REFUSAL OF MEDICAL TREATMENT IN CAPTIVE CIRCUMSTANCES

Authors

  • MARGARET A SOMERVILLE

Abstract

There is little definitive authority on the extent to which a court may order or authorize medical treatment to be administered to a competent person, who refuses that treatment and, in particular, when that person is in "captive" circumstances. The "captive" circumstances may vary: the person may be held awaiting trial, may be held on the ground that he is unfit to stand trial or pursuant to a verdict of insanity, may be serving a term of imprisonment, may be confined in hospital, either involuntarily through civil commitment or because of physical or mental disability, or may be held while awaiting deportation. The scope of the courts' authority raises a number of questions: what constitutes and the significance of the "competence" or "incompetence" of the person being held; whether the courts should order or simply authorize treatment; the limits which should be placed on the extent of the treatment ordered or authorized; the safeguard procedures which should surround any order that is made. This article explores these questions, primarily in the light of two recent decisions of the courts in Quebec.

Keywords:

Constitutional Law

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Published

1985-03-01

Issue

Section

Legal Commentary

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