p-38.001 - Act respecting the protection of persons whose mental state presents a danger to themselves or to others

Updated to 25 January 2021

This document has official status.

chapter P-38.001

Act respecting the protection of persons whose mental state presents a danger to themselves or to others

PRELIMINARY PROVISION

1. The provisions of this Act complement the provisions of the Civil Code concerning the confinement in a health and social services institution of persons whose mental state presents a danger to themselves or to others, and the provisions concerning the psychiatric assessment carried out to determine the necessity for such confinement.

1997, c. 75, s. 1.

CHAPTER I PSYCHIATRIC EXAMINATION

2. The psychiatric examination to which a person is required to submit by law or by a court decision must be carried out by a psychiatrist. However, if it is not possible to obtain the services of a psychiatrist in due time, the examination may be carried out by any other physician.

The person who carries out the examination may not be the spouse, a close relative or relative by marriage or a civil union or the representative of the person undergoing the examination or of the person who requested the examination.

1997, c. 75, s. 2; 2002, c. 6, s. 151.

3. The report made following a psychiatric examination must be signed by the examining physician. He must, in particular, state in the report

(1)  that he himself has examined the person;

(2)  the date of the examination;

(3)  his diagnosis, even if only provisional, concerning the mental state of the person;

(4)  in addition to what is provided in article 29 of the Civil Code, his opinion as to the gravity and probable consequences of the person’s mental state;

(5)  the reasons and facts upon which his opinion and diagnosis are based and, among the facts mentioned, those which he himself has observed and those which have been communicated to him by others.

1997, c. 75, s. 3.

4. Where an institution has been required to administer a psychiatric examination, it is incumbent upon the director of professional services or, where there is no such director, upon the executive director of the institution to transmit the physician’s report to the court that ordered the examination.

1997, c. 75, s. 4.

5. The disclosure of the report by the institution is governed by the provisions relating to access to the person’s record contained in the legislation respecting health services and social services, and does not require the authorization of the court under article 29 of the Civil Code.

1997, c. 75, s. 5.

CHAPTER II CONFINEMENT

DIVISION I PREVENTIVE CONFINEMENT AND TEMPORARY CONFINEMENT

6. Only an institution operating a local community service centre equipped with the necessary facilities or a hospital centre may be required to place a person under preventive confinement or temporary confinement for psychiatric examination.

1997, c. 75, s. 6.

7. A physician practising in such an institution may, notwithstanding the absence of consent, place a person under preventive confinement for not more than 72 hours in a facility maintained by the institution, without the authorization of the court and prior to psychiatric examination, if he is of the opinion that the mental state of the person presents a grave and immediate danger to himself or to others. A specialized nurse practitioner who practises for such an institution may also, if of that opinion, take such action.

The physician or the specialized nurse practitioner who places the person under confinement must immediately inform the director of professional services or, where there is no such director, the executive director of the institution.

On the expiry of the 72 hour period, the person must be released, unless a court has ordered an extension of the confinement for psychiatric assessment. However, if the seventy-two hour period ends on a Saturday or on a holiday, if no judge having jurisdiction in the matter is able to act and if termination of confinement presents a danger, the confinement may be extended until the expiry of the next working day.

1997, c. 75, s. 7; I.N. 2016-01-01 (NCCP); 2020, c. 6, s. 16.

8. A peace officer may, without the authorization of the court, take a person against his will to an institution described in section 6

(1)  at the request of a member of a crisis intervention unit who considers that the mental state of the person presents a grave and immediate danger to himself or to others;

(2)  at the request of the person having parental authority, the tutor to a minor or any of the persons mentioned in article 15 of the Civil Code, where no member of a crisis intervention unit is available in due time to assess the situation. In such a case, the peace officer must have good reason to believe that the mental state of the person concerned presents a grave and immediate danger to himself or to others.

Subject to the provisions of section 23 and to more pressing medical emergencies, the institution to which the person is brought must take charge of the person upon arrival and have the person examined by a physician or a specialized nurse practitioner. The physician or nurse may then place the person under preventive confinement in accordance with section 7.

In this section, “crisis intervention unit” means a unit designed to take action in crisis situations pursuant to the mental health service organization plans provided for by the legislation respecting health services and social services.

1997, c. 75, s. 8; 2020, c. 6, s. 17.

DIVISION II CONFINEMENT AUTHORIZED BY A COURT PURSUANT TO ARTICLE 30 OF THE CIVIL CODE

9. Only an institution operating a hospital centre, rehabilitation centre, residential and long-term care centre or reception centre that is equipped with the necessary facilities for receiving and treating mentally ill persons, may be required to place a person under confinement following a court judgment pursuant to article 30 of the Civil Code.

