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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic discusses the consent required for medical treatment by doctors.
A doctor cannot provide medical treatment without informed consent from the appropriate persons. Consent may be written, spoken or implied from the circumstances. Informed consent means that you understand the medical treatment you require and know its consequences. You must also know the consequences of not taking the medical treatment.
Sometimes, there are circumstances where you are unable give your informed consent. For example,
- You are unconscious;
- You are a minor child;
- You are mentally incapable of making decisions;
- The legislation of Alberta directs the medical treatment be administered.
Where a person cannot give their consent because they are unconscious, the doctors will provide the necessary medical treatment. If, however, the doctor is made aware of the patient’s advance medical directions by a tag, or card carried by the patient, the doctor will abide by that card. If the patient carries a Jehovah Witness alert card, the doctor will probably abide by the wishes expressed in that document.
A minor child cannot give their consent, however, a mature minor who is not a ward of the Director under child welfare legislation is entitled to give or refuse to give consent. Generally, Alberta hospitals and doctors will ask for the parents’ or guardian’s consent to perform surgical procedures on young persons under the age of 18 years and who still live at home. Parental or guardian consent may not be required in the following situations:
- A minor child is married and has a child. The minor child may give consent for their own medical treatment and the medical treatment of their child.
- A child 16 years and older who lives on their own if considered a mature minor. The child must be mentally capable to make decisions for their health care.
- A child 16 years and older who lives at home and requires urgent and necessary medical treatment. The child’s consent is likely enough for the doctors to perform the urgent medical treatment.
A minor child has a Court Order for medical treatment. Sometimes the doctor may refuse to give the treatment without the guardian or parents’ consent and the minor child applies to the Court for an Order that the doctor provides the required medical treatment.
The Court will consider every dispute for medical treatment on its own merits. 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. A request for cosmetic surgery that is usually not necessary or urgent will probably require parental consent.
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 then make an application to the Court for an Order authorizing treatment and the Court will make a decision based on the merits of the situation.
Where a person cannot make their own decision for medical treatment because of their advanced age, serious brain damage, or lack of mental capacity, the doctor will make the decision to provide medical treatment based on what is in that patient’s best interest. The Doctor may also consult with the family members in making a decision.
There is legislation in Alberta that permits one to plan for medical decision-making in the event of mental disability. However, in most circumstances this planning and required document can only be executed by an adult. A person of this condition may be able to consent to simple treatments like the taking of antibiotics for an infection; they may not be able to consent to more complex medical treatment because they do not understand the serious side effects that may occur.
Medical treatment may be given without consent if there is special Alberta Legislation that directs the medical treatment to be administered. For example, in cases of sexually transmitted diseases, persons suspected of infection must submit to an examination or treatment.
If you are a mature minor, a doctor is usually required to keep your medical information confidential. Your medical information belongs to you, the patient, and you are entitled to have access to the medical files. If you are not yet a mature minor, your guardian can consent to disclosure on behalf of the child. It is the policy of health clinics, family planning clinics, and alcohol and drug abuse centers to keep your treatment information confidential. Sometimes, a doctor can be forced to give your medical information during legal proceedings. A doctor must also report communicable diseases to government authorities.
A doctor who believes a child under the age of 18 years is in need of protective services must report the situation to Alberta Children’s Services. The identity of anyone who makes a report is confidential. If they are wrong about the suspected abuse the child may have suffered, they cannot be sued unless it was done maliciously, or without reasonable and probable grounds.