Many people wonder, is it legal to force medical treatment on someone? People generally assume it is not. After all, would that not be a significant infringement of that person’s rights?
However, the actual answer, as is often the case in law, is that it depends.
The question of forcing treatment can arise in a variety of circumstances, such as:
• When a person has Schizophrenia and refuses to take antipsychotic medication
• When a person is unconscious due to an accident and requires emergency care
• When a teenager refuses medication and the parents disagree with this decision (such as in cases involving Anorexia Nervosa)
• When a person has Alzheimer’s disease and requires physical health care (for example, treatment for cancer)
Numerous times we have heard people say that a relative needs treatment...
“but we can’t force her because she is an adult…”
However, in some cases it is legally permissible in Ontario to force medical treatment on an adult.
The number one consideration in the question of forcing medication on another person in Ontario is whether that individual is capable of making his or her own decisions. If capable, then what another person thinks is best is usually irrelevant and of no legal force – even if that person is a medical professional.
There is a simple two-part test in the Health Care Consent Act to determine whether a person is legally capable of making a particular treatment decision:
1. Is the person able to understand the information relevant to making a decision about the treatment?
2. Is the person able to appreciate the reasonably foreseeable consequences of the decision or lack of a decision?
If the answer is “yes” to both of these questions, then the person is permitted to decide for himself or herself whether to consent to or refuse treatment (although there are some exceptions). Of course, capacity is not all-inclusive. A person may be capable with respect to some decisions, and incapable with respect to others. To make matters more confusing, capacity can fluctuate. A person could be legally capable one day, and incapable the next. This can arise in cases involving mental illness and dementia.
In most cases it is the second branch of the test that an "incapable" person will fail. This is often established by comments demonstrating the person lacks insight into their condition.
Although the word "test" is used, there is not actually a specific capacity test that is administered. Rather, capacity is a legal concept and the results can emerge through conversation. In the case of capacity to make a treatment decision, it is the health care professional proposing the treatment who decides if the patient has or lacks capacity. It is important to note that, legally, our health care professionals must presume their patients are capable (unless there are "reasonable grounds" to think otherwise).
The law in Ontario places great emphasis on autonomy and permits capable people to make their own decisions – even if those decisions are objectively bad decisions (such as refusing treatment knowing that this might result in death). The most notable example of this scenario is when a person who is a Jehovah’s Witness refuses a life-saving blood transfusion because it is against that person’s religious views. Many people have difficulty understanding this choice, but in the eyes of the law, it is only relevant that the decision be a capable one.
In short, there are in fact some circumstances in which treatment can be forced (including forcing someone to attend a hospital for examination), but we generally cannot force treatment on a capable person who refuses. There is a long-standing tradition of common law in Ontario upholding the right to bodily integrity, dignity, and personal autonomy, and any forced treatment must occur only in specific circumstances and in accordance with the applicable laws.
If you would like to know more about how this blog post applies to your loved one, you can book a meeting with us by texting or calling 416-937-8768 or emailing us.
Disclaimer: Capacity is a very complex topic and this blog canvasses only some of the relevant information. DO NOT RELY ON THIS BLOG TO MAKE ANY LEGAL DECISIONS. Please consult with your legal advisor or contact Lisa Feldstein Law Office to find out how the law applies to your particular circumstance.
through a difficult time?