Authorized Confinement in Healthcare

Law 2 - Confinement, Privacy & Confidentiality, and Resources

• Course name: NUR1 - 424
• Course semester: Fall 2024
• Lecturer: Daria Kapnik

Plan

• 1. Authorization for Treatment:
  • 1.1 Recap of Court Orders under CCQ
  • 1.2 Treatment order
• 2. Confinement Law:
  • 2.1 General Principles
  • 2.2 Parameters
  • 2.3 Types of Confinement
  • 2.4 Preventative Confinement
  • 2.5 Provisional Confinement
  • 2.6 Authorized Confinement (Institutional)
    • 2.6.1 Motion for Authorized Confinement – Process
    • 2.6.2 Motion for Authorized Confinement – Duration
    • 2.6.3 Motion for Authorized Confinement – PSY content
    • 2.6.4 Motion for Authorized Confinement – Court order criteria
    • 2.6.5 Motion for Authorized Confinement – Renewal
    • 2.6.6 Motion for Authorized Confinement – End of Confinement
    • 2.6.7 Motion for Authorized Confinement – Longer Confinement
  • 2.7 Rights of the person under confinement
  • 2.8 Potential issues in confinement
• 3-4. Privacy, Confidentiality, and Resources:
  • 3. Privacy - Patient access and medical records
    • 3.1 General
    • 3.2 Deceased patients
    • 3.3 Privacy, confidentiality and care issues regarding minors
  • 4. Management of Limited Resources and Patient Rights
    • 4.1 Key Provisions
    • 4.2 Caselaw

Outline

• 1. Authorization for Treatment:

  • 1.1 Recap of Court Orders under CCQ
    • Art. 16 CCQ: person of full age incapable of giving consent categorically refuses care; no representative found for delegated consent or refuses without justification; minor over 14 refuses care (not emergencies or where life/integrity threatened)
    • Arts. 17/18 CCQ: care entails serious risk to minor's health and may cause grave and permanent effects
  • 1.2 Treatment order
    • WHO?: health establishment has burden of proof
    • WHAT?: patient lacks capacity to consent; patient categorically refuses treatment; proposed treatment is in patient's best interest
    • HOW?: expert reports, testimonial evidence (psychiatrist & residents)
      • Nova Scotia criteria: understanding of illness, nature & purpose of treatment (options), benefits & risks of treatment & non-treatment, is comprehension affected by illness?
    • WHY?: to introduce/enforce treatment

• 2. Confinement in an Institution:

  • 2.1 General Principles

    • Confinement is exceptional measure, contrary to integrity and inviolability. Person must represent serious and immediate danger to self or others.
    • Legislation includes Quebec Civil Code + Code of Civil Procedure + Act respecting the Protection of persons

  • 2.3 Types of Confinement

    • 1. Voluntary Confinement (patient consents)
    • 2. Forced Confinement:
      • a. Preventive (in specialized institution)
      • b. Provisional
      • c. Authorized (requires motion)

  • 2.4 Preventative Confinement

    • Grave and immediate danger to self/others
    • Physician order, not court order; possible peace officer assistance.
    • 72-hour period, if danger persists, court order needed
    • Section 8 of Act P-38

  • 2.5 Provisional Confinement

    • Danger to self/others (grave or serious, not necessarily immediate)
    • Court order (motion) required if patient refuses evaluation
    • Police assistance may be authorized (or ordered)

  • 2.6 Authorized Confinement - Process

    • Physician must conclude confinement is not necessary—patient released.
    • Application for confinement must be presented to court within 48 hours.

  • 2.6 Authorized Confinement - Duration

    • Maximum of 30 days; if less is necessary specify timeframe; patient must be released once no longer considered a danger
    • Discretion for judges to adjust duration based on evidence

  • 2.6 Authorized Confinement - PSY content

    • Psychiatric examination report must deal with necessity of confinement if danger to self/others (due to mental state)
    • Must assess patient's ability to care for themselves and manage property, advisability of protective supervision.

  • 2.6 Authorized Confinement - Court order criteria

    • Court must conclude confinement is necessary.
    • Even necessary confinement may not be authorized by the court if there is no credible reason to believe the person is dangerous.

  • 2.6 Authorized Confinement - Renewal

    • At expiry of 30-day period, can extend to maximum 90 days.
    • Requires a new examination concluding confinement remains necessary.

  • 2.6.6 Motion for Confinement - End of Confinement

    • Confinement ends when justification is no longer present, or as the time limit specified expires, or upon court or administrative tribunal order

  • 2.6.7 Motion for Confinement - Longer Confinement

    • If confinement is for more than 21 days, periodic examinations to determine continued necessity
    • Examinations must be conducted every 21 days and every three months thereafter.

  • 2.7 Rights of the person under confinement -Comprehensive schedule of rights per P-38 -Right to receive application for confinement -Person's testimony is required unless unavailable or useless due to health reasons -Right to communicate. - Patients allowed to communicate with authorized outside persons. - Right to counsel

  • 2.8 Potential issues in confinement

    • Consent to care must still go through the Superior Court, they can keep the person, but can't treat them against their will.
    • Use restraints required per protocol only if ordered/emergency
    • AWOL: contact DPS office if requested.

3. Caselaw

• 3.1 Charles Le Moyne c. E.(F.) (CQ): 20-year-old male college student brought to hospital by police; family and friends said he wasn't a danger
• 3.2 CSSS Côte-de-Gaspé c. P(C): Bipolar patient, seeking to renew confinement; doctors felt patient remained dangerous. Confinement eventually denied, dangerousness must be present in short-to-medium term.
• 3.3 Hôpital Maisonneuve-Rosemont c. H.(M.): 33-year-old man refused medication; refusal was maintained by courts.
• 3.4 J.M. c. Hôpital Jean-Talon du (CIUSSS) du Nord-de-l'Île-de-Montréal, 2018 QCCA 378: The appeal was granted because patient was wrongfully held in confinement after 72 hours.

4. Privacy

• 4.1 General: Right of access to own records. Must be accurate, complete, unambiguous info. Medical professional may deny access if there's a significant likelihood of adverse effect on patient or third party.

• 4.2 Deceased patients: Heirs, legatees, and legal representatives of a deceased person are entitled to info in the record. Spouse, ascendants, or direct descendants can receive info, unless the deceased refused to grant access. People with parental authority have access for a minor (under 14) even if deceased.

5. Privacy, Confidentiality, and Care Issues Regarding Minors

• Parental access to a minor's health information is addressed.
• Access by other bodies requires statutory duties of disclosure and is handled by other bodies
• Details for when access can be refused by institution

6. Management of Limited Resources and Patient Rights

• 6.1 Key provisions(LSSSS): Addresses patient rights to continuity of care, service in English, and accompaniment, choice of physician in the context of available resources.
• 6.2 Cases Law:
  • 6.2.1 Jasmin c Cité de la santé de Laval: Hospitals can't refuse treatment based on residence if the care is available.
  • 6.2.2 Noël-Voizard c. CSSS Lasalle: Plaintiff broke wrist, had to wait excessively long in emergency room. Was deemed the medical staff did the best to handle the situation, with the resources available.
  • 6.2.3 J.O vs Hôpital Royal Victoria: Dialysis patient was extremely verbally abusive. Hospital was subsequently able to transfer care to another facility.

This quiz explores key concepts related to authorized confinement in institutional settings, focusing on patient rights, management of resources, and types of confinement. Test your knowledge on important aspects and requirements concerning confinement and confidentiality in healthcare.