Marie-Nancy Paquet Partner, Lawyer and Managing Partner (Sherbrooke office)

Marie-Nancy Paquet Partner, Lawyer and Managing Partner (Sherbrooke office)

Profile

Co-managing partner, Sherbrooke office

Marie-Nancy Paquet is co-director of the Sherbrooke office and a partner in the Litigation group.

She practices primarily in civil liability, including class actions, as well as in health and social services law, personal insurance and contract management.

Before joining the firm, she helped set up the legal and institutional affairs division of an Integrated University Health and Social Services Centre (CIUSSS), where she held a senior management position.

Ms. Paquet holds a specialized postgraduate diploma (DESS) in law, health, and ethics from Université de Rennes I (France) and has developed a particular interest in legal issues that relate to ethics and health law. Her work in a private law firm with institutional clients allowed her to gain considerable experience in a number of aspects of their operations, particularly in litigation, access to information, administrative law, human rights, contractual matters and hospital liability.

She has written or participated in the drafting of many policies and other administrative documents and has supported institutions in applying the laws and regulations that govern them. However, most of her practice remains devoted to litigation, where she represents clients before civil courts and administrative tribunals.

She is recognized for her skills, her professional approach, the inventive nature of the solutions she provides and the way she listens to her clients’ needs during consultations, training sessions and situations that require intervention from the courts.

Ms. Paquet is regularly invited to speak at events for various organizations to discuss topics of interest in the areas of civil liability, human rights and health and social services law.

Teaching

  • Lecturer – Université de Sherbrooke, 2019-2023 (Team Uds Co-leader for the Pierre-Basile-Mignault Moot Court Competition)
  • Instructor—École du Barreau du Québec, 2005-2023
    (Units on civil liability, human rights, evidence and professional ethics at the training centres in Québec City and Sherbrooke)

Publications

  • “Usagers confiés et obligations des établissements : revue des décisions d'arbitrage en matière de RI-RTF” in: La protection des personnes vulnérables (2022), Service de la formation continue du Barreau du Québec, Vol. 507, Les Éditions Yvon Blais Inc., pp. 161–216
  • “La responsabilité civile des établissements de santé et de services sociaux en temps de pandémie” in collaboration with Anaïs Martini, in: Développements récents en droit de la santé (2021), Service de la formation continue du Barreau du Québec, Vol. 504, Les Éditions Yvon Blais Inc., pp. 93–133
  • 2018. “RNI, RTF, RI, RAC… ou l’ABC des ressources.” La protection des personnes vulnérables 439: 69–122.  Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2014. “Comportements inappropriés en milieu sociosanitaire et intervention judiciaire.” La protection des personnes vulnérables 378: 21–51. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2012. “Hospitalisation et autorisation de soins : soigner pour garder ou hospitaliser pour ne pas garder,” with Vincent Beaumont. La protection des personnes vulnérables 344: 151–179. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2011. “La responsabilité hospitalière et l’utilisation du matériel,” with Luc de la Sablonnière. Droit médico-légal et responsabilité des chirurgiens 343: 101–122. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2010. “Les dimensions juridiques et éthiques.” in Soins infirmiers : Psychiatrie et santé mentale, 2nd edition. Éditions du renouveau pédagogique inc. (ERPI)
  • 2010. “Le principe de l’exception : la confidentialité dans la Loi sur les services de santé et les services sociaux.” La protection des personnes vulnérables 315: 51–104. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2008. “La prise en compte de la vulnérabilité par le réseau sociosanitaire québécois.” in École du Barreau, Justice, société et personnes vulnérables, 2008–2009 Law Collection. Éditions Yvon Blais
  • 2008. “Au-delà de la chaise et de la civière... Triage et responsabilité civile à l'urgence.” Tendances en droit de la santé 287. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2008. “Prendre les moyens légaux de soigner : choix ou obligation ?” Obligations et recours contre un curateur, tuteur ou mandataire défaillant 283. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2007. “Urgences sociales et nouveaux réseaux locaux de services de santé et de services sociaux : une panacée?” Autonomie et protection 261. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2006. “Établissements sociaux-sanitaires et transfert des usagers : quelles sont les balises ?” Dépendance et protection 238. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 2005. “La responsabilité civile découlant des infections nosocomiales.” Développements récents en responsabilité médicale et hospitalière 230. Barreau du Québec Continuing Education. Éditions Yvon Blais
  • 1999–2001. Contributing writer to Droit de cité, a journal specialized in municipal law, published by Éditions Yvon Blais in collaboration with Pothier Delisle

