The Every Lawyer

Garde Préventive - Tory Hibbitt & Dr. Vanessa Cardy MD

Episode Summary

Julia welcomes Tory Hibbitt, past chair of the CBA's Health Law Section and Dr. Vanessa Cardy MD, to discuss Garde Préventive and recent changes to Alberta's Mental Health Act.

Episode Notes

Case law on the Every Lawyer.

Julia welcomes Tory Hibbitt, past chair of the CBA's Health Law Section and Dr. Vanessa Cardy MD, to discuss Garde Préventive and recent changes to Alberta's Mental Health Act.


Episode Transcription

Garde Preventive

[Start of recorded material 00:00:01]

Tari:                  Oh, can you hear me OK?

Vanessa:           Just want to make sure my video didn’t – my audio didn’t cut off – I heard a funny noise, and I’m like what? [Laughs]

Julia:                 No, we hear you very well.

Vanessa:           OK, that’s perfect.

[Over-talking 00:00:13]

Julia:                 OK. Hi, I’m Julia Tetrault-Provencher, and thanks for listening to The Every Lawyer.


Presenter:         This is The Every Lawyer, presented by the Canadian Bar Association.

Julia:                 In some of my worst nightmares, I’m held prisoner in a horror-scape [unintelligible 00:00:39] hospital, with evil practitioners holding me against my will. I think it’s something we all find quite terrifying, the thought of losing [our signing 00:00:51] and becoming a danger to others. Like so many things that we find terrifying, just daily business in the ER – well I believe so – I have no idea, but that’s what I think. So today, we have both a lawyer and a medical doctor with us, Tory Hibbitt and Vanessa Cardy – Dr Cardy that we already had the pleasure to be with in another episode. We are talking about Garde preventive, or as it is called in English, The Forming of Patients, which I must say I didn’t know before doing this podcast today that it was a term. From the French it’s sort of clear what it is about, but in the English expression it’s a little out of the ordinary, I feel. Where does the expression Forming of Patients come from.

Tari:                  Well I am certainly not an entomologist, but I would suggest that this likely a reference to the process of obtaining formal certifications that are required to voluntarily detain a patient. Those certificates are colloquially referred to as forms, and hence the expression Forming a Patient.

Julia:                 Oh I see, thank you. So Tory Hibbitt please meet Dr Vanessa Cardy, and Dr Cardy meet Tory Hibbitt.

Tari:                  Thank you for having me.

Vanessa:           Yes, thank you so much for having me back and joining the program again. 

Julia:                 Vanessa is a family doctor, emergency room doctor, and a palliative care physician working in Northern Quebec. Tory Hibbitt is a lawyer at Miller Thompson, practicing in health law, and the past Chair of the CBA Health Law Section. So thank you both for joining us today – I think it will be a very interesting conversation. Our basic question is, in the case of Garde or forced hospitalization, which can I call it like that as well?

Vanessa:           Yeah, it’s not necessarily hospitalization – just because keeping someone in the emergency room isn’t the same as hospitalizing them. So I would just say – I mean I’m probably being overly picky –

Julia:                 No, no, it’s fine – we love being picky [laughs].

Vanessa:           I was going to say, because I’m talking to a lawyer, [unintelligible 00:02:46].

Julia:                 Exactly, I was about to say the words are very important. [Laughs] So maybe I should just keep it with Forming a Patient?

Vanessa:            Yeah, just because forced hospitalization is more like Garde, which is the thing that comes later – 30 days and all that. So I would say just say forming.

Julia:                 In the case of forming a patient, what happens when the law cannot be applied for logistical reasons? It was inspired by this question from our correspondent, following our work together on an earlier episode that we have on The Every Lawyer. Before the advent of the Telehealth video appointments it was not always possible to arrange psychiatry follow-up in a rural setting within the timeframe laid out by the law. There simple wasn’t the staff or the technology. So were we breaking the law by doing so? That’s a good question. So Tory, are they breaking the law by doing so?

