In a decision rendered on September 1, 20221, the Court of Appeal of Quebec stated that a judge seized of an application for authorization for treatment must ensure that the patient in question can be heard and assert their rights. The Court also took the opportunity to analyze the indefinite hospitalization clauses and the re-hospitalization clauses made necessary following a subsequent deterioration in a patient’s health. Legal representation of patients The Court’s reasoning was based on the following elements: Article 90 C.C.P. allows the judge to appoint a lawyer ex officio to safeguard the rights and interests of an incapable person; A hearing on an application for authorization for treatment should not be held without the person who is the subject of the application being represented by a lawyer; The principle that such a person should be represented by a lawyer may have certain exceptions, but it can only be discarded after steps have been taken to offer the person involved the presence of a lawyer, following a close consideration of the stakes and circumstances of the case and of a decision expressly reasoned by the judge. As such, when an application for authorization for treatment is presented, the following analytical framework must be applied from the start of the hearing: The judge must assess whether the person concerned is incapable. To meet this first requirement, preliminary evidence of “likelihood of incapacity” must be provided2; The appointment of a lawyer must be necessary to safeguard the rights and interests of the person3 When these conditions are met, the judge must suspend the proceedings under article 160 C.C.P. for the period necessary for a lawyer to be appointed to represent the patient. The court may also issue a safeguard order. If the judge is not convinced that the second condition is met, they can withhold their decision and hear the evidence. Once the evidence has been adduced, they can decide to issue a safeguard order if the steps are met or decide on the merits of the application if this second criterion has not been met. In the latter case, they must expressly state the reasons which led them to this conclusion. The Court pointed out that prior to a hearing, a healthcare establishment must make sure that everything is done to ensure that the person concerned has the possibility of being represented by a lawyer. The bench is also of the view that the presence of an available lawyer at treatment hearings would be an ideal practice in order to allow the judge to appoint them ex officio. Hospitalization and re-hospitalization clauses In this case, the patient challenged the finding that they must remain hospitalized from the delivery of the judgment authorizing their treatment until their medical discharge. The court pointed out that in the absence of appropriate evidence, it is not up to the Court to usurp the role of the medical profession by setting a term for an ongoing hospitalization. The court maintained the order’s conclusion that the patient’s hospitalization should continue “until the attending physician deems [the patient’s] condition has sufficiently stabilized to allow them to be discharged safely.” Finally, the patient also challenged the conclusion of the judgment relating to their re-hospitalization in the event of non-collaboration with treatment. The Court of Appeal clarified that a clause of this nature should not be a sanction for non-compliance with the treatment plan. A re-hospitalization clause for non-collaboration depends on the circumstances of each case and must be substantiated by appropriate evidence. However, the court does not rule out that this eventuality may justify the re-hospitalization of a patient if evidence to this effect is presented. The members of Lavery’s Administrative Law team regularly represent healthcare establishments and remain available to advise you and answer your questions in connection with this new development in jurisprudence. A.N. c. Centre intégré universitaire de santé et de services sociaux du Nord-de-l’Île-de-Montréal, 2022 QCCA 1167 Para. 33 et seq. Para. 49 et seq.
Catherine Pariseault Senior Associate
- Québec, 2012
Catherine Pariseault practices in the Administrative and Health Law Group. Her practice focuses primarily on professional and disciplinary law, human rights, and forensic psychiatry.
She advises and represents both the offices of trustees of professional orders and professionals in disciplinary or investigative proceedings. Ms. Pariseault regularly argues cases before administrative tribunals and superior courts.
She also acts as legal counsel to health care institutions, providing advice and opinions on various legal and regulatory issues.
Ms. Pariseault assists and advises her clients in investigative proceedings conducted by the Commission des droits de la personne et des droits de la jeunesse further to complaints filed by individuals who claim to have been victims of discrimination or of a breach of one of the provisions of the Charter of Human Rights and Freedoms.
