Administering care without consent in F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria)

Posted By Jennyfer Pelletier

On January 4th 2015, the appellant was hospitalized due to convulsions caused by alcohol withdrawal. The appellant, 49, is a married father who has been struggling with an alcohol consumption problem for many years. During his hospitalization, the Court of Quebec authorized a motion for confinement in an institution to last until May 21st 2015.

At the end of January, the appellant’s situation improved and, while he remained in the hospital, he left the emergency unit. On February 10th 2015, Dr. Tourian, the appellant’s psychiatrist, stated in a report that the patient required housing in a care unit that would be equipped to manage his condition and potential deterioration. The appellant, however, manifested a desire to go home. Dr. Tourian believed the appellant was inapt and incapable of providing consent. Consequently, a month later, he instituted a motion at the Superior Court seeking an authorization for care that would authorize the hospital and the appellant’s psychiatrists, or any delegated physician or nurse, to administer medications and place the appellant in a care unit.

Superior Court

On March 18th 2015, the Honourable William Fraiberg found that the appellant was incapable of providing his consent pursuant to article 16 of the Civil Code of Quebec (CCQ). He allowed the respondents, the appellant’s psychiatrists as well as other doctors and nurses, to put in place a treatment program that would last 36 months.

Court of Appeal

The appellant appealed on three grounds: 1) the trial judge erred in refusing to postpone the hearing, 2) the trial judge appeared partial and 3) the trial judge erred in granting the authorization as the requirements set out in articles 16 and 12 of the CCQ were not satisfied. On July 6th 2015, the appellant was successful on all three grounds and the Court of Appeal ordered a new trial.

This summary will focus on the third ground of appeal as it relates to substantive health law. This ground of appeal illustrated the court’s interpretive framework when dealing with a request for authorization of care without consent. The Court of Appeal held that a motion for authorization to administer care is examined while keeping in mind the following:

• Every person is inviolable and is entitled to the integrity of his person (article 10 CCQ)
• No person may be made to undergo care except with his consent (article 11 CCQ)
• No one can force a person capable of giving consent to receive care, even if that care is in their best interest and its refusal may lead to their death
• Where a person is capable of providing consent, no one can intervene in their choice of treatment
• The use of article 16 requires a judge to determine whether he or she is in the presence of a person who is incapable of giving consent and is refusing treatment

The Court of Appeal then elaborated on a two-step test to determine if the requirements of articles 16 and 12 of the CCQ are satisfied. The first step requires determining whether the patient is competent pursuant to article 16 of the CCQ. There is no presumption of inaptitude to consent simply because someone is subject to psychological or psychiatric treatments. To conclude that a patient is incompetent, a judge must find that the patient is (1) inapt to consent and (2) is categorically refusing treatment.

(1) To determine whether a person is inapt to consent, the following questions should be asked:

• Does the person understand the nature of their condition?
• Do they understand the goal of treatment?
• Do they understand the risks of treatment, as well as the risks of not following the treatment?
• Is their capacity to understand affected by their condition?

(2) To determine that someone is categorically refusing treatment:

• • There must be proof that the person is refusing the treatment for which the authorization is sought
  • If a treatment has not been offered yet, there cannot be a categorical refusal

If one of these two conditions is not met, the judge must reject the request.

If both conditions in the first step are met, the judge proceeds to the second step. Pursuant to article 12 of the CCQ, the judge must ask the following questions:

• Is the treatment required, and if so, is it sufficiently described?
• Do the benefits outweigh the negative consequences?
• How long should the authorization be granted for?

Whether treatment is required must be determined in the sole interest of the patient while taking into account, as far as possible, any wishes they may have expressed.

In the present case, the Court of Appeal held that, even if the trial judge concluded that the appellant was inapt, he could not find that the appellant is categorically refusing treatment as it was revealed, through Dr. Tourian’s testimony, that the appellant has been taking the prescribed medication. Dr. Tourian testified that anti-psychotics were not required for the moment, but could be in the future. However, the court referred to recent jurisprudence stating that it is not in the tribunal’s power to act in a preventive manner. Hence, the analysis attempts to protect patients’ autonomy by providing a rigid framework and clearly defined parameters.