iii) Common law access to treatment
[135] We were not directed to any common law history of entitlement to drug therapy. The closest analogue is the doctrine of informed consent, which makes it a civil wrong to impose treatment without the consent of the patient. The patient may also demand that treatment, once commenced, be withdrawn or discontinued: see Rodriguez at pp. 598-99. While there is obviously a difference between a right to refuse treatment and a right to demand treatment, they can also be seen as two points on a continuum rooted in the common-law right to self-determination with respect to medical care. This includes the right to choose to select among alternative forms of treatment. Robins J.A. summarized the common law in Malette v. Shulman*1990 CanLII 6868 (ON CA), (1990), 72 O.R. (2d) 417 at p. 424, 67 D.L.R. (4th) 321 at p. 328 (C.A.):
The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor's opinion, it is the patient who has the final say on whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to proceed in the face of a decision to reject the treatment, he would be civilly liable for his unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to preserve the patient's life or health. The doctrine of informed consent is plainly intended to ensure the freedom of ind ividuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others . . .
(Emphasis added)
[136] Some common-law support for access to*
