This text is part of a series seeking to demystify mental health law and legal practices. It focuses more specifically on the authorization of care.
Authorization of care is a civil legal mechanism for imposing treatment against a person’s will. Unlike a prescription, the authorization is given by the court to a health establishment or a doctor to perform an otherwise illegal act, namely to violate the right to refuse care. The criterion here is the ability to consent to his care and it is only possible to impose treatment via the authorization of care for a minor or an adult person unable to consent to his care.
The authorization of care was not originally aimed at mental health, the concept of incapacity to consent to care being much broader. In practice, however, it is used mainly to impose psychiatric treatments and, to a lesser extent, to intervene with the elderly.
Consent to care and mental health
Consent to care is the cornerstone of the relationship between patients and caregivers. It implies on the part of caregivers to transmit complete information about the state of health and the care offered, and the capacity for the people treated to understand it and to be able to express their wishes, including a refusal of treatment. This will must be respected, even if it involves dramatic consequences such as death. This basic principle applies to everyone, regardless of health status. The age to consent to care in Quebec is 14 years old.
When a person requiring care is unable to consent to it, whether temporarily or permanently, consent may be given in substitution on the same terms by a person close to him – a family member. For example.
Court authorization becomes necessary in three cases. First, in the case where the person who can give substituted consent unjustifiably refuses care or is unavailable. Then, to force a minor aged 14 and over to receive care that she refuses. Finally, to force to receive care an adult person incapable of consenting to their care who categorically refuses treatment required by their state of health, regardless of the substituted consent. It is this last scenario that is the subject of the majority of judicial decisions.
Authorization for care, a Quebec exception
Requests for authorization of care are filed with the Superior Court by the health establishments and most often involve the psychiatrists treating the persons concerned who are the main witnesses at the hearings. Affected persons may be represented by lawyers, present evidence and legal arguments.
From the first care authorization decisions in the 1990s, the courts chose to retain the test approved by the Canadian Psychiatric Association to determine the capacity to consent to care and which includes in particular the recognition of one’s illness and the effects of the disease on the capacity to consent. This test had been strongly criticized because of the links it creates between denial and incapacity, and between certain symptoms of psychiatric illnesses and incapacity. Research shows that the tests used to assess the ability to consent to care directly determine the profile of people considered incompetent.
In the 1990s, requests were few and were for a year of forced care. They were regularly rejected by the Court. But from the 2000s, and especially after 2008, requests multiplied and trends emerged: requests increasingly included the use of force to be implemented, as well as the possibility of harboring the person against his will or to determine his place of accommodation; they are less and less precise with regard to the treatments; they are getting longer and longer: the average is currently three years, but they sometimes reach five years.
At the same time as these trends were emerging, practices also evolved: the people targeted are less and less present at their hearings and less often represented; requests are more and more often accepted (in 96% of cases), even when they do not correspond to the legal criteria, for example when they concern capable persons.
It should be noted that Quebec is the only jurisdiction allowing the imposition of such long periods of forced care without any review mechanism. However, this practice says more about Quebec society than about the state of mental health of the population, which is certainly no more unfit than elsewhere. Why so many constraints and control, if only because of the structural absence of services, the functioning of the health system in crisis management mode and the systemic neglect of rights.