2024 QCCS 132, 2024 QCCS 132

McGill University Health Centre c. E.M. 2024 QCCS 132 SUPERIOR COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL N° : 500-17-128065-235 DATE : January 22, 2024 ______________________________________________________________________ BY THE HONOURABLE CHANTAL CHATELAIN, J.S.C. ______________________________________________________________________ McGILL UNIVERSITY HEALTH CENTRE and Dr. CLAUDINE LAMARRE Applicants v. E. M. Defendant and G. M. & M. M.

Impleaded parties ______________________________________________________________________ JUDGMENT (Authorization to provide medical care) ______________________________________________________________________ I. INTRODUCTION [ 1 ] The Applicant, McGill University Health Centre ( Health Centre ), applies to the Court for authorization to administer care to Ms. E. M. ( Madam ). The care that the Health Centre wants to administer is a spinal tap test (i.e., a lumbar puncture). [ 2 ] Madam was present at the hearing and represented by a lawyer. She contests the Application. [ 3 ] The brothers of Madam, Messrs.

G. and M. M. were also present at the hearing, and they support the Application. It should be noted at the outset that all parties agree that Madam’s brothers are persons entitled to give a substituted consent to care for Madam pursuant to

section 15 of the Civil Code of Québec . [1] [ 4 ] Essentially, the reason alleged by the Health Centre for the proposed care is the following:

a) Madam is a 60-year-old woman who had been receiving psychiatric services from the Health Centre for many years. She is suffering from schizoaffective disorder for 35 years and intellectual disability since childhood;

b) In 2019, she developed Normal Pressure Hydrocephalus ( NPH ) which is a physical condition where there is an accumulation of cerebrospinal fluid in the brain’s ventricles, leading to enlarged ventricles. Madam is affected by classic symptoms associated with this condition, notably gait disturbance, cognitive decline, and urinary incontinence;

c) She is now wheelchair-bound as a result of NPH. However, she has expressed the desire to walk again;

d) The Health Centre proposes to conduct a spinal tap test, a generally safe and common procedure which essentially consists in removing excess cerebrospinal fluid by way of a lumbar puncture. The expected outcome of this procedure is by nature temporary because the fluid will regenerate in a few days. However, according to the Health Centre, the test would allow to better determine if the eventual permanent removal of the fluid could improve the condition of Madam, namely by potentially allowing her to walk again;

e) If the spinal tap test yields positive results, the Health Centre would then reassess her condition and determine whether they would propose a more permanent solution, which would consist of a ventriculoperitoneal shunt ( VP shunt ), a brain surgery which is a more invasive and riskier procedure. [ 5 ] In sum, the Health Centre is proposing a two-step process to relieve Madam of some of the symptoms of her NPH, and the current application deals only with the first of these two steps. As indicated by Dr.

Sirhan, neurosurgeon, in his letter signed January 18, 2024, the spinal tap test “would enable us to better predict the likelihood of her walking again after a VP shunt, as well as better quantify

the risks and benefits of going forward with a VP shunt.” [ 6 ] It is acknowledged that the proposed care does not guarantee that Madam could walk again considering that she has NPH since 2019 and there is a possibility that the symptoms are irreversible.

However, without the care, there is no prospect at all of her ever walking again. [ 7 ] According to the Health Centre, the proposed spinal tap test is thus required by Madam’s state of health to determine whether a VP shunt should be considered, and should be conducted even if she refuses this treatment. [ 8 ] The Health Centre’s evidence is based on the expert reports of Dr. Julie Desmarais, psychiatrist (P-1) and of Dr. Denis Sirhan, neurosurgeon (P-2), who both testified at the hearing.

Madam and her brother Michael also testified. [ 9 ] The following are the applicable legal principles. [ 10 ] At the outset, it is established that every person, by law, has the right to personal integrity and freedom [2] and that no person may be made to undergo any treatment of any nature without their consent, except otherwise provided by the law, such as with the consent of a person entitled to give a substituted consent or with the authorization of the Court when such authorization is required by law and when the conditions necessary for granting this authorization are satisfied. [3] [ 11 ] The Court of Appeal summarizes as follows the rationale for obtaining the authorization of the courts to provide care to any person: [4] [19] Treatment orders constitute a violation of the fundamental rights to liberty and to the integrity of the person.

For this reason, the legislature has entrusted the courts with the duty of ensuring that the law is respected in such matters.