Articles and Case commentaries

  • “Commentaire sur la décision CIUSSS de la Capitale-Nationale c. M.B. – Mécanisme d’accès à l’hébergement ou tribunal : qui décide du milieu d'hébergement?” Repères, February 2021, EYB2021REP3213
  • “Commentaire sur la décision A.F. c. Centre intégré de santé et de services sociaux des Laurentides – Quand le refus d'être évalué empêche d'être soigné”. Repères, August 2021, EYB2021REP3325
  • Case commentary: “Commentaire sur l’arrêt R. (C.) c. CISSS du Bas St-Laurent – Ce que dit l’arrêt de principe F.D….et ce qu’il ne dit pas.” Repères. June 2017. EYB202017REP2254
  • Article: “Qui est la mère de cet enfant qui vient de naître? Établissements de santé et accouchement de mères porteuses.” Personnes physiques et successions en bref. Éditions Yvon Blais. March 2015. EYB2015REP1682
  • Case commentary: “Commentaire sur l’arrêt Cuthbertson c. Rasouli – Lorsque « l’arrêt de soin » devient un « soin ».” Repères. December 2013. EYB2013REP1451
  • Article: “Un dossier et des restes humains... l'accessibilité des échantillons de sang et de tissus conservés par les établissements de santé au Québec.” Personnes physiques et successions en bref. Éditions Yvon Blais. December 2013. EYB2013REP1430
  • Case commentary: “Commentaire sur l'arrêt Cojocaru c. British Columbia Women's Hospital and Health Centre – La responsabilité médicale et hospitalière : la Cour suprême réitère les principes applicables.” Repères. August 2013. EYB2013REP1401

