When working with users who have specific mental health needs, recourse to the court system may be necessary in some cases. Some of the judicial procedures that may be required are explained below.
Confinement in an institution
Preventive confinement
- Any physician may place a user under preventive confinement if the user refuses to remain in hospital and if there are serious reasons to believe that their mental state presents a grave and immediate danger to themselves and/or others;
- The person who refuses to remain hospitalized may therefore be kept in hospital without a court order and without a prior psychiatric examination being completed;
- Preventive confinement must not exceed a duration of 72 hours;
- After 72 hours, the user who still refuses to remain in hospital may leave, unless the court has ordered their temporary confinement or their confinement in an institution and unless the 72 hours ends on a Saturday, Sunday or holiday.
Temporary confinement
- If a psychiatrist has serious reasons to believe that a user presents a danger to themselves and/or others and should undergo a psychiatric assessment, but the user refuses to consent to it or is unfit to consent, a professional’s report should be completed in order to request that the user undergo a psychiatric assessment. An application for temporary confinement for the purpose of a psychiatric assessment is then presented before the Court of Quebec.
- Note that anyone may present such an application.
https://www.justice.gouv.qc.ca/en/documentation-center/forms-and-models/your-disputes/civil-proceedings/sj-1223a
- If the court itself has serious reasons to believe that the user’s mental state presents a danger to themselves and/or others and that their psychiatric assessment is necessary, their temporary confinement will be ordered;
- The user must then undergo two psychiatric assessments by two different psychiatrists. If the user is under preventive confinement, the first assessment must take place no more than 24 hours after the court order and the second no more than 48 hours after the court order. If the person is not under preventive confinement or was not hospitalized before the temporary confinement was ordered, the second assessment must take place no more than 96 hours after the court order or after the person is admitted to the institution.
Confinement in an institution
- If two psychiatric assessments conclude that a user’s mental state presents a danger to themselves and/or others and that their confinement in an institution is necessary, but the user does not consent to remain hospitalized, an application for confinement in an institution must be presented before the Court of Quebec;
- If the court itself has serious reasons to believe that the user presents a danger to themselves and/or others and that their confinement is necessary, the user’s confinement in an institution will be ordered;
- The duration of the confinement is determined by the court and is typically of maximum 30 days. If the court orders the user’s confinement in an institution for more than 21 days and their confinement remains necessary beyond that period, a new psychiatric assessment must be completed on the 21st day. Otherwise, the user’s confinement ends without further formality at the end of the 21st day;
- The order for confinement in an institution may be renewed before it expires if the user continues to present a danger to themselves and/or others and does not consent to remain hospitalized.
Orders authorizing care (treatment/placement)
If certain well-defined legal criteria are met, a court may issue an order authorizing a person’s care (treatment and/or placement) despite the person’s categorical refusal.
- Applications for authorizations of care are presented before the Superior Court. The court will have jurisdiction to authorize a care plan if the following criteria are met:
- The person is incapable of consenting to care;
- The person is categorically refusing the proposed care plan;
- The legality of the care plan, notably considering:
- The proportionality of the care plan (whether the benefits outweigh the risks);
- Whether the proposed care plan is appropriate in the circumstances;
- Whether the person’s wishes are taken into account as much as possible;
Framework for applying the Act respecting the protection of persons whose mental state presents a danger to themselves or to others – Confinement in a health and social services institution
This document, available in French only, is intended primarily for administrators and staff of health and social services institutions tasked with applying the provisions of the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (hereinafter “the Act”). It is also for personnel at other government networks designated in the Act, including those tasked with ensuring public safety and the administration of justice.
It aims to ensure a clear, common vision of the exceptional recourse that is confinement in a health and social services institution—a vision that translates to practices compliant with the law and respectful of human rights. To do so, it reiterates certain aspects of people’s rights under confinement, specifies the responsibilities of institution administrators and staff in such cases, presents revised clinical and administrative practices adapted to the exceptional situation of confinement, and proposes criteria for identifying and assessing danger associated with mental state.
Sources: Civil Code of Québec, CQLR c. CCQ-1991, Act respecting the protection of persons whose mental state presents a danger to themselves or to others, CQLR c. P-38.001.