Chapter 6: The Law of Consent and Capacity in Health Care


Additional Recommended Readings


Sibbald, R., P. Chidwick, and L. Hawryluck (2014). Standard of care and resource implications of the Cuthbertson v. Rasouli ruling. Canadian Medical Association Journal, 186(5), 327–328. http://www.cmaj.ca/content/186/5/327

This article discusses the clinical and health system implications of the Supreme Court of Canada’s decision regarding withdrawal of life support in Rasouli.


Lamont, S., Y. Jeon, and M. Chiarella (2013). Health-care professionals’ knowledge, attitudes and behaviours relating to patient capacity to consent to treatment: An integrative review. Nursing Ethics, 20(6), 684–707. http://nej.sagepub.com/content/20/6/684.abstract

In a synthesis of 23 research studies, the authors examine the knowledge, attitudes, and behaviours of health care professionals with respect to patient capacity to consent to or refuse treatment. They note that there is tension between legal, ethical, and professional standards and what occurs in practice.


Chettih, M. (2012). Turning the lens inward: Cultural competence and providers’ values in health care decision making. The Gerontologist, 52(6), 739–747. http://gerontologist.oxfordjournals.org/content/52/6/739

This article stresses the importance of considering patients’ cultural values and beliefs on these issues of informed decision-making. A social constructivist perspective and the clinical concept of cultural counter transference are proposed as aides in achieving this awareness and improving care.


Relevant Legislation


Federal: http://laws.justice.gc.ca/en


Alberta: www.qp.alberta.ca/laws_online.cfm


British Columbia: www.bclaws.ca


Manitoba: web2.gov.mb.ca/laws/index.php


New Brunswick: www2.gnb.ca/content/gnb/en/departments/attorney_general/acts_regulations.html


Newfoundland and Labrador: www.assembly.nl.ca/Legislation


Nova Scotia: nslegislature.ca/legc/

  • Hospitals Act, R.S.N.S. 1989, c. 208
  • Human Tissue Gift Act, R.S.N.S. 1989, c. 215
  • Incompetent Persons Act, R.S.N.S. 1989, c. 218
  • Medical Consent Act, R.S.N.S. 1989, c. 279
  • Powers of Attorney Act, R.S.N.S. 1989, c. 352

Ontario: www.assembly.nl.ca/Legislation


Prince Edward Island: www.gov.pe.ca/law/statutes


Quebec: www3.publicationsduquebec.gouv.qc.ca/loisreglements.en.html


Saskatchewan: www.qp.gov.sk.ca


Northwest Territories: www.justice.gov.nt.ca/legislation/search


Nunavut: www.justice.gov.nu.ca


Yukon Territory: www.gov.yk.ca/legislation/


Discussion Questions


  1. What are the elements of valid consent?
  2. When must consent be obtained?
  3. What is one exception to the consent requirement?
  4. What are substitutes to individual consent and when may they be used?
  5. Is the substitute decision-maker for health care also the decision-maker for financial issues? Explain.