervention actually before the court.

Medical records can support the evidence without making all personal information freely disclosable. The lessons on privacy and professional secrecy address the separate protection of information. A care proceeding remains a decision about a rights-holder whose participation and privacy require attention.

Emergency narrows the time available, not every legal protection

Article 13 CCQ allows medical care without consent where there is an emergency, the person's life is in danger or integrity is threatened, and consent cannot be obtained in time. These conditions require facts about both the threatened harm and the available time. The inconvenience of contacting a representative does not establish the exception.

Consent remains necessary if the care is unusual, has become useless, or could have intolerable consequences for the person. The emergency exception consequently requires an assessment of the proposed intervention as well as the patient's condition. It does not provide general permission to pursue every available treatment. (Fascicule 2, paras. 21–22 and 39–40.)

A capable adult's informed refusal does not become an inability to obtain consent simply because the physician urgently wants a different answer. The source expressly distinguishes urgent need from permission to override that refusal. For an incapable adult's categorical opposition, art. 16 CCQ separately dispenses with judicial authorization in an emergency or for hygienic care. The exception concerns that authorization requirement; the nature of the care and other applicable consent conditions still matter.

Worked Example: unreachable family and an available refusal

Factual Scenario

An unconscious adult arrives with an injury requiring immediate intervention. No representative can be reached before the threatened harm would occur. In a second situation, the adult is conscious, understands the intervention and its consequences, and freely refuses it.

Minors: distinguish consent, refusal and the kind of care

For care required by health, art. 14 CCQ ordinarily assigns consent for a child under 14 to the person having parental authority (autorité parentale) or the tutor. The child's opposition does not itself trigger the same judicial-authorization rule as the refusal of a minor aged 14 or older. The child's rights, understanding and interests still require attention. The lessons on children's rights and minority supply the broader context.

A capable minor aged 14 or older may consent alone to required care. If the minor's condition requires remaining in an establishment for more than 12 hours, the holder of parental authority or tutor must be informed. This information requirement does not convert the minor's independent consent into a requirement for parental authorization. (Fascicule 2, paras. 179–186.)

Refusal follows a different rule. Under art. 16 CCQ, judicial authorization is required to impose care refused by a minor aged 14 or older, subject to the emergency exception. The refusal need not satisfy the incapable adult's categorical-refusal threshold. The court assesses the child's interest and rights, including the proposed benefits and burdens; the relevant framework includes art. 33 CCQ. Outside the exception, a parent's signature alone cannot override the older minor's refusal.

In an emergency where the older minor's life is in danger or integrity is threatened, art. 16 CCQ permits the consent of the holder of parental authority or tutor to suffice. For a child under 14 whose authorized representative is prevented from acting or unjustifiably refuses necessary care, judicial authorization is ordinarily required under the same article, subject to the applicable emergency rules. A parental refusal can be justified where burdens and limited benefit support it; the child's welfare cannot be assumed to require every possible intervention. (Fascicule 2, paras. 187–203 and 225–253.)

Care not required by health: read the conjunction

Article 17 CCQ permits a capable minor aged 14 or older to consent alone to care not required by health. Parental or tutor consent becomes necessary where that care presents a serious risk to health and may cause grave and permanent effects. The statutory requirements are linked cumulatively.

Under art. 18 CCQ, consent for a person under 14 or a person incapable of consenting comes from the holder of parental authority, mandatary or tutor, as applicable. Judicial authorization is additionally required if the care presents a serious health risk or may cause grave and permanent effects. Either branch is sufficient. For an incapable adult, being a spouse or concerned relative alone does not confer the authority reserved here to the mandatary or tutor.

Article 24 CCQ requires written consent to this category of care, although withdrawal can be verbal. In proceedings under art. 23 CCQ, the person's refusal must be respected because the care is not required by health. The risk thresholds govern who must authorize; they do not erase that protection. (Fascicule 2, paras. 149–162, 204–206 and 254–264.)

Worked Example: the same teenager, three proposals

Factual Scenario

A capable 16-year-old accepts treatment for an infection, refuses another treatment required by health, and requests a purely cosmetic intervention.

Research and living donation have their own conditions

Article 20 CCQ allows a capable adult to participate in research that could interfere with integrity only where the risk is proportionate to the reasonably anticipated benefit. The project must be approved and monitored by a research ethics committee (comité d'éthique de la recherche). Consent does not permit the parties to set aside those conditions.

Article 21 CCQ adds protections for minors and incapable adults. Proportionality must account for health and personal condition. Research involving the individual alone must offer potential health benefit; group research must offer potential benefit to people sharing the relevant age, disease or disability characteristics. A participant who understands the research's nature and consequences and objects cannot participate. The competent ethics committee must provide the prescribed approval and monitoring.

For a minor, the holder of parental authority or tutor normally consents. A minor aged 14 or older can consent alone where the competent committee finds minimal risk and circumstances justifying that route. For an incapable adult, the mandatary or tutor normally consents. Article 21 CCQ permits the person authorized for required care to act where the adult is unrepresented and risk is minimal. It also provides for sudden incapacity where the research must begin promptly and there is insufficient time to appoint a representative. The committee must determine whether the applicable exception's conditions are met. (Fascicule 2, paras. 163–167, 207–211 and 266–270.)

Article 24 CCQ ordinarily requires written research consent. A research ethics committee may accept another method where justified and determine how consent will be evidenced. Withdrawal remains possible, including verbally. Article 25 CCQ permits compensation for losses and inconvenience, rather than financial reward for participation. Under art. 22 CCQ, research use of material removed during care requires the relevant consent; consent to the original treatment cannot simply be assumed to cover that later use.

