Civil Committal

In the area of health care and health law, one of the basic legal rights which all Canadians have is the right to make decisions respecting their own health care. As a general rule, no one can be forced to undergo medical treatment without their consent, and a doctor who performs treatment without consent can be held liable for assault (MEDICAL JURISPRUDENCE). Likewise, as a general rule, patients cannot be kept in hospital against their will, and to do so could lead to damages being awarded for false imprisonment.

Civil commitment is an exception to this general rule. Every province and territory in Canada has legislation (usually called the Mental Health Act) which permits individuals to be kept in a psychiatric hospital against their will if certain conditions are met. These patients are normally referred to as "involuntary" patients. The specific criteria and procedure for civil commitment vary across Canada, but in most provinces and territories 2 conditions must usually be satisfied: the patient must be suffering from a mental disorder or mental illness, and the patient must present a danger to self or others. If these 2 conditions are satisfied, the legislation authorizes the patient to be kept in a psychiatric facility for a short period (usually 72 hours) for assessment purposes. Thereafter, if 2 doctors sign further certificates, the patient may be kept at the hospital for a much longer time. The Mental Health Act gives involuntary patients a number of legal rights, including the right to apply to a tribunal for a review of their case. The tribunal has the power to order that the patient be released from the hospital, if it concludes that the criteria for civil committal are no longer met.

The legal position regarding psychiatric treatment of involuntary patients also varies across Canada. In some parts, involuntary patients may be treated without consent. In others, the opposite position is taken; treatment without the consent of the patient (or of a substitute, if the patient is mentally incompetent) is not permitted. In some provinces, a third approach is adopted; treatment without consent is not permitted, unless an order authorizing the treatment is obtained from the tribunal under the Mental Health Act.