Presentations and Seminars

  • Online training on basic concepts in personal insurance and review of recent case law, in collaboration with Me Judith Rochette, September 30, 2022
  • “Usagers confiés et obligations des établissements : revue des décisions d’arbitrage en matière de RI-RTF.” Talk given at the “La protection des personnes vulnérables” conference of the Service de la formation permanente du Barreau du Québec – Montréal, February 4, 2022
  • “La responsabilité civile des établissements de santé et de services sociaux en temps de pandémie”. Talk given at the “Développements récents en droit de la santé” (2021) conference of the Service de la formation permanente du Barreau du Québec – Montréal, November 26, 2021
  • “L’ordonnance de protection : un outil juridique méconnu”. Talk given at the “Pour le mieux-être des aînés” conference, 4th edition, Le Point en santé, services sociaux et éducation, Lévis, September 10, 2020
  • “Gardes en établissement : lorsque la Cour d’appel veut faire changer les choses”. Talk given in collaboration with Me Sébastien Bédard, organized by the Health section of the Canadian Bar Association (CBA) – Quebec Division, Montréal, November 7, 2018
  • “RNI, RTF, RI, RAC… ou l’ABC des ressources.” Talk given at La protection des personnes vulnérables, a conference organized by the Barreau du Québec Continuing Education in Montréal on February 2, 2018
  • “Pratique du droit en milieu sociosanitaire: une laïcité au quotidien.” Joint presentation with Éric-Alain Laville at the Entretiens Jacques Cartier, Université Laval, on October 17, 2017
  • “Évaluation de l’aptitude : quand, comment, pourquoi ?” Presentation on legal concepts related to fitness in the context of civil law at 3rd Congrès québécois sur la maladie d’Alzheimer et les maladies apparentées 2016, held in Sherbrooke on November 3, 2016
  • “Revue de la jurisprudence récente en droit de la santé mentale—2015–2016.” Presentation at the Colloque en droit de la santé mentale du Barreau de Québec, held in Québec City on April 22, 2016
  • “Évaluation de l’aptitude au consentement.” Presentation on the legal aspects of proper consent, frequent errors in obtaining consent, and potential pitfalls in assessing the capacity of geriatric patients to consent at the 8th Journée de formation interdisciplinaire de la FMSQ, held in Québec City on November 13, 2015
  • “Points de vue croisés de différents acteurs sur le profil et la place des médecins.” Presentation on the legalities related to the status and involvement of physicians in institutions at the Colloque annuel des DSP de l’AQESSS, held in Québec City on November 28, 2014
  • “Comportements inappropriés en milieu sociosanitaire et intervention judiciaire.” Talk given at La protection des personnes vulnérables, a conference organized by the Service de la formation permanente du Barreau du Québec in Montréal on January 30, 2014
  • Cuthbertson c. Rasouli : arrêt de traitement et niveau de soins.” Breakfast presentation for Morency clients on January 24, 2014
  • “Les nouveaux enjeux juridiques de la technologie dans les milieux de soins de santé et de services sociaux.” Talk given at Santé et technologie de l’information : tendances, développements et nouveaux enjeux juridiques, a mini-conference organized by the Canadian Bar Association in Montréal on November 28, 2013
  • “Hospitalisation et autorisation de soins : soigner pour garder ou hospitaliser pour ne pas garder.” Talk given at La protection des personnes vulnérables, a conference organized by the Barreau du Québec Continuing Education in Montréal on January 27, 2012
  • “Justice et société.” Workshop given as part of a series of thematic workshops organized by the École du Barreau du Québec. Presentation about how the legal system accounts for vulnerability, given in Québec City on November 18, 2011
  • “Regards éclairés sur le consentement.” Panellist in a reflection session organized by the Table de concertation DITED de l’Est de Montréal in Montréal on May 17, 2011
  • “Justice et société.” Workshop given as part of a series of thematic workshops organized by the École du Barreau du Québec. Presentation on how the legal system accounts for vulnerability, given in Québec City on November 19, 2010
  • “Le principe de l’exception : la confidentialité dans la Loi sur les services de santé et les services sociaux.” Talk given at La protection des personnes vulnérables, a conference organized by the Service de la formation permanente du Barreau du Québec in Montréal on January 29, 2010
  • “Le consentement aux soins : les principes et la jurisprudence récente.” Presentation organized by the Comité des résidents de la Résidence Cooke at the Centre de sante et de services sociaux de Trois-Rivières in Trois-Rivières on April 4, 2009
  • Workshop on health law. Workshop given as part of a series of thematic workshops organized by the École du Barreau du Québec. Presentation on the key elements of health and social services law, given in Québec City on November 20, 2008
  • “Le consentement aux soins : les principes et la jurisprudence récente.” Talk given at Les comités des usagers et de résidents : défis et pistes de solutions, a conference organized by the Conseil pour la protection des malades (CPM) in Québec City on October 21, 2008
  • “Une perspective juridique québécoise de la vulnérabilité : réflexions et représentations.” Joint presentation with Michel Giroux and Jocelin Lecompte at the Rehabilitation International (RI) World Congress, in the Droits et participation sociale des personnes ayant des incapacités : Assurer une société pour tous section, in Québec City on August 26, 2008
  • “Prendre les moyens légaux de soigner : choix ou obligation ?” Talk given at Obligations et recours contre un curateur, tuteur ou mandataire défaillant conference organized by the Barreau du Québec Continuing Education in Montréal on February 1, 2008
  • “Accès et gratuité des soins de santé au Canada : réflexion autour de l’arrêt Chaoulli.” Lunchtime talk organized by ACFAS-Sudbury and the IFO at Laurentian University in Sudbury, Ontario, on March 8, 2007
  • “Urgences sociales et nouveaux réseaux locaux de services de santé et de services sociaux : une panacée?” Talk given at Autonomie et protection, a conference organized by the Barreau du Québec Continuing Education in Montréal on January 26, 2007
  • “Comportements inappropriés des visiteurs : tolérance ou intervention?” Breakfast presentation for Pothier Morency clients on November 1, 2006
  • “Comportements inappropriés des usagers et des visiteurs en milieu socio-sanitaire : tolérance ou intervention?” Talk given at the Congrès INSIGHT in the section La responsabilité médicale et hospitalière : nouvelles tendances – Aspects pratiques – enjeux et solutions in Montréal on May 14, 2006
  • “D’objets de droit à sujets de droits : émergence juridique de la personne ayant une déficience intellectuelle.” Joint presentation with Jocelin Lecompte, Centres de réadaptation Lisette-Dupras et de l'Ouest de Montréal, at the Sommet international pour une alliance en faveur de l’inclusion sociale, organized by the Quebec branch of the American Association on Mental Retardation (AAMR) in Montréal on May 3, 2006
  • “Établissements socio-sanitaires et transfert des usagers : quelles sont les balises?” Talk given at Dépendances et protection, a conference organized by the Barreau du Québec Continuing Education in Montréal on January 27, 2006
  • “Jurisprudence récente en droit de la santé et des services sociaux.” Breakfast presentation for Pothier Morency clients on decisions handed down by various Quebec courts in order to see firsthand how judiciary power perceives and interferes in the operations of the Quebec health and social services system, on December 14, 2005
  • “Santé mentale, suicide et responsabilité.” Talk given at the 3rd Colloque inter-établissements en psychiatrie et en santé mentale in Québec City on November 15, 2005
  • “La responsabilité civile découlant des infections nosocomiales.” Talk given at Développements récents en responsabilité médicale et hospitalière, a conference organized by the Barreau du Québec Continuing Education in Montréal on September 23, 2005
  • “Isolement et contention à la salle d’urgence.” Talk given at the Congrès international interdisciplinaire sur les urgences in Montréal (from June 26 to 30, 2005) on June 29, 2005
  • “Les balises juridiques d’un règlement de divulgation au sein des établissements de santé et de services sociaux : un guide pratique pour satisfaire vos obligations.” Responsible for a workshop given at a conference organized by the Institut canadien, Responsabilité médicale et hospitalière : Derniers développements légaux et stratégies pour réduire les risques d'engager votre responsabilité in Montréal on May 3, 2005
  • “40 ans plus tard, les usagers sont-ils mieux aidés ? Regard sur l’évolution des services, des pratiques, des droits et de l’éthique.” Panellist, Centre hospitalier Robert-Giffard, on February 18, 2004