1997, c. 75, s. 9.

10. Where the court has set a duration of confinement exceeding 21 days, the person under confinement must be examined periodically to ascertain whether continued confinement is necessary, and reports of such examinations must be produced at the following times:

(1)  21 days from the date of the decision made by the court pursuant to article 30 of the Civil Code;

(2)  every three months thereafter.

The psychiatric examination reports shall be kept by the institution as part of the person’s record.

1997, c. 75, s. 10.

11. A person under confinement may, at his request, be transferred to another institution, if the organization and resources of that institution permit of such a transfer. Subject to the same condition, the attending physician may transfer the person to another institution which he considers better able to meet the person’s needs. In the latter case, the physician must obtain the consent of the person concerned, unless the transfer is necessary to ensure the person’s safety or that of other persons. The physician’s decision in that respect must contain reasons and be filed in the person’s record.

No transfer may take place unless the attending physician attests, by way of a certificate containing reasons, that in his opinion such a measure does not present any serious and immediate risks for the person or for others.

Following a transfer, confinement continues in the new institution and a copy of the record of the person under confinement shall be forwarded to that institution.

1997, c. 75, s. 11.

12. Confinement ends, with no further formality,

(1)  as soon as a certificate attesting that confinement is no longer justified has been issued by the attending physician or a specialized nurse practitioner;

(2)  on the expiry of a time limit prescribed by section 10, if no psychiatric examination report has been produced by that time;

(3)  on the expiry of the time fixed in the judgment ordering confinement;

(4)  upon a decision to that effect by the Administrative Tribunal of Québec or a court of justice.

1997, c. 75, s. 12; 2020, c. 6, s. 18.

13. Where a person ceases to be under confinement but must be detained or lodged, otherwise than in accordance with this Act, the institution must take the necessary steps to entrust the person to the care of a person in authority at an appropriate detention centre or lodging facility.

1997, c. 75, s. 13.

CHAPTER III RIGHTS AND REMEDIES

DIVISION I INFORMATION

14. A peace officer acting under section 8 or any person who, in accordance with a court order, takes a person to an institution for confinement and psychiatric assessment must inform him of that fact, of the place where he is being taken and of his right to contact his close relatives and an advocate immediately.

The peace officer or person remains responsible for that person until he is taken in charge by the institution.

1997, c. 75, s. 14.

15. As soon as the person has been taken in charge by the institution, or as soon as he seems able to understand the information, the institution must inform him of the place where he is being confined, of the reasons for the confinement and of his right to contact his close relatives and an advocate immediately.

1997, c. 75, s. 15.

16. The institution placing a person under confinement pursuant to a judgment referred to in section 9 must, at the time the person is placed under confinement and after each examination report required by section 10, give the person a document in conformity with the schedule.

If the person under confinement is unable to understand the information contained in the document, the institution shall transmit a copy of it to the person qualified to give consent to the confinement. Should there be no such person, the institution shall make reasonable efforts to transmit the information to a person showing a special interest in the person under confinement.

1997, c. 75, s. 16.

17. A person under confinement must be allowed to communicate freely and confidentially with the persons of his choice, unless the attending physician or a specialized nurse practitioner decides, in the interest of the person under confinement, to prohibit or restrict certain communications.

A prohibition or restriction as to communication can only be temporary. It must be set out in writing and contain reasons, and it must be given to the person under confinement and noted in his record.

No restriction may, however, be imposed on communications between the person under confinement and his representative, the person qualified to give consent to the care required by his state of health, an advocate, the Public Curator or the Administrative Tribunal of Québec.

1997, c. 75, s. 17; 2020, c. 6, s. 19.

18. The person under confinement must be immediately informed by the institution of the end of the confinement.

1997, c. 75, s. 18.

19. The institution must, in the case of a minor, give the person having parental authority or, if there is no such person, the tutor, or in the case of a person of full age who is represented, the mandatary, tutor or curator, notice of

(1)  the decision of a physician to place the person under preventive confinement pursuant to section 7;

(2)  the necessity for continued confinement, after each of the examinations required by section 10;

(3)  any application presented to the Administrative Tribunal of Québec under section 21 of which the institution has been informed;

(4)  the end of the confinement.

Notice must be given in writing, except a notice under subparagraph 1 of the first paragraph.

1997, c. 75, s. 19.

