Law 2

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
• 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)
  1. Person lacks capacity to consent to proposed treatment
  2. Person categorically refusing treatment
  3. 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)
  1. Does the person understand the nature of the illness?
  2. Does the person understand the treatment's nature and purpose (and other options)?
  3. Does the person understand the benefits and risks of the treatment?
  4. Does the person understand the risks and consequences of not undergoing treatment?
  5. 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.