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Questions and Answers
What is the burden of proof for a party seeking to have treatment authorized?
What is the burden of proof for a party seeking to have treatment authorized?
The health establishment has the burden of proof.
What must be proven on the balance of probabilities to have treatment authorized? (Select all that apply)
What must be proven on the balance of probabilities to have treatment authorized? (Select all that apply)
What are the Nova Scotia criteria used to establish inaptitude? (Select all that apply)
What are the Nova Scotia criteria used to establish inaptitude? (Select all that apply)
Confinement in an institution is considered an exceptional measure.
Confinement in an institution is considered an exceptional measure.
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What are the two main types of forced confinement? (Select all that apply)
What are the two main types of forced confinement? (Select all that apply)
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Confinement in an institution is considered a violation of a person's right to privacy.
Confinement in an institution is considered a violation of a person's right to privacy.
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A danger must be grave and immediate to justify Preventive Confinement.
A danger must be grave and immediate to justify Preventive Confinement.
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What must be done if a physician concludes a danger is still present after Preventive Confinement and the patient refuses to be assessed?
What must be done if a physician concludes a danger is still present after Preventive Confinement and the patient refuses to be assessed?
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What does the "Section 8 of Act P-38" stipulate about the role of a peace officer?
What does the "Section 8 of Act P-38" stipulate about the role of a peace officer?
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A psychiatric examination must be conducted if a person is placed under Preventive Confinement under the "Section 8 of Act P-38".
A psychiatric examination must be conducted if a person is placed under Preventive Confinement under the "Section 8 of Act P-38".
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What is the purpose of "Provisional Confinement" under the "Section 8 of Act P-38"?
What is the purpose of "Provisional Confinement" under the "Section 8 of Act P-38"?
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A court order is required for Provisional Confinement but not for Preventative Confinement.
A court order is required for Provisional Confinement but not for Preventative Confinement.
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How long is a person allowed to be confined under a court order for Provisional Confinement?
How long is a person allowed to be confined under a court order for Provisional Confinement?
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If a person was initially under Preventative Confinement and refused examination, within how many hours of the court order must a second PSY be completed?
If a person was initially under Preventative Confinement and refused examination, within how many hours of the court order must a second PSY be completed?
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The two PSYs required for Authorized Confinement must be performed by the same psychiatrist.
The two PSYs required for Authorized Confinement must be performed by the same psychiatrist.
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What is the maximum duration of confinement allowed under a court order for Authorized Confinement?
What is the maximum duration of confinement allowed under a court order for Authorized Confinement?
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What is the maximum duration of confinement allowed for a renewed Authorized Confinement?
What is the maximum duration of confinement allowed for a renewed Authorized Confinement?
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What happens if one of the two physicians writing the PSYs reaches the conclusion that confinement is not necessary?
What happens if one of the two physicians writing the PSYs reaches the conclusion that confinement is not necessary?
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An application for confinement must be presented to court within 48 hours after the PSYs are completed.
An application for confinement must be presented to court within 48 hours after the PSYs are completed.
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If a person is deemed not dangerous, they are automatically released from confinement even if the initial confinement period hasn't elapsed.
If a person is deemed not dangerous, they are automatically released from confinement even if the initial confinement period hasn't elapsed.
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Under "Section 10 of Act P-38", when is a person under confinement subject to periodic examinations? (Select all that apply)
Under "Section 10 of Act P-38", when is a person under confinement subject to periodic examinations? (Select all that apply)
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A person under confinement is allowed to refuse a psychiatric examination if they are certain it will be prejudicial.
A person under confinement is allowed to refuse a psychiatric examination if they are certain it will be prejudicial.
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A person under confinement can communicate with individuals of their choice, as long as their physician approves.
A person under confinement can communicate with individuals of their choice, as long as their physician approves.
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Patient access to their medical records is unlimited.
Patient access to their medical records is unlimited.
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In the case of "McInerney v. MacDonald", the Supreme Court confirmed that a patient can access the entirety of their medical file.
In the case of "McInerney v. MacDonald", the Supreme Court confirmed that a patient can access the entirety of their medical file.
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A spouse of a deceased patient is allowed to access the cause of death information in their medical record.
A spouse of a deceased patient is allowed to access the cause of death information in their medical record.
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The holder of parental authority has unlimited access to a minor's medical record according to the "Section 23 of the LSSSS".