DIVISION II ADMINISTRATIVE TRIBUNAL OF QUÉBEC

20. The institution in which a person is under confinement must inform the Administrative Tribunal of Québec, without delay, of the conclusions of each of the psychiatric examination reports required by section 10, and of the end of the confinement.

1997, c. 75, s. 20.

21. Any person who is dissatisfied with the continuance of confinement or with a decision made under this Act, with regard to himself or to a person that he represents or in whom he shows a special interest, may contest the continuance of confinement or the decision before the Administrative Tribunal of Québec. A letter to the Tribunal from the person under confinement setting out the subject and grounds of the contestation constitutes a motion within the meaning of section 110 of the Act respecting administrative justice (chapter J‐3).

The Tribunal may also act on its own initiative to review the continuance of confinement or a decision made under this Act with regard to any person under confinement.

A proceeding before the Tribunal, or the intervention of the Tribunal on its own initiative, does not suspend confinement or the execution of the decision, unless a member of the Tribunal decides otherwise.

1997, c. 75, s. 21.

22. An institution must, when so required by the Tribunal, forward to it the complete record of a person under confinement.

1997, c. 75, s. 22.

CHAPTER IV MISCELLANEOUS PROVISIONS

23. Any institution which, owing to its organization or resources, is unable to provide for a psychiatric examination or place a person under confinement, must immediately direct any person for whom such services are required to another institution equipped with the necessary facilities.

1997, c. 75, s. 23.

24. The Minister of Health and Social Services is responsible for the administration of this Act.

1997, c. 75, s. 24.

The Minister responsible for Social Services exercises the functions and responsibilities of the Minister of Health and Social Services provided for in this Act. Order in Council 1652-2022 dated 20 October 2022, (2022) 154 G.O. 2 (French), 6520.

CHAPTER V AMENDING AND FINAL PROVISIONS

25. (Omitted).

1997, c. 75, s. 25.

26. In any Act, regulation, order in council, order, contract, agreement or other document, any reference to the Mental Patients Protection Act (chapter P‐41) or to a provision thereof is deemed to be a reference to this Act or to the equivalent provision of this Act.

1997, c. 75, s. 26.

27. Until 1 April 1998, a reference to the Administrative Tribunal of Québec in this Act shall be read as a reference to the Commission des affaires sociales.

1997, c. 75, s. 27.

28. (Omitted).

1997, c. 75, s. 28.

29. (Omitted).

1997, c. 75, s. 29.

30. (Omitted).

1997, c. 75, s. 30.

31. (Omitted).

1997, c. 75, s. 31.

32. (Omitted).

1997, c. 75, s. 32.

33. (Omitted).

1997, c. 75, s. 33.

34. (Amendment integrated into c. C-25, a. 26).

1997, c. 75, s. 34.

35. (Amendment integrated into c. C-25, a. 36.2).

1997, c. 75, s. 35.

36. (Amendment integrated into c. C-25, heading of Sec. II of Chap. II of Title II of Book V).

1997, c. 75, s. 36.

37. (Amendment integrated into c. C-25, a. 778).

1997, c. 75, s. 37.

38. (Amendment integrated into c. C-25, a. 779).

1997, c. 75, s. 38.

39. (Amendment integrated into c. C-25, a. 780).

1997, c. 75, s. 39.

40. (Amendment integrated into c. C-25, a. 781).

1997, c. 75, s. 40.

41. (Amendment integrated into c. C-25, a. 783).

1997, c. 75, s. 41.

42. (Amendment integrated into c. C-25.1, a. 214).

1997, c. 75, s. 42.

43. Until 1 April 1998, section 25.1 of the Act respecting the Commission des affaires sociales (chapter C‐34) is amended by replacing the words “is confidential” by the words “and the records forwarded to it pursuant to article 782 of the Code of Civil Procedure (chapter C‐25) or pursuant to the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (Statutes of Québec, 1997, chapter 75) are confidential”.

1997, c. 75, s. 43.

44. (Amendment integrated into c. C-81, s. 14).

1997, c. 75, s. 44.

45. (Amendment integrated into c. M-19.2, s. 10.2).

1997, c. 75, s. 45.

46. (Amendment integrated into c. N-2, s. 120).

1997, c. 75, s. 46.

47. (Amendment integrated into c. P-29, s. 1).

1997, c. 75, s. 47.

48. (Amendment integrated into c. R-0.2, s. 37).

1997, c. 75, s. 48.

49. (Amendment integrated into c. S-4.2, s. 118.1).

1997, c. 75, s. 49.