Tari:                  Well, I cannot speak to the law in Quebec, but in Alberta the short answer is yes. This is not an area with much wriggle room, so to speak, [either you’re 00:03:51] following the process prescribed by the Statute, or you are in contravention of the law. For example, it may happen where the initial admission certificate expires before the second certificate can be obtained, in which case the process would need to be either discharge the patient or re-initiate the certification process to restart the clock and obtain the second certificate required for involuntary admission within the 24 hours [cross-talking 00:04:16].

Julia:                 Dr Cardy, you are working in Northern Quebec, you cover a geographical area approximately the size of Western Europe, how often does the need to form patients arise?

Vanessa:           Unfortunately it comes up quite a lot in an emergency department that a patient is going to be deemed to be a threat to themselves or others. But fortunately patients will often actually accept to stay. So we don’t always need to go down the whole process of officially forming them.

Julia:                 Could you describe some typical cases or situations?

Vanessa:           It’s hard to say which examples are typical or atypical, but I can certainly go over some common situations. One very common one that we see happens with both males and females, but I’ll use the example of a female here. So a young female is intoxicated, she’s at a party, she has an argument with her partner. She leaves the party, goes home and starts posting on social media that she’s going to kill herself because she’s so upset by the situation. Someone on social media notifies the police and they bring her to the hospital. She’s intoxicated and goes between saying that she’s going to hurt herself to then a few seconds later, promising up and down that she never wanted to hurt herself. We see that she isn’t safe to be sent home in this state as we cannot reliably assess her safety because she is intoxicated. And when people are intoxicated they tend to be more impulsive. So we inform her that we would like her to stay for her own safety.

                          You know she’ll often get grumpy about this and sometimes people will get pretty angry, but usually she’ll accept to stay. We’ll write an order in [the chart 00:05:43] asking for a sitter and that, if she wants to leave, she must be re-assessed by a doctor. So if she runs away before being assessed by a doctor, if she decides she wants to leave, the police are notified, they try to bring her back, and then when she’s brought back we have to form her, put her under [GALD], if she is still impulsive and a danger to herself or others. If she’s a minor then we have to inform her parents that we’re keeping her, but we don’t have to do into more details than that. So the Quebec law is different than the Alberta law in that way because we still have the sort of wiggle room, I would say, with this intoxication diagnosis. 

                          Another common scenario would be a young man who is maybe brought in by family members because he’s been acting strange lately. They’ve perhaps noticed some changes for a while of him getting perhaps more and more withdrawn over say several months, spending more and more time alone, perhaps becoming more and more dishevelled. There might be some concomitant drug use that has started recently – that’s commonly seen. The patient might be exhibiting signs of paranoia and is perhaps complaining of things like being followed, or monitored in some way. He might be hearing voices that are directing him to self-harm, or perhaps to harm others. Notably this paranoid state persists even when the effects of any drugs that he may have used have actually worn off, and the patient is really deemed to be a danger to themselves or others. 

                          A danger to themselves, because they are potentially too disorganised to care for themselves, or because they might go through with acts of self-harm if directed by those voices. Or they could be a danger to others in society if those voices are directive, and if they lack the insight to understand the difference between reality and hallucination. So in this case the patient would need to be placed under Garde if they don’t accept to stay, as they are a potential danger and not safe to take care of themselves.

                          Now perhaps a less typical, but potentially more dangerous case would be the case of an older male patient, say in his late 50s who is brought to the emergency room after their family doctor felt they were showing concerning signs during a follow-up appointment. The patient would have perhaps a history of depression and low mood. He could be socially isolated as he was recently widowed and is currently unemployed. This is sort of a classic scenario that we see. When the GP asks him about suicidal ideas, he is kind of cagey and not particularly open, so the GP sends him to the emergency room for assessment. So we see him and try to get a sense of whether or not he’s suicidal at this time, and we will ask him quite openly, are you having thoughts of suicide? And if he answers yes, we ask him to describe those thoughts, and we ask him if they’re simply thoughts or if he has plans. And if he has a plan, we ask him what he would do. We get into very specific details, saying would you try and take pills, would you hang yourself, would you use a firearm? 

