Psychiatric confinement and consent: Quebec court restates the rules

A patient brought to the emergency room by police refuses a psychiatric assessment. An hour later, while sedated, she is assessed anyway. The result: the Court of Québec excludes the report and dismisses the application to confine her in hospital. A Gatineau decision reminding us that, in a hospital as anywhere else, good intentions are no substitute for consent.

On July 14, 2026, at 8:52 a.m., an emergency physician recorded in writing that a patient brought in by police was refusing both hospitalization and a psychiatric assessment. At 10:01 a.m., just over an hour later, another physician went ahead with the assessment anyway. How did he make sure his patient consented? He asked her whether she recognized him. She said yes. The examination began.

For Judge Stéphane D. Tremblay of the Court of Québec, that “yes” was not consent. In Santé Québec Outaouais c. A.P., 2026 QCCQ 4225, a judgment delivered from the bench on July 17, 2026 in the District of Gatineau, the court excluded the psychiatric report obtained without consent and dismissed the application for confinement. The judge went further, closing with pointed remarks about the professionals and institutions he held responsible for that outcome.

The facts: preventive confinement, a refusal, then two examinations

The patient arrived at the hospital aggressive, out of control and intoxicated on psychostimulant drugs (“speed”). The emergency physician placed her under preventive confinement (garde préventive): she could be kept in hospital against her will, without a court order, as Quebec law allows for a short period when a person’s mental state presents a grave and immediate danger. In the notice sent to hospital management, the physician noted that the patient refused hospitalization and the psychiatric assessment.

The first psychiatric examination nonetheless took place that same morning. According to the court, the physician’s own observations showed that the patient was clearly in no state to consent. At the hearing, he acknowledged that she was sedated and that he had trouble understanding what she was saying; his notes indicate that she kept asking for her pillows so she could sleep. He even had to end the examination early, which did not stop him from recommending ten days of confinement. A second examination the next day recommended fourteen days.

Santé Québec Outaouais then asked the court to order confinement in a health institution. At the preliminary stage, the patient’s lawyer objected to the filing of the psychiatric reports: his client had never consented to them. The judge adjourned the hearing so the institution could call the physician who had performed the first examination.

Holding someone in hospital does not authorize assessing them

This is the heart of the case, and a common misconception. Under Quebec civil law, every person is inviolable and entitled to the integrity of their person. Article 10 of the Civil Code of Québec states that, except in cases provided for by law, no one may interfere with a person without their free and enlightened consent. Article 11 makes clear that this applies to care of any nature, including a simple examination.

Quebec law provides three distinct levels of intervention when a person appears dangerous because of their mental state:

Preventive confinement: a physician may hold the person for a maximum of 72 hours, without a judge’s authorization, if the danger is grave and immediate. It is a “pause,” not a licence to examine.
Provisional confinement: if the person refuses the psychiatric assessment or is not capable of consenting to it, the institution must apply to the court (article 27 C.C.Q.) for an order requiring the person to undergo it.
Confinement in an institution proper: the court may order it only if two psychiatric reports conclude that it is necessary and the judge is personally satisfied that the person is dangerous (article 30 C.C.Q.).

In its leading decision, J.M. c. Hôpital Jean-Talon du Centre intégré universitaire de santé et de services sociaux (CIUSSS) du Nord-de-l’Île-de-Montréal, 2018 QCCA 378 (in French), the Quebec Court of Appeal was unequivocal: the statute governing preventive confinement does not authorize a psychiatric assessment of a person held against their will without that person’s consent. In other words, the hospital may hold the person, but it may not examine them by force. For that, it needs a judge.

Here, the patient had refused and then was visibly unable to consent. The institution therefore had to seek a provisional confinement order. It did not.

What valid consent is (and is not)

Consent must be free, meaning given without coercion, and enlightened, meaning given with full knowledge of the relevant facts. Drawing on J.M., Judge Tremblay restated several guidelines that deserve a place on the wall of every emergency department:

Not objecting is not consenting. Apparent docility is not consent, especially from a vulnerable person held against their will.
There is no enlightened consent if the patient does not know the nature of the assessment, its purpose or their right to refuse it. The maxim “ignorance of the law is no excuse” does not apply here.
A person in detention is in a power imbalance with the physician. Ambiguous consent obtained in that setting is not enough.
A patient who refuses, then eventually answers a few questions under a physician’s insistence, has not freely consented.
Capacity to consent must be assessed objectively, not according to how compliant the person is. A cooperative patient is not presumed capable, and a patient who refuses is not presumed incapable.

