Immediate danger vs. imminent danger (Chapter P-38.001)

The Act Regarding the Protection of Persons Whose Mental State Presents a Danger to Themselves or to Others is the application of Article 27 of the Civil Code of Quebec, which states :

“Where the court has serious reasons to believe that a person is a danger to himself or to others owing to his mental state, it may, on the application of a physician or an interested person and notwithstanding the absence of consent, order that he be confined temporarily in a health or social services institution for a psychiatric assessment.”

To better understand the application of this act, it is important to know that it is first of all a law of exception and that it may only be used if the following conditions are met :

✓ Your loved one refuses to see a doctor

AND

✓ Their mental state presents a danger to themselves or others

When there is an emergency and the situation requires quick intervention, you should call the police directly. In order to use this type of intervention, your loved one must demonstrate, through their words and/or actions, an immediate and grave danger to themselves and/or others.

Here is an example : Your loved one is having hallucinations that cause them to be violent to themselves (self-harm) and/or physically violent (breaking things). They threaten you, push you around, make verbal threats, etc.

This example is only one possible illustration of the concept of grave and immediate danger. Each situation is a different and should be judged according to the individual circumstances surrounding it.

If police officers determine that the danger is urgent and serious, they may take your loved one to the hospital emergency room. Your loved one will be seen by an emergency physician. They will determine whether or not your loved one should be placed in preventive confinement. This confinement is to ensure their safety or that of others.

NOTE : In preventive confinement, a psychiatric evaluation cannot be conducted without the person’s consent.

Two possible outcomes of preventive confinement :

Outcome 1 : The emergency physician believes that your loved one no longer presents a grave and immediate danger. In this situation, the law does not allow the institution to hold them without their consent.

Outcome 2 : The emergency physician believes that your loved one presents a grave and immediate danger. They will be placed in preventive confinement. The law allows health and social services institutions to hold your loved one against their will, that is, without their consent, and without court authorization, for a period of up to 72 hours. The physician will still attempt to obtain consent for the evaluation. If they refuse, the hospital will begin the process to obtain a “temporary confinement” order for psychiatric examination.

Temporary confinement

Temporary confinement is in effect when the court issues an order for psychiatric evaluation. This type of confinement allows a psychiatrist to conduct a psychiatric evaluation of your loved one without consent because they present a danger to themselves and/or others in the short term.

Confinement may be requested by :

1. The hospital, if your loved one is already in preventive confinement;

OR

2. Any person who has substantial reason to believe that the person’s mental state requires psychiatric evaluation.

Here is an example :

Your loved one sleeps with a knife because they think they are being chased by bikers. Their mental state is disorganized. They no longer eat because they believe that the food is poisoned. They are delirious. They talk about killing themselves. They believe they are on an alien mission to save the world. They are preparing for an invasion and believe it is their duty to eliminate those who do not believe them. They engage in risky behaviour because they believe themselves to be invincible.

This example is only one possible illustration of the concept of grave and immediate danger. Each situation is a different and should be judged according to the individual circumstances surrounding it.

In these situations, your family services organization can guide you through the process of obtaining a temporary confinement order for psychiatric evaluation. The procedure for obtaining this type of confinement will be described in the second part of this document.

Stages and outcomes of temporary confinement :

When an order for psychiatric evaluation is issued, an initial evaluation will be conducted by the hospital within 24 hours of intake or of the order being issued (Article 28 of the Civil Code of Quebec).

✓ If the psychiatric physician concludes that there is no obvious danger due to the person’s mental state, they may not hold the person against their will. However, the individual may be allowed to stay on a voluntary basis.

✓ If the initial examination concludes that the person’s mental state presents a danger to themselves and/or others, the psychiatric physician will hold the person until they undergo a second examination by another psychiatrist within 96 hours of intake.

If both psychiatric evaluations demonstrate that your loved one presents a grave and immediate danger to themselves and/or others and they refuses to remain in the hospital, the hospital will contact the court to obtain an order for institutional confinement. The deadline to file is within 48 hours after the two evaluations have been conducted.

The hospital will then be required to notify you of its intention. You will receive a notice to appear in court to file the petition for institutional confinement. You are not required to attend, but you may wish to and perhaps even testify. It is also important to note that your loved one may contest this petition and may represent themselves before the court or request the assistance of a lawyer.

Institutional confinement

Following the hospital’s petition, the court may issue a judgement ordering your loved one to submit to institutional confinement. If issued, this type of confinement requires your loved one to remain in the hospital for as long as they present a grave and immediate danger to themselves and/or others.

During institutional confinement, your loved one may refuse medical care and medication. However, staff will ask for their cooperation in order to obtain their consent.

