Stand up for your health care rights, but don’t abuse them

Joyce Blond Frank B.A., B.C.L., LL.M.

May, 2009

You are wearing a hospital gown, sitting in a wheelchair at the hospital, being ignored. You probably feel vulnerable and powerless. But you are not: The law has provided you with rights. The Quebec Health and Social Services Act states its intention to protect you and ensure your recovery and return to good health. To this end, those who provide health and social services are required to respect you and recognize your rights, to treat you with courtesy, fairness and understanding and to permit you to participate in decisions concerning your health and welfare. The services you receive must be appropriate not only from a scientific point of view but also from a humane and social point of view. They must be continual, personalized (appropriate for your particular health needs) and safe. You, in turn, have an obligation to refrain from abusing these services.

Your right to care and respect and the hospital’s obligation to provide appropriate services are both deeply ingrained in our law. You have a right to choose your own physician, and you cannot be refused treatment for any reason considered discriminatory under the Quebec Charter of Human Rights and Freedoms, such as race, colour, sex, sexual orientation, age, religion, language, ethnic or national origin, social condition or handicap.

You have a right to be informed of your state of health and to be advised of your treatment options as well as of the risks and consequences associated with each one so that you have the information necessary to either consent to or refuse treatment. You cannot be treated – or even examined – unless you consent.

In a recent case a very sick 62-year-old patient who routinely failed to follow physicians’ instructions or undergo treatment contested the hospital’s efforts to force her to be admitted. Although it was established that hospitalization would be beneficial and that it was dangerous to her health for her to return home, the judge held that the patient had the capacity to decide for herself and therefore the right to refuse treatment, even at risk to her life. The hospital’s request to force hospitalization was refused.

It is important to remember that a hospital’s obligations are subject to available resources, both human and financial. An institution has the right to organize its services in accordance with those resources, so a lack of resources can sometimes justify a hospital’s refusal to keep a patient.

So what happens to a patient when the institution says he must leave? The law states that the patient must leave as soon as he receives his notice to do so. However, the law also provides that he can only be forced to leave if his condition permits him to return home or he is assured of a place in another establishment that can give him the services he requires.

When a 71-year-old man requiring four hours of care daily was informed by the establishment in which he had been residing for seven years that he would be temporarily transferred out until permanent accommodation could be found elsewhere, he objected to the transfer and invoked his right to choose where he wished to go. The court accepted the fact that his current residence could no longer provide the care he required, but the judge said the reasons for his objection were reasonable and held that the decision to transfer him temporarily was arbitrary and could not be up held. The residence was ordered to keep him until he could be transferred to a place he deemed acceptable.

In another case, a 29-year-old man, almost completely paralyzed as the result of an accident, had been hospitalized for almost seven years. All his needs, physical, psychological and social, were being met and he was content. The hospital wanted to transfer him to a longterm care facility and he contested on the grounds that such a move would violate his right to obtain services from the institution of his choice. In this case the court held that his rights were not absolute and the hospital’s resources justified its putting a limit on the patient’s rights. The hospital was a short-term care institution with a limited number of beds, so patients had to be transferred to longterm care institutions as soon as possible. Another place that could provide continuity of care was available, so the court ordered the transfer.

What do you do if you feel you have been unfairly treated and your rights have been violated? Every health institution has a complaint procedure, and many have an ombudsman. You have the right, the power and the means to complain.