                          We get really into the nitty-gritty, and we ask him if he has any intention of carrying out the plans. Because sometimes people will have quite developed plans but have no intent of doing it. And then we ask him what things have prevented him from carrying out the plan to date, and by doing so we’re looking for protector factors. Because someone could have chronic suicidal ideas but it doesn’t mean they’re actually going to go through with a suicidal gesture or act. Sometimes you’ll have a patient who is willing to reveal all of that information and yet they’re also willing to stay in the hospital, because feeling this way and having these plans is so upsetting to them and they want help, they want to stay. And in those cases, we don’t have to put them under Garde.

                          In other cases the patient might have made extensive plans to complete a suicide, be quite committed to their plans, or they will not divulge their plans, which is actually highly concerning, and they will refuse to stay of their own accord. So in any of those cases, if the patient refused to stay, then we would put them under Garde, which in Quebec allows them to be kept against their will but only for a short period of time. Their case must be reviewed within 72 hours, ideally by a psychiatrist, and a decision is made to lift the Garde, or to keep the patient for longer to undergo an official psychiatric assessment. And now, when we have the patients put under Garde we have to make sure that they are told of their rights, that their information about the legal recourse that they have, and what the term Garde means and what they can expect in the coming days.

Julia:                 Okay, so I kind of feel it’s a real rabbit hole – it’s a really interesting legal issue we have now, [as we’ve all seen this 00:09:41] episode, it is also a constitutional issue since, in some circumstances, it fails to respect the right to liberty of a person, and can we go as far as saying that it violates the right not to be arbitrarily detained. Tari, could you walk us through [applicable legislation 00:10:00] here?

Tari:                  Absolutely. So Alberta’s Mental Health Act was amended in 2020 and 2021, and I’ll highlight a few key amendments and provide an overview of the current law [on forming a patient 00:10:12]. But before I do, I think it makes sense to start with a brief review of the Court’s decision in [JH 00:10:19], which is the decision that prompted the legislative amendments. So JH, a 49-year-old construction worker at the time, was involuntarily detained under the Mental Health Act in September 2014. He was initially admitted for treatment of complications arising from injuries sustained during a hit-and-run incident, including infection and sepsis, and he also suffered from a liver condition and deliria, which had [resulted 00:10:48].

                          After surgery to his knee, he recovered to an extent over the next 20 days, and then he sought to discharge. However, instead he was certified under the Mental Health Act. A Form 1 Certificate was issued on the basis that JH was disoriented, lacked insight into the seriousness of his medical condition, and he [unintelligible 00:11:09] that he wanted to leave the hospital and he also was noted to have an unsteady gait, which is how you walk, I guess, with an injured leg.

                          The second Form 1 was issued the next day and again noted that JH lacked insight to his medical needs, with a note about alcohol-related cognitive impairment. So under Section 7, Sub-Section 1 of the Mental Health Act, these two forms provided sufficient authority to care for, observe, assess, treat and detain and control JH for a period of one month. And a series of renewal certificates were later issued to continue JH’s involuntary detention and JH was ultimately detained for a period of nine months. When JH was unsuccessful in having [his renewal 00:11:55] certificates cancelled by the Review Panel, he filed an Originating Application and a Notice of Appeal of the Review Panel’s decision, to challenge his certification. He claimed that it breached his Section 7, 9 and 10 Charter Rights. 

                          So just to cover off what those rights are. Section 7 of the Charter is the right to life, liberty and security as a person, and the right not to be deprived thereof except in accordance with the Principles of Fundamental Justice. Section 9 is the right not to be arbitrarily detained or imprisoned. And Section 10 says that the rights of a person on arrest or detention, which includes the right to be promptly informed of the reasons for detention, the right to counsel without delay, and to be informed of that right, and the right to have the detention determined and to be released if the detention is unlawful. So on 15 May 2015, the Court cancelled JH’s certifications, finding that AHS did not meet its onus to show that JH met any of the criteria under the Mental Health Act. And the citation of that decision, for those interested, is [2015 AAQB 316 00:13:07]. 