The holder of parental authority has unlimited access to a minor's medical record according to the "Section 23 of the LSSSS".
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The "LSSSS" outlines exceptions to parental authority access to a minor's medical record. When is access refused? (Select all that apply)
The "LSSSS" outlines exceptions to parental authority access to a minor's medical record. When is access refused? (Select all that apply)
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The "Commission des droits de la personne et des droits de la jeunesse" can investigate any situation where they believe a child's rights have been encroached upon.
The "Commission des droits de la personne et des droits de la jeunesse" can investigate any situation where they believe a child's rights have been encroached upon.
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The "Director of Youth Protection" can enter any facility to examine a minor's medical record.
The "Director of Youth Protection" can enter any facility to examine a minor's medical record.
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What are some examples of when "security and development" of a child may be in danger under the "Youth Protection Act"? (Select all that apply)
What are some examples of when "security and development" of a child may be in danger under the "Youth Protection Act"? (Select all that apply)
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A minor under 14 years of age can give consent to medical care.
A minor under 14 years of age can give consent to medical care.
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Minors over 14 years of age can give consent alone to care required by the state of health, requiring a court order only if they refuse the care.
Minors over 14 years of age can give consent alone to care required by the state of health, requiring a court order only if they refuse the care.
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Limited budgets and an aging population can contribute to tension between the demands on the healthcare system and its ability to meet those demands.
Limited budgets and an aging population can contribute to tension between the demands on the healthcare system and its ability to meet those demands.
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The "LSSSS" seeks to mediate between the realities of limited healthcare resources and patient needs.
The "LSSSS" seeks to mediate between the realities of limited healthcare resources and patient needs.
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Patients have the right to choose a healthcare professional or institution, regardless of the availability of resources.
Patients have the right to choose a healthcare professional or institution, regardless of the availability of resources.
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A hospital can refuse to serve a patient based solely on their residence.
A hospital can refuse to serve a patient based solely on their residence.
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A hospital can refuse to provide certain types of care if they are not available as a general rule in the hospital.
A hospital can refuse to provide certain types of care if they are not available as a general rule in the hospital.
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The hospital in the case study of "Jasmin c Cité de la santé de Laval" was seeking to restrict access to obstetrical and diagnostic services to residents of certain municipalities due to overwhelming demand.
The hospital in the case study of "Jasmin c Cité de la santé de Laval" was seeking to restrict access to obstetrical and diagnostic services to residents of certain municipalities due to overwhelming demand.
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The hospital in the case study of "Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine" was found liable for the patient's long wait time in the emergency room.
The hospital in the case study of "Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine" was found liable for the patient's long wait time in the emergency room.
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The patient in the case study of "J.O. vs. Hôpital Royal Victoria" was known for his extremely verbally abusive behavior towards hospital staff.
The patient in the case study of "J.O. vs. Hôpital Royal Victoria" was known for his extremely verbally abusive behavior towards hospital staff.
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In the case study of "J.O. vs. Hôpital Royal Victoria", the court upheld the hospital's decision to refuse to put the patient on the kidney transplant waiting list due to his behavior.
In the case study of "J.O. vs. Hôpital Royal Victoria", the court upheld the hospital's decision to refuse to put the patient on the kidney transplant waiting list due to his behavior.
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The court in the case study of "J.O. vs. Hôpital Royal Victoria" determined that the hospital was legally obligated to transfer the patient to another facility for dialysis care, despite his behavior.
The court in the case study of "J.O. vs. Hôpital Royal Victoria" determined that the hospital was legally obligated to transfer the patient to another facility for dialysis care, despite his behavior.