The physician explained that he had seen a nurse’s note in the file indicating that the patient now consented to the examination. He could not, however, recall exactly what it said, and he had not asked his patient why she had supposedly changed her mind. For the court, this mattered little: ensuring consent is the physician’s own responsibility, an act that cannot be delegated. The judge pointed to the Code of ethics of physicians, which requires a physician, except in an emergency, to obtain free and enlightened consent before any examination, to give the patient the explanations needed to understand it, and to facilitate the patient’s decision and respect it.

As for asking a sedated patient who wanted to sleep whether she recognized him, the court could not see in it any expression of valid consent.

Why the whole application collapses

Article 2858 of the Civil Code of Québec requires a court to reject, even on its own initiative, evidence obtained in violation of fundamental rights and freedoms where its use would tend to bring the administration of justice into disrepute. In the judge’s view, admitting this report would have neutralized the patient’s right to the inviolability of her person and flouted the cardinal principle of consent to care. The report was excluded.

The rest followed automatically. Because the law requires two concurring reports and only one remained, the application was, in the judge’s words, irremediably flawed. The court had no choice but to dismiss it. This is exactly what happened in J.M. in 2018.

Why this case stands out

First, for the candour of its closing remarks. The judge described the outcome as regrettable, since the rules have long been well known, and wrote that it was dismaying to see health professionals still acting so casually to the detriment of people’s rights. He was careful to add that, while the dismissal was pronounced by the court, it flowed directly from the conduct of the institutions and professionals who had a duty to protect the rights of a vulnerable person.

Second, because it illustrates a genuine dilemma. One could object that an agitated, intoxicated patient whom two physicians considered dangerous walked out without a confinement order because of a procedural defect, and that public safety suffers as a result. The argument carries some weight. Other Court of Québec judgments have held that a breach of a patient’s rights does not automatically lead to the exclusion of a psychiatric report, and that the court must balance those rights against institutions’ real resources and society’s need to protect itself (see, for example, Centre hospitalier de l’Université de Montréal c. H.L., 2015 QCCQ 1831, in French). In that case, however, the patient had cooperated with the examination. Here, the refusal was in writing in the file, the inability to consent was obvious and the judicial route was available. The law’s answer is clear: the solution is not to skip consent, but to apply promptly to the court.

One clarification is also worth making: the judgment’s operative part declares only the first report inadmissible. The fate of the second report is not decided separately, which does not affect the outcome since a single report is not enough.

Finally, the regime is about to change. Bill 23, An Act mainly to provide better support to persons whose mental state could present a risk for their own safety or that of others, passed and assented to on June 12, 2026, overhauls the statute commonly known as “P-38.” Among other things, it replaces the “grave and immediate” danger test, turns preventive confinement into “temporary” confinement, and transfers confinement applications from the Court of Québec to a new division of the Tribunal administratif du Québec (Quebec’s administrative tribunal). Its provisions come into force on dates set by the government; they did not yet apply to this case. The principles of free and enlightened consent in articles 10 and 11 of the Civil Code remain the foundation of the system.

Key takeaways

For caregivers and institutions

Preventive confinement allows you to hold a person, not to assess them against their will.
Consent must be verified by the physician personally, at the time of the examination, after explaining the nature, purpose and consequences of the assessment and the right to refuse. A note in the file is not enough.
A recorded refusal is not erased by a later note with no explanation. If the patient changes their mind, document why and how.
In case of refusal, doubt about capacity or sedation, the route is judicial: apply for a provisional confinement order (article 27 C.C.Q.) within the preventive confinement period.
A shortcut can cost you the entire application: excluding a single report is enough to defeat the confinement.

For patients and their families

You have the right to refuse a psychiatric assessment, even if you are being held in hospital. Only a judge can impose it.
You have the right to be informed of your rights, and no one may assume that you already know them.
Your silence or apparent cooperation is not consent.
If you are served with a confinement application, contact a lawyer without delay: the timelines are very short and the hearing often takes place within days. In this case, the objection raised at the outset by the patient’s lawyer made all the difference.
If a loved one is in crisis, medical intervention is often still necessary. The law does not prevent protecting a person in danger; it requires that it be done by the rules.

Recognizing your doctor is not consent: in Gatineau, a psychiatric confinement application dismissed for violating a patient’s rights

The facts: preventive confinement, a refusal, then two examinations

Holding someone in hospital does not authorize assessing them

What valid consent is (and is not)

Why the whole application collapses

Why this case stands out

Key takeaways

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