                          However, the Charter issues are actually adjourned to a subsequent hearing, and in that hearing, JH challenged the constitutionality of various sections of the Alberta Mental Health Act. And in its 2019 decision, the Court found that JH’s Section 7, 9 and 10 Charter rights were breached and the citation for that decision is [2019 PBQB 540 00:13:35]. And in that decision, the Court specifically help that the Certificates in this case were vague and incomplete, and therefore they did not satisfy the provisions under the Mental Health Act, meaning JH’s detention was arbitrary. JH was not provided prompt or proper notice of the reasons for his detention as required by Section 14 of the Mental Health Act. And JH was not promptly informed of his right to counsel, nor given assistance on how to exercise that right. While detained, JH was treated with certain medication without his consent, without a formal determination that he lacked competence to make treatment decisions. And prior to the Review Panel’s hearing, JH had not been provided his complete medical records.

                          So in considering the constitutionality of the Mental Health Act, the Court found that certain detention provisions were of [no cause or effect 00:14:30] for the encroachment of Sections 7, 9, 10A and B of the Charter. And the Court suspended its declaration for 12 months to allow the legislature [time 00:14:41] to bring the Mental Health Act into compliance with the Charter. For those interested in the precise [infringements 00:14:46], those are listed at paragraphs 302 of the Court’s decision. The Legislative amendments to the Alberta Mental Health Act were then introduced in direct response to this decision, and to ensure the Act’s compliance with the Charter.

                          So turning now to the Legislation part. Alberta’s Mental Health Act was updated in 2020, with the Legislature’s [passing 00:15:13] of Bill 17, The Mental Health [Amended Act 00:15:15] which received [Royal Assent 00:15:16] on 26 June 2020. And the majority of amendments came into force upon [proclamation 00:15:23] on 30 September 2020, but the definition of Mental Disorder did not take place until March 2021. The changes [I will cite 00:15:34] are only a few of the key changes – these are not exhaustive. So for a complete list of the changes, listeners can go to the AHS website, that’s at The first key change was made to the Admission and Renewal criteria and that’s at Section 2 of the Mental Health Act, which was updated to include a more specific criteria for admission and renewal. 

                          This section provides that an Admission Certificate may be issued when a qualified health professional examines a person and is of the opinion that the person, (a) is suffering from a mental disorder, (b) has the potential to benefit from treatment for the mental disorder, (c) is within a reasonable time likely to cause harm to others or to suffer negative effects, including substantial mental or physical deterioration, or serious physical impairment, as a result of, or related to the mental disorder. And (d) is unsuitable for admission to a facility other than as a [formal 00:6:49] patient. If all four of those criteria are met, the qualified health professional may issue an Admission Certificate within 24 hours of their assessment.

                          So the changes here are the changes to Sub-Section B, which is in addition to this section in the Act, and that is the potential to benefit from treatment for the mental disorder. So with this change, forms must now include a statement that the person can benefit from treatment. And Sub-Section C now requires that the harm likely to be caused by the patient will come within a reasonable time. And that this harm also be as a result of, or related to, a mental disorder. The term reasonable is not defined, but guidance of what this means will be drawn from Case Law and Review Panel decision. And essentially we know from other [experience 00:17:47] that this means what a reasonable person would find to be reasonable in the circumstances if presented with the same [information 00:17:56].

                          Then another significant change was the change to the definition of mental disorder, which means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity toe recognise reality, or ability to meet the ordinary demands of life. But with the amendment, this does not include a disorder in which the resulting impairment is persistent and is caused solely by an acquired or congenital irreversible brain injury. Further clarification of this definition is provided in the Mental Health Regulation and that sets out irreversible brain injury, which means a permanent disruption to the baseline function of the brain onto the structure of the brain caused, or likely caused, by an identifiable or probable acute external action including trauma or pathophysiological event within the body, including [any 00:18:58] hypoxic event, but does not include a permanent disruption caused, or likely caused, by a neurodegenerative disorder. Also, the term persistent means stable and unlikely to improve as a result of treatment.

                          So what does that mean [laughs]? With these amendments, when assessing whether an individual should be certified as a [formal 00:19:22] patient, health professionals must now consider whether the individual’s mental disorder is only due to the effects of an acquired or congenital brain injury, such as dementia. And they must also consider whether the impairment is persistent, i.e. whether it’s stable over time such as it represents the patient’s baseline function. Or if the impairment is likely, or unlikely, to improve as a result of treatment. The amendments also strengthen that patient rights are requiring that patients be provided with free and timely access to medical records, information about their right to legal counsel, including steps to access for legal counsel, and information about their right to contact the mental health patient advocate.