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Study Notes
Law 2 - Confinement, Privacy & Confidentiality, and Resources
- Course: NUR1 424 - Fall 2024
- Lecturer: Daria Kapnik
Plan
- Authorization for Treatment
- Recap of Court Orders under CCQ
- Treatment order
- Confinement Law
- General Principles
- Parameters
- Types of Confinement
- Preventative Confinement
- Provisional Confinement
- Authorized Confinement (Institutional)
- Motion for Authorized Confinement - Process
- Motion for Authorized Confinement - Duration
- Motion for Authorized Confinement - PSY content
- Motion for Authorized Confinement - Court order criteria
- Motion for Authorized Confinement - Renewal
- Motion for Authorized Confinement - End of Confinement
- Motion for Authorized Confinement - Longer Confinement
- Rights of the person under confinement
- Potential issues in confinement
- Privacy, Confidentiality, and Resources
- Patient access and medical records
- General
- Deceased patients
- Privacy, confidentiality and care regarding minors
- Patient access and medical records
- Management of Limited Resources and Patient Rights
- Key Provisions
- Caselaw
- Charles Le Moyne c. E.(F.) (CQ)
- CSSS Côte-de-Gaspé c.P(C) - EYB 2013-227952 (CQ)
- Hôpital Maisonneuve-Rosemont c. H. (M.) - EYB 2013-219305
- Hôpital Jean-Talon du (CIUSSS) du Nord-de-l'Île-de-Montréal, 2018
- Jasmin c Cité de la santé de Laval (AZ-90021046 (CS))
- Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine (2007 QCCQ 5118)
- J.O vs. Hôpital Royal Victoria (2011 QCCS 5532)
Outline
- Authorization for Treatment
- Recap of Court Orders under CCQ
- Treatment Order
- Confinement in an Institution
- General Principles
- Parameters
- Types of Confinement
- Preventative Confinement
- Provisional Confinement
- Authorized Confinement
- Rights of the person under confinement
- Potential issues in confinement
1. Authorization for Treatment 1.1 Recap of Court Orders under CCQ
- Article 16 CCQ: Person of full age incapable of giving consent categorically refuses to receive care; no representative found for delegated consent or refused without justification; Minor over 14 refuses care (not in emergency or where life/integrity threatened)
- Articles 17/18 CCQ: Care entails serious risk for minor's health (even if over 14)
1.2 Treatment Order
- WHO: Party seeking authorization (usually, the healthcare establishment) bears the burden of proof.
- WHAT: Must prove (balance of probabilities)
- Person lacks capacity to consent to proposed treatment
- Person categorically refusing treatment
- Proposed treatment is in patient's best interest
- HOW: Motion + expert reports + testimonial evidence (e.g., psychiatrist & residents)
- WHY: To introduce/force treatment
To Establish Inaptitude
- Nova Scotia criteria (proposed by the Canadian Psychiatric Association and reflected in Institut Philippe-Pinel de Montréal c. A.G. 2012)
- Does the person understand the nature of the illness?
- Does the person understand the treatment's nature and purpose (and other options)?
- Does the person understand the benefits and risks of the treatment?
- Does the person understand the risks and consequences of not undergoing treatment?
- Is the person's ability to understand affected by their illness?
- Exercise assessing ability to understand/appreciate information and how it applies, reason, express choice.
2. Confinement in an Institution
2.1 General Principles
- Confinement in an institution is exceptional measure ~ contrary to right to integrity/inviolability
- Person must be in a state that represent a serious/immediate danger to themselves or others
- Pertinent legislation: Civil Code of Québec + Code of Civil Procedure (P-38.001)
2.3 Types of Confinement
- Voluntary confinement (patient consents and has capacity to do so)
- Forced confinement:
- Preventative
- Provisional
- Authorized
2.4 Preventative Confinement
- Person must be a danger to himself/others with grave and immediate danger
- Court order not required (ordered by physician)
- Possible assistance from peace officer
- Article 27 CCQ (par. 2) - preventative confinement if grave and immediate danger
2.5 Provisional Confinement
- Danger to self/others (grave/serious danger, potentially foreseeable in future)
- Court order (motion) required from physician/interested party
- Used if patient refuses evaluation for dangerousness
- May include police assistance
- Applies outside hospital setting
2.6 Authorized Confinement Process (Institutional)
- If either physician concludes confinement unnecessary, release the person (30 CCQ contrary)
- Application presented to court within 48 hours (Art. 28 CCQ)
- Confinement permissible for up to 48 hours after both PSYs
2.6.1 Motion for Authorized Confinement - Process
- If one physician concludes no need for confinement, release the person
- Application filed with court within 48 hours (Art. 28 CCQ).
2.6.2 Motion for Authorized Confinement – Duration
- Maximum 30 days; alternative timeframe possible
- Release when no longer considered a danger to self/others
2.6.3 Motion for Authorized Confinement – PSY content
- Psychiatric examination report addressing necessity of confinement due to danger to self/others
- Ability to care for oneself/administer property
- Advisability of protective supervision
2.6.4 Motion for Authorized Confinement – Court order criteria
- Confinement authorized only when both psychiatric reports deem confinement necessary.