Living donation, expressed in the Code as alienation of a body part inter vivos (aliénation entre vifs d'une partie du corps), follows art. 19 CCQ. A capable adult may proceed only where the risk is proportionate to the reasonably anticipated benefit. For a minor or an incapable adult, the body part must be capable of regeneration and removal must create no serious health risk. Consent of the authorized representative and judicial authorization are both required. A relative's need for a kidney cannot override the regeneration condition for a minor donor. (Fascicule 2, paras. 71–72, 168–178, 212–223 and 271–281.)

Articles 23, 24 and 25 CCQ add protection through respect for refusal, written and revocable consent, gratuity, and the prohibition against repetition where it endangers health. The respect owed to the body after death follows a separate framework; rules for a living donor should not be transferred mechanically to post-mortem donation.

Confinement and treatment require separate legal bases

Confinement in an institution (garde en établissement) restricts liberty for reasons connected to mental state and danger. Accommodation within a care plan, psychiatric assessment and administration of treatment must each be classified. A person can present a danger while retaining the ability to consent to treatment. Equally, incapacity to consent does not itself establish grounds for psychiatric confinement. (Fascicule 2, paras. 12–17 and 283–289.)

Article 26 CCQ sets the principle that confinement requires consent or legal or judicial authority. Its representative-consent rule is narrower than the family hierarchy for required care: for an adult unable to express wishes, the mandatary or tutor may act, and representative consent is effective only if the person does not object. A spouse's power to consent to required treatment under art. 15 CCQ cannot simply be carried across to confinement.

Distinguish the stages and their safeguards

The operative framework distinguishes three stages. Preventive confinement under art. 27 CCQ and s. 7 of the Act respecting the protection of persons whose mental state presents a danger to themselves or to others addresses grave and immediate danger. It permits confinement without prior judicial authorization for a maximum of 72 hours, subject to the statute's limited extension where the period ends on a Saturday or holiday, no competent judge can act, and ending confinement presents a danger. Preventive confinement alone does not authorize compulsory psychiatric examination. (Fascicule 2, paras. 289 and 292–296.)

Temporary confinement for assessment requires a judicial decision under art. 27 CCQ, based on serious reasons to believe that the person's mental state creates a danger. Article 28 CCQ prescribes an initial examination within 24 hours after the institution takes charge, or within 24 hours of the order if preventive confinement already exists. If the first physician considers confinement necessary, a different physician must perform a second examination within 96 hours after taking charge, or within 48 hours of the order for someone already under preventive confinement. A conclusion that confinement is unnecessary requires release. Two conclusions favouring confinement allow a further maximum of 48 hours without consent or judicial authorization. (Fascicule 2, paras. 297–308.)

Confinement following assessment requires two reports concluding that confinement is necessary and the court's own serious reasons to find danger and necessity under art. 30 CCQ. Agreement between physicians does not replace the court's evaluation of all the evidence. Article 30.1 CCQ requires a fixed duration; confinement must end earlier when no longer justified. Under art. 38 of the Code of Civil Procedure, these confinement applications belong to the Court of Quebec (Cour du Québec). They differ from the care-authorization applications ordinarily heard by the Superior Court (Cour supérieure). (Fascicule 2, paras. 86, 301 and 314–334.)

None of these stages supplies general consent to psychiatric medication. The confinement order must be read for what it authorizes. Permission for detention or a specified examination cannot be expanded into permission for every form of treatment.

Article 31 CCQ requires information about the care plan and significant changes in it or in living conditions; for someone under 14 or incapable of consenting, the information goes to the person authorized to consent. Section 17 of the confinement statute protects confidential communications, with no restriction permitted on communications with the representative, authorized care decision-maker, lawyer, Public Curator or Administrative Tribunal of Québec. Section 21 permits contestation of continued confinement or a decision under the statute before that Tribunal. A confined person's letter stating the object and grounds is sufficient to initiate the proceeding. Contestation does not automatically suspend confinement; a Tribunal member must order otherwise. (Fascicule 2, paras. 348–351.)

Reform status as of 8 September 2026. The mental-health reform sanctioned on 12 June 2026 has substantive provisions awaiting commencement by government order under s. 88 of S.Q. 2026, c. 19. No order bringing the new confinement, psychiatric-directive or jurisdictional regime into force was located in the official Gazette through 8 September 2026. The framework above therefore retains the existing regime; an intervention after that date requires checking for commencement. Enacted reform.

Practice Checklist

• Classify each intervention: required care, other care, research, living donation, assessment or confinement.
• Establish age, actual understanding and the scope of any representation; avoid inferring incapacity from diagnosis or refusal.
• Identify the applicable directives or legally authorized decision-maker, and document information, consent, refusal and withdrawal.
• Apply art. 12 CCQ to substitute decisions, including benefit, proportionality and the person's expressed wishes.
• Identify the precise ground for judicial authorization and support a specific, time-limited care plan.
• Distinguish the older minor's refusal from the incapable adult's categorical refusal; apply the correct emergency conditions.
• Read art. 17 CCQ and art. 18 CCQ separately, including their different conjunctions and authorization requirements.
• For research or donation, verify the additional consent, risk, oversight, refusal and formality protections.
• For confinement, check the law in force on the intervention date and keep detention authority separate from treatment authority.