The Quebec government has agreed to pay $8.5 million to people with mental health issues who say they were held against their will for more than 72 hours in hospital, beyond what is allowed under Bill P-38. Thousands of people could be compensated.
The agreement covers any person held in preventive custody in a hospital establishment for more than 72 hours against their will or without the authorization of a court. The episode must also have occurred after 1er January 2015 for a file to be admissible.
Each person would receive $1,000 for each day they were detained that exceeded the 72-hour maximum set by law.
The use of the conditional is required here because the agreement has not yet been approved by a court. A hearing for the next stage of the case is scheduled for October.
The approval would be a significant milestone, according to the lawyer who defended the applicants’ case, Mr.e Patrick Martin-Ménard: “It’s a very good settlement that can compensate a very large number of people,” he said.
Let us recall that under Law P-38, in force since 1998, health establishments have the right to forcibly hospitalize a person in a “preventive” manner for a maximum of 72 hours, but only if the person presents a serious and immediate danger to themselves or others.
However, mental health rights groups have been arguing for years that health care workers are misusing it.
In December 2020, one of them, Action Autonomie, filed a class action against health institutions for the damages suffered by these people, in particular for “violation of their fundamental rights”. The request targeted all health and social services centres in Quebec (the CISSS and the CIUSSS).
Up to 9000 beneficiaries
After discussions that lasted more than a year, the two parties finally reached a settlement agreement which was filed in Superior Court in July.
The $8.5 million envelope associated with the agreement would be split into two parts. The first ($3.6 million) would be devoted primarily to compensation, and the second ($4.8 million) to community organizations working to defend mental health rights.
For Action Autonomie, this is a major victory. “It’s really major because it represents all health care institutions,” says its spokesperson, Jean-François Plouffe, who emphasizes that his organization would not benefit directly from it since, as an applicant, it would not have access to the $4.8 million fund.
This is not the first time that mental health advocacy groups have won their cases in court related to P-38, he said, but never before has a settlement been reached with the entire network.
According to him, up to 9,000 people could be eligible for compensation. But they still need to be reached. “That brings us a lot of work, because these are often disadvantaged, isolated, hard-to-find people.”
Beyond the compensation, Mr. Plouffe hopes that the agreement will encourage institutions to be more “rigorous” in their application of Bill P-38. “They must realize that they are not above the law.”
In his view, hospitals resort to preventive custody far too often. “It has become a routine approach on the part of hospitals, which does not always have a direct relationship with the real danger posed to people.”
A law already examined
This agreement comes at a time when the government is planning an overhaul of Bill P-38. In 2023, the Minister responsible for Social Services, Lionel Carmant, mandated the Quebec Institute for Law and Justice Reform, an independent organization, to make recommendations. The results of this exercise will not be known until 2025.
However, Action Autonomie’s position in favour of a stricter version of P-38 is far from unanimous. The minister is also under a lot of pressure from police circles and health care workers, who are asking him, conversely, to relax the rules.
The issue was raised in particular during the coroner’s inquest into the death of police officer Maureen Breau, who died on duty in Louiseville.
When announcing the reform of Bill P-38, Minister Carmant stressed that ensuring the protection of the public while respecting rights represented “a delicate balance” to achieve. “The purpose of this law is to ensure the safety of people whose mental state presents a danger, but also to properly supervise the use of this exceptional measure,” he said.
In February 2011, the Quebec Ombudsman’s office reported cases of non-compliance with Act P-38 in the network. In a report to the government, it recommended that the law be amended. “A more rigorous application of this law is necessary,” it wrote.