50. (Amendment integrated into c. S-4.2, s. 431).

1997, c. 75, s. 50.

51. (Amendment integrated into c. S-5, s. 1).

1997, c. 75, s. 51.

52. (Amendment integrated into c. S-5, s. 2).

1997, c. 75, s. 52.

53. (Amendment integrated into c. S-5, s. 86).

1997, c. 75, s. 53.

54. (Amendment integrated into c. S-5, s. 150.1).

1997, c. 75, s. 54.

55. (Amendment integrated into c. T-11.01, s. 3).

1997, c. 75, s. 55.

56. (Amendment integrated into c. J-3, s. 18).

1997, c. 75, s. 56.

57. (Amendment integrated into c. J-3, ss. 22-23).

1997, c. 75, s. 57.

58. (Amendment integrated into c. J-3, s. 103).

1997, c. 75, s. 58.

59. (Amendment integrated into c. J-3, s. 119).

1997, c. 75, s. 59.

60. (Amendment integrated into c. J-3, Sch. I).

1997, c. 75, s. 60.

61. (Omitted).

1997, c. 75, s. 61.

SCHEDULE

INFORMATION DOCUMENT ON THE RIGHTS OF, AND REMEDIES AVAILABLE TO, A PERSON UNDER CONFINEMENT

(Act respecting the protection of persons whose mental state presents a danger to themselves or to others, s. 16)

..............

(name of person under confinement)

You have been placed under confinement pursuant to a court decision based on two psychiatric examination reports. You have legal rights:

(1) You have the right to be transferred to another institution, if your attending physician is of the opinion that such a transfer presents no serious and immediate risks for you or for others, and if the organization and resources of that institution allow it to receive you.

(2) You have the right to require that you be released from confinement without delay if a psychiatric examination report, confirming the necessity of continuing your confinement, has not been produced within 21 days after the court decision and at least once every three months thereafter.

In your case, the court decision was made on .............. and psychiatric examination reports were produced on the following dates:

..............

(date of each psychiatric examination report produced)

(3) You are required to submit to the psychiatric examinations referred to in paragraph 2. However, you may categorically refuse any other examination, care or treatment. If you do, your decision must be respected by the institution and by your physician, except if the examination or treatment was ordered by a judge, or in the case of emergency care or personal hygiene.

(4) Even though you are under confinement, you may communicate confidentially, orally or in writing, with any person of your choice. However, your attending physician may decide, in your own interest, to prohibit you from communicating with certain persons or to impose restrictions on your communications. In such a case, the prohibition or restriction can only be temporary, and the physician’s decision must be given to you in writing and set out the reasons on which it is based.

Your physician may not, however, prevent you from communicating with your representative, the person qualified to give consent to your care, an advocate, the Public Curator or the Administrative Tribunal of Québec.

(5) If you disagree with a decision made to continue your confinement, or with any other decision made in your respect, you may refer your case to the Administrative Tribunal of Québec.

..............

(address)

.............. ..............

(telephone number) (fax number)

This is how you proceed:

(a) you yourself may write to the Tribunal or ask a family member or your tutor, curator or mandatary to write on your behalf;

(b) you must explain in your letter, to the best of your ability, why you disagree with the continuance of confinement or the decision made in your respect;

(c) your letter will constitute your application to the Tribunal, and must be sent to the above address within 60 days of the decision with which you disagree, but if you miss this deadline, the Tribunal may still decide to hear you if you give reasons to explain your delay;

(d) the Tribunal may order your release from confinement or overturn the decision made concerning you, but must meet with you before reaching its decision;

(e) you have the right to be represented by a lawyer at the meeting with the Tribunal, and to produce witnesses.

(6) You must be released from confinement

(a) as soon as a certificate concluding that confinement is no longer justified has been issued by your physician;

(b) if a psychiatric examination report is not produced within the time limits set out in paragraph 2, upon the expiry of those time limits;

(c) on the expiry of the period of confinement fixed in the judgment;

(d) upon a decision to that effect by the Administrative Tribunal of Québec; or

(e) upon an order to that effect from a court of justice. The institution where you are being kept under confinement must inform you immediately of your release from confinement.

1997, c. 75, Schedule.

REPEAL SCHEDULE

In accordance with section 9 of the Act respecting the consolidation of the statutes and regulations (chapter R‐3), chapter 75 of the statutes of 1997, in force on 1 April 1999, is repealed, except sections 28 to 33 and 61, effective from the coming into force of chapter P-38.001 of the Revised Statutes.