Professional and community activities

  • Member and Chair of the Board of Directors of the Sherbrooke Museum of Nature and Science, 2019–2023
  • Member of the Disciplinary Council of the Barreau du Québec, since 2021
  • Member of the human rights expert committee of the Barreau du Québec, since 2018
  • Member of the Barreau du Québec’s committee on human rights and diversity in the profession, since 2018
  • Member of the Barreau de Québec’s committee on social integration and justice, 2017–2018
  • Member of the Barreau de Québec’s Court of Appeal committee, 2016–2017
  • Member of the Executive of the Health Law Section of the Canadian Bar Association (CBA), 2014–2016
  • Chair of the Barreau de Québec’s committee on social integration and justice, 2008–2011
  • Member of the Barreau de Québec’s equivalences committee, 2008–2011
  • Member of the Barreau du Québec’s working group on mental health and justice, 2008–2010
  • Member of a research ethics committee for an educational institution operating as a hospital centre providing psychiatric care, 2007–2013
  • Member of the clinical ethics committee of aHealth and Social Services Centre(CSSS), 2006–2010
  • Member of the board of directors of the Société Provancher d’histoire naturelle du Canada, 2006–2008

Education

  • DESS (specialized postgraduate diploma) in law, health and professional ethics, graduated with honours, Université de Rennes I, France, 2003
    Thesis: L’interne en médecine : statut et responsabilité (France-Québec)
    Internship: Centre hospitalier universitaire de Rennes (CHU Ponchaillou)
  • LL.B., Université Laval, 1999
  1. Proof of incapacity: analysis of CIUSSS de L’Ouest-de-L’île-de-Montréal (ST. Mary’s Hospital Center) c. R.C.

