March 13, 2018
Bich, Savard, Mainville
Appeal from a judgment of the Court of Quebec allowing an application for a confinement order. Allowed.
The appellant was brought to the respondent hospital on August 17, 2017, after having uttered death threats against a stranger in a park. He was placed in preventive confinement. The next day, he underwent a psychiatric assessment, to which the hospital claims he consented. In his report, the psychiatrist concluded that the appellant was suffering from paranoid psychosis and the beginning of schizophrenia. In view of the appellant’s dangerousness, the psychiatrist recommended that he be placed under confinement for 21 days. On August 21, 2017, another psychiatrist met with the appellant for the purpose of a second psychiatric examination, to which the appellant did not consent. This psychiatrist nevertheless concluded that the appellant was suffering from a psychotic disorder and that he was dangerous. He also recommended that the appellant be placed under confinement for 21 days. The hospital served an application for a confinement order on the appellant in the evening of August 22, 2017, and the Court of Quebec issued the order two days later. The appellant argued that the preventive confinement was unlawful as it extended beyond the term prescribed by s. 7 of the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (CQLR, c. P-38.001) and claimed that he did not consent to the second psychiatric examination, such that the report should be set aside, but the trial judge dismissed these arguments. She ordered his confinement for a period of 21 days.
The trial judge erred in finding that the appellant had consented to the second psychiatric examination, conducted on August 21, 2017. She seems to have confused consent to preventive confinement with consent to the psychiatric examination, which are different. The evidence on which she based her conclusion that the appellant consented to preventive confinement also requires consideration. Moreover, it was not open to the judge to find at the outset of the hearing that the appellant had consented to the psychiatric examination before hearing his testimony on the issue. In fact, the medical report expressly stated that he refused to cooperate with the examination. The judge should therefore have excluded the report from the August 21, 2017, psychiatric examination, to which the appellant did not consent. This would have prevented her from making the order because art. 30 of the Civil Code of Québec (C.C.Q.) requires two psychiatric reports. In view of his refusal to submit to the second examination, the hospital was required to seek an order under art. 27 C.C.Q. if the appellant was a danger to himself or to others. If necessary, the hospital could then have again applied to the court under art. 30 C.C.Q. to obtain a confinement order. In addition, the psychiatric reports do not sufficiently explain the conclusion that the appellant is dangerous. Finally, the appellant was kept under preventive confinement beyond the expiration of the time period set out in s. 7 of the Act. If required by his mental state, the hospital should have obtained an extension from the court under the third paragraph of s. 7 of the Act before the expiry of the 72-hour period. Failing that, the appellant should have been released at the end of the period of preventive confinement, at the latest on August 21, 2017.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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