Class 5- Nursing and the Law (Confinement)

Question 1

In order to get a treatment order to authorize treatment, the party seeks must prove on the balance of probabilities two things:

Answer 1

Person does not have capacity to consent to proposed treatment;
Proposed treatment is in the patient’s best interest

Question 2

Who’s consent (2) is required in order to confine someone in a health institution for a psych assessment or following a psych assessment ?

Answer 2

“No one may be confined in a health or social services institution for a psychiatric assessment or following a psychiatric assessment concluding that confinement is necessary, without the person’s consent OR without authorization by law or the court.” (CCQ 26 par 1)

Question 3

3 Types of Forced Confinement

Answer 3

Preventive
Provisional
Authorized

Question 4

X and X are PRELIMINARY types of confinement, these steps usually lead to Motion for Authorized confinement

Answer 4

Preventive
Provisional

Question 5

Provisional Confinement

Answer 5

Person must be a danger to himself or to others (Grave or serious danger, which is not necessarily immediate, however the risk of that danger manifesting itself is high (probable or at least, clearly foreseeable in not too distant future)

Court order is required on the request of a a physician or an interested person

Obtained if patient refuses to be evaluated for the purposes of further evaluating his or her dangerousness

Usually part of the order will have conclusions in which police assistance is authorized or even ordered.

Question 6

Preventive confirment

Answer 6

Person must be a danger to himself/others

Danger* must be grave and immediate

Court order not required (ordered by physician)

Possible to get assistance from peace officer

Ex: domestic situation, someone on the street, suicidal ideations → need to scoop them up right now

Question 7

What is considered ‘danger’ for confinment? (2 criteria)

Answer 7

Grave or important danger must be detailed in a way that is 1) specific or. personalized and 2) precise, without just a generic statement, thus

A doubt as to the dangerousness of a patient does not constitute real danger;

The dangerousness of a patient must be such that it is justified to maintain his confinement. The fact that the patient may become dangerous again once he or she leaves the hospital is not sufficient to constitute danger.

Question 8

If the danger is grave and immediate, the person may be placed under X confinement, without the authorization of the court, as provided for in the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (chapter P-38.001).

Answer 8

preventative

Question 9

Preventative Confinement:
In the event that a physician concludes that the criterion of danger is still present and the person concerned refuses to be assessed, the authorization of the Court to proceed with a PSY must be obtained before X

Answer 9

the expiration of the 72 hour period.
→ ideally, the notification & filing of a motion to allow for psychiatric examination done w/in 24H)

Question 10

what is the purpose of obtaining a court order in preventative confinment before the 72 hour period expiration?

Answer 10

The purpose is to obtain a court order extending the “preventive confinement” to a “provisional confinement” for the duration of the psychiatric assessment.

Question 11

A peace officer may, without the authorization of the court, take a person against his will to an institution under which 2 conditions?

Answer 11

(1) At the request of a member of a crisis intervention unit who considers that the mental state of the person presents a grave and immediate danger to himself or to others;

(2) at the request of the person having parental authority, the tutor to a minor or any of the persons mentioned in article 15 of the Civil Code, where no member of a crisis intervention unit is available in due time to assess the situation. In such a case, the peace officer must have good reason to believe that the mental state of the person concerned presents a grave and immediate danger to himself or to others

• A unit designed to take action in crisis situations pursuant to the mental health service organization plans provided for by the legislation respecting health services and social services (LSSSS).
• 👉🏿People don’t necessarily go to hospital of their own free will – this is the way to allow police officers to provide family members or other designated persons

Question 12

Preventitve Confinement:
In the event that the person accepts to be examined, this examination must be carried out within XX after he has been taken in charge by the institution. (CCQ 28 par 1)

Answer 12

24 hours

Question 13

For use in situations where person is not in a hospital, but concerned persons feel that they represent danger to themselves or to others (Section 8 of P-38)

Can apply to Court to force the psychiatric examination – Art. 28 CCQ

If Court believes that person presents an immediate danger to themselves or to others, will order their XX confinement and psychiatric evaluation (and other specific medical exams pertaining to their state e.g. blood test) **COVID is not a part of these tests, but it kind of is

Answer 13

Provisional Confinement

Question 14

when does the court ask for provisional confinement

Answer 14

Where the court has serious reasons to believe that a person is a danger to himself or to others owing to his mental state, it may, on the application of a physician or an interested person and notwithstanding the absence of consent, order that he be confined temporarily in a health or social services institution for a psychiatric assessment. The court may also, where appropriate, authorize any other medical examination that is necessary in the circumstances.

Question 15

describe certain technical characteristics of provisional confinment

Answer 15

When a person is under preventative confinement, a 1st PSY must be carried out within 24 hours of arrival at hospital. (CCQ 28 par 1)

(CCQ 28 par 2) After this first examination, a 2nd PSY must be completed:
Within 96 hours of arrival at hospital (following court order)
– OR –
If person was initially under preventive confinement and refused examination, within 48 hours of court order*

Question 16

If one of the two physicians writing the PSYs reaches the conclusion that confinement is not necessary XX (30 CCQ à contrario)

Answer 16

the person must be released.

Question 17

If both physicians reach the conclusion that confinement is necessary, the person may be kept under confinement without his consent or the authorization of the court for no longer than X hours.

Answer 17

48 hours
This is 48 hours AFTER the completion of the two PSYs.

Question 18

Does a family member or close friend need to be involved in the confinment process?

Answer 18

Motion must be served on patient as well as “reasonable” member of patient’s family or close friend within that delay (called the “Mise-en-cause”)

If no such reasonable person exists, then the Public Curator is the Mise en cause.