It is important to know that as soon as your loved one no longer presents a grave and immediate danger to themselves and/or others, the confinement order will be automatically lifted, regardless of the duration previously established in the confinement order. Then, your loved one may leave the hospital or remain hospitalized voluntarily.

Recourse for persons under institutional confinement

Persons under institutional confinement also have the right to contest the court’s decision. They may do so in the following ways :

• Appeal the Court of Quebec’s decision

If your loved one believes that the court made a mistake of law, they may appeal the decision to the Court of Appeal of Quebec within five days of being placed under institutional confinement.

• File an appeal through the Administrative Tribunal of Quebec (TAQ)

Your loved one may also contest their confinement by writing a letter to the Tribunal (TAQ) explaining the reasons why they would like to appeal. It is important to know that this approach will not suspend the current confinement term. Institutional confinement will remain in effect until the court or health institution has decided to terminate confinement.

• Mental health advocacy group

If your loved one feels that their rights have been violated, they may contact a lawyer through their local mental health advocacy group.

Please note that your loved one may use the above methods more than once during their confinement. There is no restriction on the number of times a person may file an appeal.

PART 2

Information about assistance in filing a petition for a psychiatric evaluation order

Information about support from your local organization and the legal process for obtaining an order to require your loved one to undergo psychiatric evaluation :

Two family members must sign the petition. They are known as the petitioner and the intervening party. As defined by law, these persons are of legal age and demonstrate a specific interest in a person who refuses to undergo psychiatric evaluation when there is serious reason to believe that their mental state presents a danger to themselves and/or others. These people can be family members, friends, a doctor, a caregiver, etc. They must be able to prove dangerousness in terms of recent events and observable behaviours.

• The petitioner is the person who initiates the petition because they believe that their loved one, through their words and/or actions, demonstrates a danger to their own health and safety and/or that of others;
• The intervening party is the person who also has knowledge of the person’s (respondent’s) current mental state and who supports the petitioner’s petition;
• The respondent is the person who presents a danger to themselves and/or others.

It is preferable that at least one family member support the petitioner in the process of obtaining an order. If, for any reason, a family member cannot be present, it will be necessary to explain the reason(s) for their absence by providing the judge with a letter from that person.

How to file a petition with assistance from your local organization

Generally, the first contact with your local organization takes place by phone. You will be asked to briefly describe the situation and why you have reason to believe that your loved one’s mental state presents a danger to themselves and/or others. Before the meeting, the representative will suggest that you write down recent events and behaviours that you have observed and that worry you. These notes will be an invaluable tool for the rest of the process.

The representative may also ask you to contact the attending physician and/or other professionals involved with your loved one to obtain a letter of support from them. In addition, any other items relevant to the situation, such as photos, written documents from your loved one, etc., may be helpful.

Meeting with your local organization

1. Assistance drafting the petition

Once the information has been gathered, the representative will guide you through the process of drafting the petition.

The petition must demonstrate, through recent facts and observable behaviours (suicide threats, disorganization, violence and threats to others, etc.), that the person’s actual and current mental state is dangerous to themselves and/or to others. The judge will use these documents to assess whether your loved one’s mental state requires psychiatric evaluation.

2. Assistance at the courthouse

The petitioner shall appear at the courthouse serving the municipality where the person whose mental state presents a danger resides, on the date and at the time agreed upon with the representative.

We strongly recommend that you be accompanied by the person representing the intervening party. In addition to lending their support, their presence will add credibility when the petition is presented to the court.

Arriving at the courthouse

Upon arrival at the courthouse, you will be directed to the civil court office to be sworn in. You will then be asked to proceed to a designated room to meet with the judge.

Presenting your petition before the judge

The hearing of the petition by the judge always takes place behind closed doors, that is, only those involved with the petition may be present at the hearing. However, at your request, your organization’s representative may be present.

The judge will hear your petition. They may ask you to explain the situation in more detail. You must then tell the judge in what way the current situation leads you to believe that your loved one’s mental state presents a danger to themselves and/or others. It is best to give concrete examples.

At the hearing of the petition, if the judge is satisfied with the evidence, they will issue a judgement ordering the psychiatric evaluation and designating the hospital where the person will be taken.

3. Assistance at the police station

After obtaining the order signed by the judge, you must go to the police station serving your loved one’s place of residence or to the police station serving the area where your loved one is located if they are not at home.

A representative from your local organization may be able to accompany you to the police station. Enquire with the organization.

Upon arrival, you must present the police with the order and provide the documents for the hospital. A police officer may ask to meet with you in order to better prepare for their intervention. They will ask you some questions about your loved one, such as if they are aggressive, do they have weapons, where they are. You will also be able to ask questions about the police intervention.

