Giving Medical Consent

The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic discusses the consent required for medical treatment by doctors.

Informed Consent

A doctor cannot provide medical treatment without informed consent from the appropriate persons. Informed consent means that the appropriate person understands the medical treatment required and is aware of its consequences. The consequences include knowledge of the consequences of choosing not to take the medical treatment. Consent may be written, spoken or implied from the circumstances.

Where Informed Consent is not Possible

There are circumstances where a person is unable to give informed consent. These circumstances can include where a person is;

  • (1) Unconscious;
  • (2) A minor (under the age of 18); or
  • (3) Mentally incapable of making decisions;

A person is also unable to give informed consent in certain circumstances, where the legislation of Alberta directs the medical treatment be administered.

 

(1) Relevant Person in Unconscious

Where a person cannot give their consent because they are unconscious, doctors will provide the necessary medical treatment.

Where a person is unconscious, doctors can be made aware of their advance medical directions by a tag, or card carried by the patient. A doctor will abide by that tag or card. If the patient carries a Jehovah Witness alert card, the doctor will likely abide by the wishes expressed in that document.

(2) Relevant Person is a Minor

If the patient is a child or minor (under the age of 18), their guardian can give or refuse consent for medical treatment. Generally, Alberta hospitals and doctors will ask for a parent or guardian’s consent to perform surgical procedures on persons under the age of 18 and who still live at home. The guardian’s decision must always be in the best interests of the child.

In Alberta, a ‘mature minor’ is entitled to give or refuse consent for any proposed medical treatment or procedure. A medical practitioner can make a determination as to whether a young person has sufficient intelligence and maturity to fully appreciate the nature and consequences of a medical treatment or procedure. There is no set age for a ‘mature minor’, however, generally the minor must be 14-16 years of age and capable of fully appreciating the nature and consequences of the particular medical procedure or treatment.

Parental or guardian consent may not be required for a minor in the following situations;

  • Where a minor is married and has a child, they may give consent for their own medical treatment and the medical treatment of their child.
  • Where a child over the age of 16 lives on their own and is considered a ‘mature minor’, they may give consent for their own medical treatment.
  • Where a child over the age of 16 lives at home and requires urgent and necessary medical treatment, their consent is likely enough for the doctors to perform the urgent medical treatment.
  • Where a child has a Court Order for medical treatment without their parent or guardians consent, after a doctor refuse to give the treatment without a parent or guardian’s consent.

(3) Mentally incapable of making decisions

A patient may lack the mental capacity to make decisions about their medical treatment. A person can lack the mental capacity when they are;

  • Suffering serious brain damage (including a coma);
  • Lacking the mental capacity; or
  • Of an advanced age.

Where a person is mentally incapable of make medical decisions, a doctor will provide medical treatment based on the patient’s best interest. The Doctor may also consult with the family members in making a decision.

In Alberta, a person can plan for medical decision-making in the event of mental disability. In most circumstances this planning can only be executed by an adult. A person may be able to consent to simple treatments, such as taking antibiotics for an infection. A person may not be able to consent to more complex medical treatment, as they may not understand the consequences or serious side effects that may occur.

 

Court Order to for Medical Treatment

The Court will consider every dispute for medical treatment on its own merits. This means that every situation is unique and all relevant facts are considered by the Court.

For example, a doctor or hospital will not usually perform an abortion on a child under the age of 14 without parental consent, unless the patient has already borne another child or there are very serious medical or psychiatric reasons for the procedure. Also, a request for cosmetic surgery that is usually not necessary or urgent will probably require parental consent.

 

Temporary Guardianship or Permanent Guardianship Order 

A child who is under guardianship of the Director, because of a Temporary Guardianship or Permanent Guardianship Order, can refuse essential treatment. The Director can make an application to the Court for an Order authorizing treatment and the Court will make a decision based on the facts of the situation.

Medical Treatment without Informed Consent

In Alberta, medical treatment may be given without consent, if there is a law that directs the medical treatment to be administered. For example, in cases of sexually transmitted diseases, persons suspected of being infected must submit to an examination or treatment.

Medical Treatment and Confidentiality

Your medical information belongs to you, the patient, and you are entitled to have access to the medical files. It is the policy of health clinics, family planning clinics, and alcohol and drug abuse centers to keep treatment information confidential.

A doctor may be forced to give your medical information during legal proceedings. Further, where it is believed to be in the patient’s best interest, government departments, law-enforcement and other government service providers are permitted to share information amongst themselves. For example, a doctor must report communicable diseases to government authorities.

For a ‘mature minor’, a doctor is usually required to keep your medical information confidential. For a person who is not yet a ‘mature minor’, their guardian can consent to disclosure on behalf of the child.

Medical Treatment and Protective Services

A doctor who believes a child under the age of 18 is in need of protective services must report the situation to Alberta Children’s Services. The identity of anyone who makes a report to Alberta Children’s Services remains confidential.

If a person who makes a report is wrong about suspected abuse or mistreatment of a child, that person cannot be sued. The person who made a false report can be sued if the report was made maliciously, or without reasonable and probable grounds.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.