A judge issued a treatment order for an accused in a psychotic state. The Crown indicated that a bed in one hospital would be available in six days. The judge ordered treatment “forthwith” at another hospital. Court services delivered the accused to the first hospital and left him in the hallway. Both hospitals appealed, arguing that they had not consented to the treatment order. The Criminal Code states that no treatment disposition can be made without the consent of the person in charge of the hospital or the person assigned responsibility for the patient’s treatment. The question before the Supreme Court of Canada was the interpretation of this consent requirement.
The Supreme Court of Canada was uncharacteristically divided on this case. A majority of five judges ruled that a hospital or person in charge of treatment must consent to all of the terms of the order, and if there is no consent, the order cannot be made. They stated that timing (i.e. a six-day delay) must be included when assessing consent. They wrote “The ability of the hospital to administer the suitable treatment is inextricably linked to whether it has the facilities and personnel available to do so. Timing is therefore an essential element of suitability and not distinct from it.” However, the majority also ruled that if the accused’s s. 7 Charter right to life, liberty and security of the person was threatened, then a court can consider an order for immediate treatment.
The minority of four judges wrote: “…it is clear that hospital consent is not required to all of the terms and conditions of the treatment order. The hospital’s consent is required only to the treatment itself. Bed shortages and patient wait lists do not permit a hospital to refuse, or defer, consent. Consent may be withheld only for medical reasons and cannot be withheld on the basis of an efficient management of hospital resources.”
About Teresa Mitchell