- Court must have serious reasons to believe in person's dangerousness, regardless of evidence contradicting.
2.6.5 Motion for Authorized Confinement – Renewal
- 30-day period may be extended up to 90 additional days
- Psychiatrist must conclude confinement still necessary
2.6.6 Motion for Confinement – End of Confinement
- Ends with no formality when attending physician certifies no longer justified or expiry of time limit
- Court decision/Administrative Tribunal of Québec action
- Release if confinement no longer justified.
2.6.7 Motion for Confinement – Longer Confinement
- Court can set duration exceeding 21 days; periodic assessment for necessary confinement
- Report due at 21 days from decision and every 3 months thereafter.
2.7 Rights of the person under confinement
- Schedule of P-38: Comprehensive rights outline (copied to last slide)
- Person must be served application for confinement.
- Exception = clinical testimony if person cannot be found/has fled/their health prevents it.
- Allowed communication with outside parties unless valid medical reason
2.8 Potential issues in confinement
- Consent to care during confinement requires Superior Court approval
- Restraints only with protocol/emergency order
- Communicate with DPS for AWOL
3. Caselaw
- Charles Le Moyne c. E.(F.) (CQ): 20-year-old male college student placed in hospital due to neighbours' complaints; no prior history of mental illness, judged not to be a danger himself/others.
- CSSS Côte-de-Gaspé c. P(C.) EYB 2013-227952(CQ): Patient with bipolar disorder; found that person's prior behaviour doesn't justify continued confinement, danger must be present in short/medium term
3.1, 3.2, 3.3, 3.4 Caselaw
- Facts and details of specific cases (see specific case law sections for details regarding cases)
- Decisions and Rationale of case law
4. Privacy - Patient Access and Medical Records
- Patient's right to access own medical records
- Right to correct inaccurate, incomplete or ambiguous information
- Medical professional may deny access if substantial adverse effect on patient or harm to a third party
4.1 General (cont'd)
- AHSSS/LSSSS, Article 17: Every user (14 years or older) has access right; institution can temporarily deny if relevant to health, specify the reasoning and timeframe.
4.2 Deceased Patients
- Heirs, legatees, legal representatives entitled to information unless deceased refused access in writing
- Spouse, ascendants, direct descendants entitled to information unless deceased refuses access in writing
- Parental authority figure (under 14) has access right even if user is deceased; access doesn't extend to psychosocial information.
- Relatives by blood are entitled to information concerning verified existence of familial genetic/hereditary disease
5. Privacy, Confidentiality, and Care Issues Regarding Minors
- Parental access to a minor's health information
- Access by other bodies to a minor's health information
- Statutory duties of disclosure
- Other bodies refusing access, when parental authority is determined to be in the minor's best interest
5.1, 22, 23 sections of LSSSS.
- Holder of parental authority entitled to access if minor
- Tutor/curator/mandatary may access information for a minor to the extent necessary for the exercising of their power
Exceptions to 21 LSSSS
- Refusal of access if the minor is deemed to be in danger based on Youth Protection Act
6. Management of Limited Resources & Patient Rights
- Limited health sector budgets and an aging population creates a need for managing resources
- The Act Respecting Health Services and Social Services (LSSSS) mediates between demands on the health care system to meet realistic resource needs
6.1 Rights and Obligations in LSSSS
6.2 What Happens When Rights Conflict
- Jasmin c Cité de la santé de Laval (AZ-90021046 (CS)): Hospital's regulations restricting OB/GYN services to certain municipalities were ruled discriminatory, contrary to LSSSS.
- Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine (2007 QCCQ 5118): Plaintiff's case dismissed; court considered wait times, the limited resources available, and that the hospital had done its best.
- J.O. vs. Hôpital Royal Victoria (2011 QCCS 5532): Patient had to be transferred- behaviour made it impossible to continue dialysis care.
6.1, 2.1, 2.2, 2.3 Details
- Specific facts, regulations, court decisions in each case (see specific case law sections for details regarding each of the various cases).
6. I Key provisions AHSSS and LSSS
- General rights to choose, with continuity and safety of services granted. Also right to health services with a choice of institution/professional as provided in other relevant sections. Further, persons can take professional and health services according to the structure and limitations of the institution.
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