Québec tribunals and their ability to force involuntary medical treatment upon an individual.

The first half of January 2021 has been a busy time for the Quebec court system. At the time of this post’s writing, the legal search engine, SOQUIJ, has added 2 358 rendered decisions, ranging across a variety of legal fields, such as Labour Law, Penal Law, and even Agricultural Law. While combing through many of these legal decisions, I remarked on three that were of a common subject: involuntary medical treatment.

In the first decision, the 88-year-old defendant is convinced that she is of sound mind and sufficiently autonomous to live on her own[1]. However, multiple mental health specialists are convinced otherwise, providing reports suggesting major neurocognitive issues, such as disorientation, dementia, and an inability to make choices that are necessary to maintain personal health and security[2]

A 55-year-old defendant, living under a tutorship with a variety of health problems, including major neurocognitive issues and cerebral atrophy is the subject of the second decision[3]. As in the first decision, the petitioner is seeking that the defendant undergo involuntary treatment[4]. Finally, due to a severe schizoaffective disorder and substance abuse, among other maladies, the petitioner of the third decision consulted was seeking for the 41-year-old defendant to also receive treatment against their will[5].

Involuntary treatment is a nebulous subject, because it limits certain rights guaranteed by the Canadian Charter of Rights and Freedoms, notably the right to liberty (section 7). In Quebec, the Charter of Human Rights and Freedoms, a quasi-constitutional legislation, also guarantees the right to liberty, but also the right to one’s own integrity (section 1) and the right to one’s own dignity (section 4). Even the article 11, paragraph 1 of the Civil Code of Quebec states that an individual cannot be forced to undergo treatment unless otherwise stated by the Law. How does one interpret article 11? What are the applicable criteria to force an individual to undergo a treatment against their will?

There are two principle legal sources that help enlighten a general response to this question. The exception designated in article 11 of the Civil Code of Quebec is found in article 16 of the same legislation, detailing that an adult that is incapable of making their own decisions who categorically refuses necessary treatment can be forced to undergo it by a tribunal. The tribunal will consider the opinions of experts, of individuals who have a personal interest for the individual in question and of the mandatary (the legal tutor or curator of the individual).

The second source is the precedent Institut Philippe-Pinel de Montréal c. G. (A.). In this decision, the Quebec Court of Appeal provided a list of five questions that one must examen to force an individual to receive treatment. They are:

  1. Does the individual understand the nature of the illness that is subject to the proposed treatment?[6]
  2. Does the individual understand the nature and the goal of the proposed treatment?[7]
  3. Does the individual understand the risks and the advantages of the proposed treatment if he/she were to go through with it?[8]
  4. Does the individual understand the risks of not undergoing the treatment?[9]
  5. The individual’s ability to understand the treatment, is it affected by the illness?[10]

All three of the decisions referred to Institut-Philippe-Pinel to declare each defendant incapable of consenting to the respective proposed treatments.

Being forced to undergo treatments is a civil rights issue that cannot possibly be examined in detail in a blog post. Many nuances exist, and as much as the five-step test seems objectively black and white, there exists a plethora of sub-questions that one must consider, ranging from the notion of proof to that of protective supervision. Nonetheless, by examining three relatively simple decisions, one can see the process that the Quebec legal system must adhere to; to justify such an infringement on an individual’s right to dignity, to inviolability and to personal freedom, among others.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

[1] Centre intégré universitaire de santé et de services sociaux de l’Estrie – Centre hospitalier de Sherbrooke v D.L. 2021 QCCS 33 at para 9.

[2] Ibid. at paras 4 and 6.

[3] Centre intégré universitaire de santé et de services sociaux de l’Estrie – Centre hospitalier universitaire de Sherbrooke v S.R. 2021 QCCS 32 at paras 2 and 4.

[4] Ibid. at para 1.

[5] Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale v D.Z. 2021 QCCS 51 at paras 1 and 16.

[6] Institut Philippe-Pinel de Montréal c. G. (A.) 1994 RJQ 2523 at pg 28.

[7] Ibid., pg 29.

[8] Ibid, pg 31.

[9] Ibid, pg 41.

[10] Ibid., pg 43.