- Graduate Diploma in Health Law and Policy, 2019
- Master 2 in management of health institutions, Université de Montpellier I, 2013
- LL.B., Université de Montréal, 2011
Boards and Professional Affiliations
- Fellow of the Canadian Institutes of Health Research (CIHR), legal training program, health ethics and policies
- Member of the Young Bar Association of Montréal
The Supreme Court recently considered, in the Law Society of Saskatchewan v. Abrametz1 decision, the applicable test to determine whether a delay is inordinate and constitutes an abuse of process that could lead to a stay of administrative proceedings. In this case, a Saskatchewan lawyer requested that the disciplinary proceedings against him be terminated due to a delay that he claimed was inordinate and constituted an abuse of process. The Law Society of Saskatchewan’s inquiry had begun six years before his application was filed. After analysis, the Supreme Court concluded that there was no abuse of process. In its study of the question of delay, the Supreme Court recalled that the analytical framework for determining whether a delay constitutes an abuse of process remains that which was developed by the Supreme Court in the Blencoe2 decision rendered twenty years earlier. In this way, the majority rejected the idea of bringing a test akin to the Jordan3 decision regarding inordinate delay into the context of administrative proceedings. Here is the analysis grid for determining whether a delay constitutes an abuse of process: The delay must be inordinate. Contextual factors must be considered, such as the nature and purpose of the proceedings, the length and causes of the delay and the complexity of the facts and issues in the case. Moreover, if the party itself caused or waived the delay, then it cannot amount to an abuse of process. The delay must have caused significant prejudice directly. It could, for example, be psychological harm, a damaged reputation, sustained media attention or loss of business. If these first two conditions are met, the delay in question constitutes an abuse of process when it is manifestly unfair to a party or otherwise brings the administration of justice into disrepute. Thus, once the abuse of process has been established, several remedies are possible depending on the seriousness of the harm suffered. These can range, in particular, from the reduction of the sanction and the ruling against the organization at fault to pay all costs to the stay of the proceedings. The members of Lavery’s Administrative Law team regularly represent various professional orders and remain available to advise you and answer your questions in connection with this new development in jurisprudence. 2022 SCC 29, July 8, 2022. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44. R v. Jordan, 2016 SCC 27.
In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the Court must allow the parties to remedy deficiencies in the evidence rather than dismissing the application. The Court of Appeal based its reasoning on the following articles: Article 268 of the C.C.P.2 allows a judge to draw a lawyer’s attention to any deficiency in the proof of procedure and authorize the parties to remedy it, especially when the judge notes that the insufficient evidence concerns an essential element and could affect the outcome of the dispute. Article 50 of the C.C.P. gives judges the power, even on their own initiative, to require the attendance of witnesses or the presentation of evidence. Given the importance for a judge to make an informed decision, both with respect to a patient’s personal integrity and in assessing the danger they may pose to themselves or to others, the Court of Appeal considers that a judge has an obligation to exercise their discretionary power and require the attendance of one or even both psychiatrists who signed the reports filed in support of an application. In 2009, the Court had previously concluded that a judge in charge of ruling on an application for confinement in an institution is at liberty to [translation] “report, at the time of the hearing, that the references indicated in two sections of the form used by physicians to prepare a psychiatric examination report for an order of confinement in an institution—one concerning the reasons and facts upon which the physician has based their opinion and the other the assessment of the seriousness of the condition and its likely consequences for the patient and for others—appear to them to be insufficient.”3 It appears that this issue has been taken a step further, as the Court has concluded that the discretion granted by articles 50 and 268 of the C.C.P. must be exercised in order to give the health institution applying for confinement the opportunity to complete its evidence. Centre intégré de santé et de services sociaux de l’Outaouais v. J.L., 2022 QCCA 792 Code of Civil Procedure, CQLR c. C-25.01. (C.C.P.) Centre de santé et de services sociaux Pierre Boucher v. A.G., 2009 QCCA 2395, para. 38.
In a decision rendered on March 13, 20181, the Court of Appeal reiterated that caution is in order when making an application for confinement. The Court also took the opportunity to review the topic of confinement orders and the supervision and safety requirements that healthcare establishments have towards their users. The Court of Appeal’s reasoning is based on the following elements: where two doctors conclude on the need for confinement in an establishment, the user cannot be kept without his or her consent or the Court’s authorization for more than 48 hours; the hospital’s decision to make an application for confinement in an establishment does not constitute a simple blind or purely mechanical application of the conclusions presented in the psychiatric examinations conducted by the psychiatrists. It is the responsibility of the healthcare establishment in question to verify whether the legal obligations have been met prior to initiating the legal proceedings. Accordingly, the establishment must act with caution and transparency throughout this type of process, since the basic rights of the user subject to an application for confinement are at stake; the Civil Code of Québec, the Code of Civil Procedure and the Act Respecting the Protection of Persons Whose Mental State Presents a Danger to Themselves or to Others2impose very specific and strict provisions that must be complied with in connection with an application for confinement in an establishment; the establishment may likely be held liable if it neglects to verify and control compliance with the requisite conditions for confinement; failure to verify whether the two psychiatric examinations justifying the application for confinement comply with the legal requirements may also potentially engage the establishment’s civil liability; any incident or accident must be declared in good and due form in accordance with the Act respecting health services and social services3 to determine whether the establishment fulfilled its supervision and safety obligations as regards its confined users. It is therefore important to remember that healthcare establishments are obliged to demonstrate caution, transparency and verification when making an application for confinement and preparing such an application. G.D. v. Sir Mortimer B. Davis Jewish General Hospital, 2018 QCCA 379. CQLR, c. P-38.001. CQLR, c. S-4.2, Sec. 8 par.2 and 233.1.