As this Court highlighted in the decision F.D. , the parameters of this review are the following: [26] The Charter of Human Rights and Freedoms , the Civil Code of Québec , the Act Respecting Health Services and Social Services and the Code of Civil Procedure establish the parameters for considering and adjudicating a motion for authorization to administer care. [27] In such matters, it is essential not to lose sight of the following: ➢ Every person is inviolable and is entitled to the integrity of his person; ➢ No one may be made to undergo care except with his consent; ➢ No one (judge, court or physician) may force a person capable of consenting to undergo care that the person refuses, even if it would be in his interest to receive care and even if refusal is likely to lead to his death; ➢ Nowhere does the legislator confer jurisdiction upon a judge or a court (or anyone else) to intervene with respect to the appropriateness of a decision made by a person capable of consenting – choice is respected, no matter what that choice may be; ➢ The jurisdiction granted to a judge or court at

article 16 C.C.Q. is applicable to situations in which the individual is incapable of consent and in no other situation; ➢ Exercise of the jurisdiction that the legislature grants a judge or a court at

article 16 C.C.Q. is dependent upon the essential holding, which must be made by a judge or court (where, as here, the person in question is an adult), that the person in question is incapable of consent and categorically refuses care. [28] In short, through

article 16 C.C.Q. , the legislature has entrusted judges and courts, rather than medical professionals, with the responsibility of making choices in the name of the incapable person and has set out at

article 12 C.C.Q. the parameters within which this jurisdiction may be exercised, namely: ➢ in the sole interest of that person; ➢ as far as possible, in compliance with any wishes the latter may have expressed; ➢ by ensuring that the care is beneficial; ➢ that the care is advisable in the circumstances; ➢ and that the risks incurred are not disproportionate to the anticipated benefits. [References omitted] [ 12 ] The case law is clear.

For the Court to grant authorization to submit a person to proposed care, a two-step legal analysis must apply. [ 13 ] At the first step , the Court must be satisfied that it has jurisdiction to render the judgment that the Applicant seek s. [5] Without jurisdiction, the Court simply cannot render any order on an application for authorization to care. To determine whether the Court has jurisdiction, a two-prong analysis is required: [6]

a) first, the incapacity of the person must be established; and

b) second, the person must categorically refuse to submit to the care being proposed or , in the absence of a categorical refusal,

there must be an impediment to obtaining substituted consent or the unjustified refusal to give it by the person authorized to do so. [ 14 ] If, and only if, the first step is satisfied and the Court has jurisdiction, then at the second step of the analysis imposed by the case law, the Court, in the exercise of its jurisdiction, must assess the legality of the proposed treatment plan in accordance with the factors set out at

article 12 of the Civil Code of Québec . The case law has identified a series of questions to be addressed in order to assess the legality of a treatment plan. It is at this second step that courts typically inquire as to

i) whether the treatment is required and, if so, if is it described in sufficient detail, ii) whether the benefits of treatment outweigh the adverse effects, iii) what should be the duration of the order, and iv) whether the other conclusions sought should be granted. [ 15 ] Here, it will not be necessary to consider the second stage of the test since the Court concludes, at the first stage, that it does not have jurisdiction to make the order sought. [ 16 ] Indeed, although the Court is convinced of Madam’s incapacity to consent to treatment, the Health Centre has not established the existence of a categorical refusal to the proposed spinal tap test. [ 17 ] Regarding Madam’s incapacity , the expert evidence as well as some aspects of Madam’s testimony establish in a preponderant manner that she suffers from an illness that affects her judgment in a significant way, notably as it concerns the appropriate treatment for her state of health. [ 18 ] Her psychiatric and mental condition is such that she unfortunately does not have the degree of insight necessary to decide on her own how to treat the illnesses that afflict her, namely NPH. [ 19 ] In

summary, with respect to the incapacity criteria, the Court concludes that Madam is incapable of understanding and recognizing the nature of her illness, the nature and purpose of the treatment plan being proposed and its consequences, and the benefits and risks associated with the treatment plan. [ 20 ] Madam is thus incapable of giving or refusing consent to care. [ 21 ] However, the evidence does not support the finding of the existence of a categorical refusal to the proposed spinal tap test.

It should be remembered that the existence of a categorical refusal is an essential condition for the jurisdiction of the Court. [ 22 ] Rather, the evidence is to the effect that Madam simply cannot or will not positively give her consent to the care. This is not the same thing as categorically refusing care. She states, repeatedly, that she is thinking about the proposed treatment and that she is scared. Although she has maintained that ambivalent position for months now, even when pressed with questions, she never says that she refuses the care, and even less that she refuses it categorically.

Further, in and of itself, the fact that Dr. Desmarais opines that Madam suffers from pathological ambivalence also does not equate with categorical refusal. [ 23 ] In her expert report, Dr. Desmarais justifies her opinion as to the existence of a categorical refusal as follows: “The patient does not categorically refuse when we discuss in clinic but we, the treating team and her brothers, do not think that she will assent to have the procedure on the day it is scheduled. There is a high probability that she will say no at the time of the procedure.” That may or may not be so, we simply do not know.

What we do know however is that, at this time, no categorical refusal has been expressed by Madam. One cannot conclude that the Court has jurisdiction based on the hypothesis presented by Dr. Desmarais. [ 24 ] In law, the fact that Madam does not formally and positively consent to the care as well as the fact that she is apparently incapable of giving consent, does not equate with a categorical refusal, which, again, is the applicable legal condition for the Court’s jurisdiction. [ 25 ] As the authors Kouri and Philips-Nootens indicate, the categorical refusal to which

article 16 of the Civil Code of Québec refers must result from an organized desire to refuse to receive the treatment offered. They write that the refusal “ne doit laisser aucun doute quant à son existence ”. They add that “(…) si le « refus » du patient n’est pas le résultat d’une volonté organisée , il ne peut être qualifié de refus catégorique. Dans ce cas, le seul consentement du représentant ou du proche exprimé en conformité avec les principes énoncés à l’

article 12 C.c.Q. suffirait”. They conclude that “l’inapte doit avoir une pensée suffisamment organisée afin d’être conscient qu’il exprime un refus à l’égard du traitement proposé”. [7] [ 26 ] In such circumstances, and considering that Madam’s brothers are in a position to provide a substituted consent, the Court does not have jurisdiction to render the requested order. [ 27 ] In short, consent to the proposed care for Madam must be obtained by substituted consent, and not from the Court. [ 28 ] It is possible, as anticipated by Dr.