You should know :

• You have the right to ask that your meetings with the police be kept confidential;
• Some police officers can provide transportation for your loved one to the hospital in their vehicle, but most of the time, your loved one will be transported by ambulance;
• You can choose whether or not to be present during the police intervention.
  If you choose not to attend, the police may ask you to make certain arrangements. For example, provide them with the keys to the residence or notify the superintendent so access may be granted in case your loved one refuses to open the door.
• An order is LEGALLY BINDING.

Which means that you must present the order to the police immediately after is it obtained from the court. If you delay for any reason, there is risk that the police may refuse to enforce it.

However, if your loved one cannot be found the day the order is issued, it shall become enforceable as soon as you see them or know where they are located, even if a few days have passed since the order was obtained.

What will happen in the emergency room?

Upon arrival at the hospital, police officers or paramedics will give the order, petition and related documents, if any, to health care professionals so the psychiatrist can conduct the psychiatric evaluation.

FREQUENTLY ASKED QUESTIONS

Is there a fee to prepare and file the petition?

Services through your local organization are free. There is no fee for the Civil Court of Quebec hearing. However, if the judge requires that the petition be served on your ill loved one or the intervening party, a fee for service by bailiff must be paid by the petitioner.

Is there a fee for the ambulance service?

Fees are always billed to the person being transported by ambulance. However, if your loved one has group insurance or receives income security benefits, the fees may be reimbursed. These fees are comprised of the base rate plus the mileage between your loved one’s location and the hospital.

Can the judge refuse to grant the order?

Yes, if they deem that the level of dangerousness is not sufficient or has not been sufficiently demonstrated. This is why it is important to be well prepared and to report as many facts and behaviours as possible that demonstrate dangerousness. Your organization’s representative is there to guide you.

Can I file more than one petition?

Yes, as soon as you observe new evidence that your loved one’s mental state presents a danger to themselves and/or others.

Can I choose the hospital where my loved one will be hospitalized?

Recently, the Ministry of Health and Social Services discontinued the division of mental health services by sector. Therefore, you are now free to choose the hospital. However, it is best to choose the hospital closest to your loved one’s home that offers psychiatric services or the hospital where your loved one is already receiving care. If you choose a hospital outside of your local area, we suggest you check beforehand to make sure they can accommodate your loved one.

Does the psychiatric evaluation order require my loved one to be hospitalized?

No, the order only requires the person to undergo a psychiatric evaluation. If your loved one refuses hospitalization and two psychiatrists conclude that they present a danger, the hospital will have to obtain authorization from the Civil Court of Quebec to keep them in the hospital against their will. This is called institutional confinement.

Does the order require my loved one to receive treatment?

No, the order does not require your loved one to accept care. Your loved one can refuse any treatment. However, in order to protect their well-being, the hospital may contact the court (Superior Court) to obtain a treatment order.

What are my obligations as a petitioner when my loved one is in temporary confinement?

Being available to provide more information to the psychiatrist so that they can better conduct the evaluation. It is important to ensure that the psychiatrist has your contact information.

Do I have to report to the hospital immediately?

No, it is even recommended that you ask the nursing staff if it is a good time to visit.

How long can my loved one be hospitalized?

Against their will, as long as they present a danger to themselves and/or others or, if they agree, as long as hospital care is required and in accordance with the psychiatrist’s evaluation.

Is the psychiatrist required to give me information about diagnosis, treatment, etc.?

Not unless they have obtained permission from your loved one. Professional privilege is a legal obligation under which all personal information that a professional in the health and social services network possesses about a given person must remain confidential. For more information, please refer to page 54 of the “Practical Guide to Mental Health Rights: Answers to Questions by Family and Friends of Individuals with Mental Health Problems” available through your local organization.

However, you may communicate verbally or in writing with the psychiatrist to share any information that you may have.

Can I refuse to allow my loved one to move back into my home when they are discharged from the hospital?

Yes, you should know that you are never obligated to take your loved one home unless you live in their home. However, it is important to inform the care team of your plans as soon as possible so that the social worker in the psychiatry department can be notified and can take the necessary steps with your loved one.

Will I be informed when my loved one is discharged from the hospital?

No. Although this may happen, it is more likely that your loved one will notify you when they have been discharged.

Will my loved one have a criminal record that will prevent them from travelling abroad, for example, to the United States?

No. This matter is handled in civil court and bears no criminal consequences.

Source : Informational brochure for families on: The Act Regarding the Protection of Persons Whose Mental State Presents a Danger to Themselves or to Others and assistance in filing a petition for a psychiatric evaluation order [in French only] by Éclusier du Haut-Richelieu