Valid Consent

The Canada Health Act does not currently define valid consent. The First Nations Health Authority (FNHA) in British Columbia has been exploring forced sterilization and consent, defining  consent as a basic human right within health care.

The FNHA’s consent and coercion guide for health care practitioners quotes lawyer Alisa Lombard, who stated that: “Consent in the context of sterilization specifically requires acute attention to the fiduciary relationship between patient and physician which always governs that relationship. Bodily autonomy is inalienable, and consent requires rigorous—not casual—adherence to the legal requirements of consent. The inalienable right to bodily autonomy is subject to the legal tenets of proper and informed consent, which include capacity, specificity, voluntariness and information.”

The Criminal Code of Canada does not specifically address health. Currently, the issue of forced sterilization falls under aggravated assault. Bill S-250 will amend the Criminal Code by criminalizing forced sterilization. The bill identifies the Survivors Circle for Reproductive Justice as the recognized body to advance a universally understood national standard of full, free, and informed consent around sterilization procedures.

Current consent standards taught to health professionals exist across multiple jurisdictions and are interpreted in various ways. The Canadian Medical Association defines the following requirements for valid consent: “For consent to serve as a defense to allegations of either negligence or assault and battery, it must meet certain requirements. The consent must have been voluntary, the patient must have had the capacity to consent, and the patient must have been properly informed.”