Desmarais, that Madam categorically refuses the care on the day of the procedure. However, this possibility has not yet crystallized and cannot establish, at this stage, the jurisdiction of the Court. If it turns out that Madam categorically refuses, the Health Centre could reassess its position and determine whether it will file a fresh application. [ 29 ] This can certainly appear cumbersome and result in inconveniences for the Health Centre and Madam’s brothers. Dr.

Desmarais indicated that the Health Centre does not want monopolize medical staff if it turns out that Madam categorically refuses on the day of the care. She indicated that the Health Centre would be more comfortable going in the surgery room with an order in hand. [ 30 ] The Court is sensitive to the administrative difficulties that may ensue as invoked by Dr. Desmarais at the hearing, which incidentally can happen even with a person that is not incapable. However, the Health Centre's position in this regard, although undoubtedly well-intentioned, is not consistent with the state of the law.

The Court of Appeal has reiterated numerous times that the existence of administrative constraints cannot override fundamental rights nor establish the jurisdiction of the Court. [8] [ 31 ] As indicated by Justice Immer in a recent matter: [9]

[61] Le Tribunal ne doute nullement que le CIUSS désire agir dans le meilleur intérêt de la défenderesse. L’ordonnance recherchée est évidemment plus pratique pour le CIUSS. Le processus de refaire une demande d’autorisation est clairement exigeant pour le CIUSS.

Cela dit, tel que le souligne la Cour d’appel, la commodité pour le milieu médical ou hospitalier n’est pas un critère pertinent, malgré toutes les contraintes avec lesquelles il doit composer. [ 32 ] It is also worthwhile to recall the teachings of the Court of Appeal stated in the seminal case of F.D. v Centre universitaire de santé McGill, (Hôpital Royal-Victoria) : [10] [34] En effet, s’il est heureux, souhaitable et requis qu’un juge se préoccupe de l’usage raisonné et raisonnable des ressources judiciaires et médicales ainsi que du temps que doivent consacrer les témoins appelés à collaborer à l’administration de la justice et de leurs contraintes, jamais une telle préoccupation ne justifiera que les droits de la personne vulnérable dont on envisage d’affecter les droits fondamentaux que sont la liberté et l’inviolabilité de sa personne en souffrent. [ 33 ] In light of the above determinations, it is not necessary to assess the adequacy or legality of the proposed treatment plan. [ 34 ] However, the Court offers the following observations. [ 35 ] First, although the application states that the spinal tap test is to be conducted by a neurosurgeon (par. 19a)), Dr.

Sirhan confirmed at the hearing, following questions by the Court, that the spinal tap test is done not by a neurosurgeon, but by a radiologist.

This inconsistency raises questions as to whether the proper explanations were given to Madam and whether the proposed care was described with sufficient precision. [ 36 ] Second, as previously indicated, the proposed care is step one of a two-step medical process, i.e., first the spinal tap test and then, depending on the result of that test, an assessment of the probability of a VP shunt having a significant positive impact on her symptoms and, potentially, a recommendation to insert a VP shunt. [ 37 ] However, there was no evidence adduced at the hearing as to whether a surgeon would be willing to submit Madam to a VP shunt considering her incapacity to assent to such a procedure.

To the contrary, Dr. Sirhan indicated that he would typically not conduct a VP shunt if the patient does not assent. It would thus appear to be in Madam’s best interest to ascertain whether a surgeon would indeed be willing to conduct such a procedure should the spinal tap test results be positive.

Otherwise, the spinal tap test, even if it yields temporary positive results, would simply be useless and would thus neither have beneficial effects nor be necessary for the state of health of Madam. [ 38 ] Third, the conclusions of the Application request the immediate execution of the orders sought notwithstanding any appeal. Considering the state of the law respecting such requests and the fact that Dr. Sirhan testified that the proposed plan, including a VP shunt, is not a life-changing nor urgent procedure, the Court questions why the execution notwithstanding appeal was being sought.

The inclusion of this conclusion in the Application suggests that the Health Centre simply used a boilerplate request, which is unfortunate considering the fundamental rights at issue. FOR THESE REASONS, THE COURT: [ 39 ] DISMISSES the Application; [ 40 ] WITHOUT LEGAL COSTS . CHANTAL CHATELAIN, J.S.C. Me Nadim Elfangary McGill University Health Centre For the Applicants M e Simon Lacoste Legal Aid For the Defendant G. M. M. M. Impleaded parties

Date of hearing: January 19, 2024