                          And the amendments also expand the role of the mental health patient advocate which includes connecting with patients who ask for help through review key records and ensure they receive complete information, working with the Alberta Health Services to ensure all patients and their families are provided with necessary information about their detention and their legal rights. And essentially just ensuring that the rights and responsibilities afforded to formal patients under the Mental Health Act are being upheld. And if not, to rectify this.

Julia:                 So thank you so much for that Tari – it doesn’t happen often that we get the chance to have a lawyer working on that and that can really explain to us, in a very clear manner. So you said at the beginning that it was for the Province of Alberta, and I’m wondering – so is it the same from province to province, for instance in Quebec, or do you know if it really differs?

Tari:                  Yeah, my practice is based primarily in Alberta and so this is really my area of focus, but I do understand that there are some differences between provincial statutes. So if you are looking at this space, that is something to look for and pay attention to.

Julia:                 And what about minors?

Tari:                  The Alberta Mental Health Act does not distinguish between adults and minors. So the procedure to form a minor is essentially the same, but one key difference is that the legal guardian is typically a parent. So ideally the practice would be for the health professionals to engage the parent early on in the process since they would be the one to consent to treatment on behalf of the minor.

Julia:                 OK, and I kind of feel like the new measures are way more protective, but do you have any more protective measures that you would like to raise that are there to protect the persons. Because we can imagine that these people are often in a situation of vulnerability, so any specific procedures to protect them?

Tari:                  Yeah, I would say first and foremost, the forming procedure itself and the treatment provided really is meant to protect the vulnerable patients. The amendments that I have reviewed, in addition to those that I haven’t been able to cover today, those are all meant to provide additional safeguards to protect vulnerable patients. So without reviewing them again in any detail, the safeguards are now meant to be built into the Legislation to really protect patients that are formed.

Julia:                 Yeah, I think the law is very strong, and I feel like even like strengthening the patient’s part, the medical records and information about their rights is very impressive – I’m very, very – I didn’t know that it was that protected. And maybe we’ll go back with Dr Cardy as well as what it might imply for her work. But I’d like to know, so because even if there are great measures for protection, what are the legal recourse that are available, if they are abused.

Tari:                  Yeah, so the legal recourse depends on the form of abuse that you’re referring to I suppose. If you mean abuse of a process to involuntarily detain a patient, then the patient’s first port of call would be the Mental Health Patient Advocate, and their role is really to assist them to understand the resources available, and their rights. There’s also the Mental Health Review Panel, and their role is to review the decision to form the patient. And in the event the Panel upholds the decision and they would like to challenge that further, then this can be appealed to the Court, as was done in the case of JH. And improperly detaining a patient could amount to unlawful detainment, which, as seen in the JH case, is grounds for commencing legal action for breach of the patient’s Charter Rights. And a [clinic 00:23:42] can also advance civil proceedings to seek damages to compensate them for any personal loss they may have suffered. However, if you’re also talking about abuse in terms of an assault, which would be, I would hope, quite rare but more serious, then a patient could commence criminal proceedings as well.

Julia:                 Again, so thorough, I really enjoy [laughs] – thank you so much. I love this kind of really in the details, I love that. Thank you very much.

                          Dr Cardy we’d also like to know how and when do the police get involved in all the examples you gave but also in your practice usually?

Vanessa:           So it’s probably – well it is definitely different in different jurisdictions and particularly in different sized communities. But I know that where I work, in a very small remote community, the police are quite often involved. They are often alerted to a suicidal comment made by someone on social media and then they go to check on the patient and bring them to the hospital. This sometimes happens within the space of 15/20 minutes. That is obviously not the same situation as downtown Montreal or Quebec. If a patient who is at risk of self-harm or harming others leaves the hospital without being cleared to do so by a physician, then the police will go and track down the patient. Again this happens more easily in small rural towns than I think it would in the big city. And the police can also help social workers and family members in removing firearms from a patient’s home in an effort to ensure that the home is safe for the patient to return. 

