This text is part of a series seeking to demystify mental health law and legal practices. Its specific purpose is the three types of confinement: preventive, temporary and in an establishment.
Custody is the only civil legal mechanism specifically relating to mental health. Although they take place in a hospital environment, they only aim to stop acting and not treatment, and the criterion allowing them to be implemented is the danger to oneself or others. Persons in custody retain their right to consent to care.
Preventive, temporary and institutional custody
There are three types of custody. The first, preventive confinement, allows a doctor to compel a person presenting a serious and immediate danger to himself or others to stay in the hospital for no more than 72 hours. The person may have come to the hospital on their own, or been taken away by relatives, police or paramedics.
Provisional custody or request for psychiatric assessment is a request presented to the Court of Quebec to force a person to be kept in a health establishment to undergo a psychiatric assessment. It can be presented by any person having an interest in the person concerned — a professional, a relative, a neighbor — or by a health establishment for a person in protective custody. Unless the person is already hospitalized, the court order is enforced by the police. The order allows for two psychiatric assessments, but if one of those assessments concludes that the person does not represent a danger, he must be released.
When the two psychiatric evaluations conclude that there is a danger to oneself or others, the establishment submits a motion for confinement in an establishment to the Court of Québec within two days. Prescriptions are typically 30 days, but can be 60 or 90 days. At the end of this term, or when the person no longer represents a danger, he must be released.
A speedy judicial process
Provisional and institutional confinement are ordered following a civil trial during which the person concerned by the request can be represented by a lawyer, present evidence and make arguments. However, although the practice differs according to the districts, they are very often absent from their hearings — this is the case for two-thirds of people in the district of Montreal — even if the judges have a formal obligation to hear them.
Since the psychiatrists who carried out the assessments are systematically absent, the judge frequently finds himself with only the very short forms used for the assessments with boxes to tick and a few lines of text as proof. The facts described therein have generally been reported by third parties — relatives, police officers, etc. — and are not verifiable.
The people targeted, who regularly show up at the courthouse without a lawyer, are solicited in the corridors in contravention of the Code of Ethics for Lawyers, which prohibits the exploitation of vulnerable people. Because the volume practice in mental health can pay off. Thus, in 2021, a lawyer acted in 605 custody cases in an establishment, which allowed him to bill $156,600 to the Commission des services juridiques.
The preparation of the defense is complicated by the emergency context, and it regularly takes place a few minutes before the hearings. While the number of applications is constantly increasing, court decisions are made quickly – on average 14 minutes in the district of Montreal, but it is not uncommon for hearings to last five minutes. They order guards in more than 95% of cases.
More than 20 years ago, when the government created these mechanisms, it promised to review their operation within 10 years, which has not been done. Investigations by the Québec Ombudsman, the Ministère de la Santé et des Services sociaux, and community and university circles have shown that their application is deficient in both the hospital and judicial sectors, particularly with regard to compliance with deadlines and the rights of individuals. These findings are worrying, must be taken seriously and be considered in the current social debate.