Our Quebec Minister of Justice announced with great fanfare the creation of a specialized court in matters of sexual violence. We are grateful to him for having reacted in this way to this problem and we even send him our congratulations.
In fact, the government’s speed in setting up this specialized tribunal is remarkable. It reflects the extent of the phenomenon and especially the concern of the justice system with regard to the long-term consequences incurred by the victims of such attacks.
The taking seriously of a hitherto trivialized problem is part of the movement of online denunciations which have flourished in recent years, and which continue to feed social networks, among others. We are men and women of our time, after all.
But another problem, just as serious, and easier to quantify, calls for action: that of the growing number of “requests for authorization of care” and “requests for confinement in an establishment”. Countered by the patient’s refusal, these requests are also flourishing, despite the little publicity to which they are subject (due in particular to their confidential nature). This is at least what observers of the judicial community note. It is high time for a specialized tribunal to be dedicated to them as well.
In a few words, we use the request for authorization of care when a person categorically refuses care required by his state of health. A custody application is appealed when the person presents a danger to themselves or to others because of their mental state. The dogma of the inviolability of the person is therefore circumvented if a court judges that the person is incapable of consenting to the care of which he has a vital need.
This care can be of all kinds: psychosocial or medical (ranging from taking medication to electroshock, etc.), including accommodation (with the associated loss of home).
It will be understood that forcing a person to take a drug they do not want (for whatever reason) or to move to a CHSLD (where life expectancy is often less than three years) is not a pleasant thing. Thus, the court order authorizing care or confinement in an establishment will look very similar, for those who receive it, to a sentence of civil detention, like those prevailing in criminal law (with different repercussions, of course).
For the granting of a request for authorization of care, the person will be deemed unfit to consent to the care offered based on current psychiatric, medical or psychosocial data, data evaluated according to criteria developed by the courts. As for custody in an establishment, the dangerousness of the person must be verified or at the very least considered as possible for it to be retained.
Significant increases
However, it turns out that the importance of this type of application before the courts, still timid in the last decade of the last century, is taking on considerable importance. If we cannot claim a fashion effect, let us agree to say that this multiplication is a worrying phenomenon, knowing that these are in principle requests intended to be exceptional (which the Court of Appeal continues to ‘frame, by the way).
“In matters of confinement of a person against their will in a health establishment because of the danger they represent for themselves or for others, 7,030 applications were presented to the Court of Québec in 2020, an increase of 23 % in five years. The increase is even more spectacular in terms of authorization to treat against their will a person incapable of consenting to their care and opposing a categorical refusal, with 3,244 requests that were presented to the Superior Court in 2020, an increase of 33% in five years,” explains Professor Emmanuelle Bernheim.
It is by design that, in the extract mentioned, recourse to confinement in an establishment and recourse to the authorization of care, although distinct, form the same team. They differ on several levels, if only in their basis, their effects and the courts concerned. However, these remedies reveal something quite singular: they must both be exercised before two (or even three) separate courts depending on their basis.
It’s not a detail. You have to imagine yourself in the shoes of a vulnerable, sick, elderly and/or handicapped citizen struggling with this legal hodgepodge. For him, it is eminently complex. When will a court integrate all the problems relating to the integrity of the citizen? When, above all, will the work on these files in a vacuum end?
Many questions, one solution
Does the pandemic justify such an increase in cases? Are citizens as unfit or dangerous as the statistics suggest? Or is the complacency of the courts part of the problem, despite the clarifications of the appeal courts? Is the weight of psychiatric knowledge (one could even ask of its power) in question? A judge could very well not feel equipped enough to contradict the medical expertise. Would that explain, at least in part, the proliferation of authorizations granted to the requests presented to them?
Are the courts so uncomfortable with the risks associated with the autonomy of the elderly, or with the mental illness or neurocognitive problems that a growing proportion of litigants suffer from? Does the fairly generalized absence of accredited legal representatives (lawyers, public curator) or supporters able to help the adversarial debate contribute to the acceptance of such requests, the flow of which continues to climb? And finally, is this growing number of requests a perverse effect of the scarcity of access to services in the health network?
Anyway, everything converges towards a single solution. Just as we welcome the Minister’s approach to sexual violence, which is the creation of this specialized court, we believe that it is time for him to see that the courts have a Chamber of the person , all jurisdictions combined. Like the Commercial Chamber, this chamber could offer the public a more coherent and above all more understandable justice system, capable of curbing the flow of claims affecting the very integrity of the citizen. The well-being of all our fellow citizens is at stake in the face of these alarming slides.