                          They aren’t allowed to go in there unassisted, is my understanding, unless they had a warrant, but they are allowed to go in a make sure that family members or social workers are able to safely remove dangerous items, so they sort of advice in that sense. In larger cities, the police are probably not involved in quite the same ways, but we really do need to make sure that we engage with them, because they are our allies in alerting us to people who are a threat to themselves or others.

Julia:                 And have you ever encountered instances where the physicians made the wrong call? So they decided to form a patient and they maybe shouldn’t have. And when does medical necessity trump the law, and I know these are big questions. [Laughs]

Vanessa:           [Laughs] I can’t say I have never known of a case where I felt the decision to form a patient or not was incorrect, as the decisions are always really made with the best information given at a time. Although, listening to the story that Tari told of the patient at the centre of the case in Alberta, that sounds like it was an incorrect decision [laughs]. I’m not trying to be glib, but it did sound like that they had not grounds to stand on there because that’s not something that I’ve seen – people being held against their will for making poor decisions. People are allowed to make poor decisions about their own health; it’s about whether they’re a danger to themselves, an immediate danger.

                          I have experienced situations though where I felt that I was being pressured to make a decision to form someone when they did not really meet the criteria. When we have to transport patients experiencing psychosis safe from rural areas to larger hospital centres, we have to send them in these tiny medical evacuation planes, and sometimes the Medivac companies might ask us to officially place the patient under Garde before they do so. And they ask us to do this so that they are allowed to chemically and/or physical restrain the patient for the flight. Now if the patient is not co-operative and is a danger and would have otherwise been formed anyway, then this is not a problem and the decision is pretty straight forward. They were probably already under a Garde or a form while they were waiting transfer in our hospital. And they are being sent for treatment, even if it is against their will because it has been deemed by a psychiatrist to be necessary.

                          I find it harder though when a patient who is psychotic, or potentially dangerous, actually agrees to the Medivac, and therefore, by our laws, should not be physically or chemically restrained, or placed under Garde .However if this patient were to suddenly change their mind during the flight, when the small plane is up in the air with a nurse and maybe a security guard and two pilots, and these planes are small, then this could quickly become a disastrous and extremely dangerous situation. So of course the moment that the patient is no longer consenting to care, then the Garde could come into effect and we can delegate the nurse on the plane to put that Garde into effect. But that seems a bit like semantics if you now have a psychotic patient who is suddenly angry and tearing apart a tiny plane or trying to open the plane door when you’re 15,000 feet in the air. So I can understand where the Medivac company is coming from as well because this is not an easy situation.

                          So we always wonder what is our legal coverage if we say that they are under Garde for the entire flight regardless of their consent at the beginning of the flight. The greater good would certainly be served by this approach, and I think that’s where we tend to sort of fall. We say OK, we also have to think of the rights of the other people on that plane. But legally, this feels a little bit more muddy and a little bit more uncertain for us – we’re not lawyers. So when does the right of the patient to not be kept against his will outweigh the rights of the pilot and nurse and crew to make it safely to the destination? And I have no answer [laughs] – shockingly.

Julia:                 This is – no, I mean this is like [kind of any other 00:28:30] question you would have in a test or an exam at law school, because it’s like so grey areas. And I don’t know Tari if you want to give it a shot, if you have any ideas that – I’m asking – it’s hard to have an answer now, but I don’t know if like in your experience you’ve come across those situations. Again only in Alberta – we understand it’s only in the Alberta Province, but it’s just interesting to have your thoughts.

Tari:                  Yeah, this isn’t something that really comes up day-to-day in private practice. I think that on the daily issues where there’s some uncertainty around forming a patient, there is also in-house legal counsel that would probably respond more on-call for those situations. I also wanted to clarify, the thing about the changes to the Legislation, the main thing is that they – for I suppose like a short-term circumstance where they are meeting the definition of mental disorder, so there is an impairment or I guess a disorder of the thought, mood, perception, orientation – I guess that could potentially be triggered, or alcohol-induced, but it just can be like their baseline. And it can’t be if somebody is, for example, they have dementia or even schizophrenia and there isn’t anything that you can do in the circumstances that would help with their treatment, such that they would be benefit in the circumstances, then in those cases it’s not suitable to form them.             