Privacy concerns: PSYs not served on Mise-en-cause, UNLESS it is the Public Curator

Question 19

Motion for Authorized Confinement - Duration

Answer 19

Maximum of 30 days
If 30 days are not necessary – specify another timeframe.
Patients should be released as soon as they are deemed not dangerous to themselves or to others.
Judges have discretion to reduce duration based on their appreciation of evidence

Question 20

Motion for Authorized Confinement – PSY content
(what must the report deal with) (3)

Answer 20

A psychiatric examination report must deal in particular with the necessity of confining the person in an institution if he is a danger to himself or to others owing to his mental state, with the ability of the person who has undergone the examination to care for himself or to administer his property and, where applicable, with the advisability of instituting protective supervision of the person of full age.

Question 21

Motion for Authorized Confinement – Court order criteria

Answer 21

Confinement in an institution following a psychiatric assessment may only be authorized by the court if both psychiatric reports conclude that confinement is necessary.

Even if that is the case, the court may not authorize confinement unless the court itself has serious reasons to believe that the person is dangerous and that the person’s confinement is necessary, whatever evidence may be otherwise presented to the court and even in the absence of any contrary medical opinion.

• Judges have significant discretion in these matters.
  Can ask questions like where are they going to live? With whom?

Just because there’s no counter-expertise, doesn’t mean that Court will agree person requires confinement.

Reports therefore need to be detailed enough to give them insight as to the patient’s condition and dangerousness.
DIAGNOSIS OF MENTAL ILLNESS IS NOT SUFFICIENT

Question 22

Motion for Authorized Confinement – Renewal

Answer 22

At the expiry of the 30-day period, it is possible to extend the confinement for a maximum of 90 additional days.
Some Psych can make it 21 days. If the court is not sure, they usually place it at 2 weeks (the goal is not to keep someone indefinitely)

In order for the person to stay in confinement, a new examination must be carried out and the psychiatrist must conclude that the confinement is still necessary and indicate the duration (90 days or less).

Follows similar process as initial Motion

Two new PSYs should be done at the latest 48 hours before the expiry of the 30-day period.

It will be still possible to extend the confinement for periods of 90 days at a time… but perhaps Motions for Treatment or Placement should be considered.
A more stable solution should be found however, rather than keeping someone for 90 days

Question 23

Confinement ends, with no further formality in 4 situations:

Answer 23

(1) As soon as a certificate attesting that confinement is no longer justified has been issued by the attending physician;

(2) on the expiry of a time limit prescribed by section 10, if no psychiatric examination report has been produced by that time; (i.e., did not do the psych evals on time)

(3) on the expiry of the time fixed in the judgment ordering confinement; or

(4) upon a decision to that effect by the Administrative Tribunal of Québec or a court of justice.
👉🏿Warn the DPS upon discharge of patient

Question 24

Where the court has set a duration of confinement exceeding 21 days, the person under confinement must be examined periodically to ascertain whether continued confinement is necessary, and reports of such examinations must be produced at the following times:

Answer 24

21 days from the date of the decision made by the court pursuant to article 30 of the Civil Code; and

Every three months thereafter.

**The psychiatric examination reports shall be kept by the institution as part of the person’s record.

Question 25

Rights of the person under confinement

Answer 25

See the Schedule of P-38, it sets out patient’s rights under confinement comprehensively (I have copied it to the last slide of this class)

A person kept in confinement must be served the application for confinement, the exemption of service is exceptional; (exception = clinical)

The testimony of the person is required unless the latter cannot be found or has fled or if it would be clearly useless to require his testimony or owing to his state of health.

Patients allowed to communicate with outside persons (third parties) unless valid medical reason not to allow them to do so.

Patient’s right to counsel (at all stages)

Every person confined in and receiving care in a health or social services establishment shall be informed by the establishment of the program of care established for him and of any important change in the program or in his living conditions (Art. 31 CCQ).

Patients can also appeal their decisions:
Tribunal Administratif du Québec
- OR - Court of Appeal

If the person is under 14 years of age or is incapable of giving his consent, the information is given to the person who is authorized to give consent to care on his behalf (also Art. 31 CCQ).

Question 26

Potential issues in confinement (3)

Answer 26

Consent to care during confinement still needs to go through the Superior Court (so the health establishment can keep the person, but cannot treat them against their will)

Use of restraints - pursuant to protocol (code blue etc) – only if ordered or if emergency.

AWOL - need to communicate with DPS’ office who will ask that patient be brought back to hospital via police

Question 27

Patient access and medical records

Answer 27

Patient has right to access information in his own medical records
Hospital owns the actual medical record, but information therein is property of the patient (ex: you can make copies of the info but the paper belongs to them; the info belongs to you)

The patient also has the right to correct information in his or her file that is inaccurate, incomplete or ambiguous.

Right of access not absolute:
Medical professional may deny access if there is a significant likelihood of a substantial adverse effect on the patient’s physical, mental or emotional health, or harm to a third party (i.e., can withhold information if clinical judgment thinks this would harm the patient - clinical assessment)

Question 28

Patient access and medical records: Deceased patients

Answer 28

The heirs, legatees by particular title and legal representatives of a deceased user are entitled to be given communication of information contained in his record to the extent that such communication is necessary for the exercise of their rights in such capacity.

The spouse, ascendants or direct descendants of a deceased user are entitled to be given communication of information relating to the cause of death of the user, unless the deceased user entered in writing in his record his refusal to grant such right of access.

The holder of parental authority is entitled to be given communication of the information contained in the record of a user under 14 years of age even if the user is deceased. However, that right of access does not extend to information of a psychosocial nature.

Notwithstanding the second paragraph, persons related by blood to a deceased user may be given communication of information contained in his record to the extent that such communication is necessary to verify the existence of a genetic or hereditary disease.