                          I think what’s interesting in JH, if you look at the other facts of the case, and it is quite a lengthy decision, the 2019 one, is that part of the reasoning that came up, so it seemed, is that JH, the harm that was at stake was harm not to the public but to himself. And I believe he did have a substance abuse issue, and with alcoholism in particular. And so the harm that they were seeing was the risk that if he were discharged, and in this case, also discharged to the streets because he became homeless during the course of his stay at the hospital. If they discharged him to the streets, then his condition, brought on by his alcoholism, would cause some harm to his liver – he could potentially end up with. But I mean that, in his case, was not seen to be an appropriate reason to form somebody, particularly for nine months.

Vanessa:           Yeah, I could imagine that that would lead to rather alarming backlogs in the entire Provincial Health Systems across the country if we felt compelled to form people who decided to keep smoking when it would hurt their lungs. Or keep drinking when it would hurt their liver [laughs] – it seems – yeah, as I said before people are allowed to make bad decisions about their health if they are deemed competent to do so, or if they haven’t been deemed incompetent I guess.

Tari:                  Right. So competency is assumed unless they are assessed otherwise. So in this case, it was also a feature here, is that he was receiving treatment – I think he was on anti-psychotics at some point, and without his consent, and that was notwithstanding the fact that there had been no Form 11 completed, which is the Form that would deem him to be incompetent to make those treatment decisions. So I guess those are some concerning things to be happening when he was detained, and especially because he wanted to leave and the perception was that his wanting to leave maybe demonstrated that he didn’t appreciate his medical condition or the seriousness of his condition and that certainly is not something that would justify involuntary detaining a patient, no.

Vanessa:           No, I am glad that that has changed, and I am hoping it is not happening elsewhere, but I’m sure that it is, unfortunately.

Tari:                  Yes, lots of checks and balances now to prevent that from happening.

Julia:                 So thank you very much to both of you. I have one last question, because it’s always something I want to mention, and I want to know. Because well we know that some people living in the situation of vulnerability or marginalization, including people living with a handicap or Indigenous women and girls might be more vulnerable to discrimination, including in the healthcare system. I say that because I know for a fact that there’s a new report about that for forced sterilization for instance. We know lots of discrimination happening there. And I would like to know if you were aware of similar concerns when it comes to Garde?

Vanessa:           I don’t have any statistics on this, but simply from my experiences working in urban rural and remote emergency rooms, Indigenous populations are often placed under Garde, and particularly in larger centres in the south, are not always provided the now legally mandated information in their own language or provided with appropriate translations – that definitely occurs. I think in the smaller communities and the more remote places, like on the First Nations Reserve where I work right now, I think there is much more of a community mind and we’re much closer to the patients. In fact we know a lot of the patients, so there’s a lot more back and forth in exchange about this. But I’ve certainly seen in larger centres where someone’s placed under Garde. they’re not even really told about it, they’re just told they can’t leave and that’s about the information they get. And particularly when there’s a language and cultural barriers.

                          So between the police and emergency medical services, these patients are very commonly the victims of discrimination, whether it be conscious or unconscious, and obviously all of us need to keep work harder to change all the different inequities that exist in our systems.

Julia:                 Of course, thank you very much. And Tory, do you have any thoughts about that?

Tari:                  Yeah, I can say that I’m certainly aware of there being research on issues of systemic discrimination in healthcare systems across Canada. While I personally do not feel qualified to comment on this issue, I do believe that this is a topic that is quite well covered by the scholars. So I’ll defer to the experts on that one.

Julia:                 Maybe a next podcast on that. But thank you very much to both of you [laughs], Vanessa Cardy and Tory Hibbitt. Well thank you very much then to both of you for taking the time to shed some light on this very – I mean I feel like so many grey areas, I think we answered some questions whereas we opened other questions – question marks. But thank you so much to both of you and [stay to 00:34:39] to like us, comment, and listen to our other podcasts on The Every Lawyer [laughs]. I was like what should I say?

Vanessa:           Thank you very much for having me – it was a real pleasure.

Tari:                  Thank you so much.


[End of recorded material 00:35:18]