    PROOF OF INCAPACITY: ANALYSIS OF CIUSSS DE L’OUEST-DE-L’ÎLE-DE-MONTRÉAL (ST. MARY’S HOSPITAL CENTER) c. R.C.1 Summary The authors comment on this decision rendered on September 20, 2024, in which the Court of Appeal ruled on the capacity to consent to care in the presence of a psychiatric disorder. The Court of Appeal overturned the first instance decision, which had found the respondent capable of refusing treatment with antipsychotic medications even though he had refuted his diagnosis, because he understood the benefits that antipsychotic medications could afford him and refused to take them because of their side effects. The Court of Appeal rather concluded that the trial judge had misapplied the five criteria to be used to assess whether a person is capable of consenting to care, particularly in the context where (i) the trial judge’s conclusion ran counter to the uncontradicted opinion of an expert; and (ii) there was much evidence supporting the fact that the respondent was incapable of making an informed decision. INTRODUCTION In this case, the Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l'Île-de-Montréal (the “CIUSSS”) appealed a decision rendered by the Superior Court on March 14, 2024, dismissing its application for an authorization to provide care to R.C., a 51-year-old man. The Superior Court had concluded that the CIUSSS had not proven that the respondent was incapable of consenting to care. The Court of Appeal was thus called upon to review the trial judge’s answer to the first question (incapacity to consent) in the analytical framework2 surrounding the test that has now been used for three decades.3 THE FACTS R.C. has a complex medical history. He was hospitalized several times between 2007 and 2019 for mental health issues, including suicidal ideation and personality disorders. In 2021, he was admitted to the CHUM for COVID-19-related complications having resulted in brain damage caused by hypoxia. From 2022 onwards, he made repeated visits to the emergency room, often to obtain benzodiazepines, leading him to become addicted. Even though he adhered to treatment with antipsychotic medication for a time, R.C. stopped taking his medication because of undesirable side effects. In January 2024, after an episode of confusion, he was taken to hospital where he was diagnosed with late-onset schizophrenia. However, R.C. refuted the diagnosis, claiming that his health problems were caused by an artificial intelligence device he believed had been implanted in his body. The psychiatrists who assessed him concluded that he was incapable of consenting to care. On February 16, 2024, the CIUSSS filed an application for authorization to re-hospitalize R.C. and administer antipsychotic medications, despite his categorical refusal. After analyzing the evidence, which essentially consisted of R.C.’s testimony and that of the CIUSSS psychiatrist, the Superior Court concluded that R.C. understood the nature of his condition and the benefits of the proposed treatment, despite his refusal to accept his diagnosis. The Court was of the opinion that the CIUSSS psychiatrists, in their analysis of R.C.’s capacity, had erroneously and repeatedly carried over his rejection of the diagnosis in a cascading fashion in their analysis of the five criteria from the decision in A.G.,4 thereby making the same error as the one that the Court of Appeal had identified in the M.H. decision.5 Despite the absence of a second opinion on R.C.’s capacity, the Superior Court had determined that he was able to consent to his care. According to the trial judge, in keeping with the teachings of the Court of Appeal in the F.D. decision,6 he therefore lacked jurisdiction to order care. For this reason, he dismissed the application for an authorization to provide care. THE COURT OF APPEAL’S DECISION The Court of Appeal began by reiterating the five criteria for assessing a person’s capacity, namely: Does the person understand the nature of the illness for which treatment is proposed? Does the person understand the nature and purpose of the treatment? Does the person understand the risks and benefits involved in undergoing the treatment? Does the person understand the risks involved in not undergoing the treatment? ls the capacity to consent to treatment affected by the patient's illness?7 It pointed out that the criteria are not cumulative and that it is incumbent upon the trier to assess them as a whole.8 Moreover, the mere fact that a person refuses care that would be in their best interest is not enough to conclude that the person is incapable,9 nor is their mere rejection of their diagnosis.10 In this case, the Court of Appeal considered that the Superior Court judge had committed a palpable and overriding error making its intervention warranted. It stated that the trial judge was obliged to express an opinion on whether the evidence proffered was sufficient, adding that the judge had a proactive role to play in protecting the interests of the person involved. If the trial judge felt that a point that had not been the subject in a genuine adversarial debate raised a problem in his view, it was up to him to ask questions.11 Subsequently, the court took extracts from the evidence consisting of a psychiatric report and the testimony of its author and went on to note that the evidence did not allow the trial judge to conclude that R.C. was capable of consenting or refusing the proposed treatment plan, on the contrary. Based on the same evidence, the Court declared R.C. incapable of consenting to care and sent the case back to the Superior Court so that it could determine whether there was indeed categorical refusal and assess the terms of the treatment plan sought. AUTHORS’ COMMENTS This decision of the Court of Appeal follows approximately 20 other decisions12 respecting orders authorizing care handed down by this same court, which have all further established and clarified the guiding principles surrounding such orders since the F.D. decision of 2015.13 These successive decisions have not only added to case law, they have refined the assessment criteria and legal requirements pertaining to applications for authorization to provide care. Such a development in case law shows that the courts are committed to circumscribing complex healthcare situations. Doing so involves striking a balance between the rights to freedom and self-determination and the protection of those who are vulnerable or otherwise unable to consent. On July 6, 2015, the Court of Appeal of Quebec marked a decisive turning point where orders authorizing care are involved by rendering a decision that sent a clear message to the Superior Court, namely F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria).14 In that decision, an analytical framework was established to ensure compliance both with the provisions of the law and the spirit of the law. Since then, the Court has handed down some 20 other significant decisions, each shedding additional light. The guiding principles derived from these decisions can be summarized under the following themes: Rights relating to the judicial process  Every person has the fundamental right to contest an application for a order authorizing care, to be heard and to be represented.15 The judge must proactively protect the user’s interests and ensure that they are represented by a lawyer.16 Scope of the care plan Requiring a definite care plan does not mean dictating which medication should be administered in a limitative way.17 A judge may remove certain substances from a treatment plan if they deem that to be in the patient’s best interest.18 It is crucial to draw a distinction between preventive care and a treatment plan that includes various alternatives as the situation evolves.19 For a future hospitalization clause to be valid, there must be a reasonable foreseeability of hospitalization.20 When a patient is to be placed, the application for authorization must indicate where they are to be placed.21 Physical restraint may only be used if it is necessary to avoid serious harm, and must be limited to the minimum.22 A parent’s refusal to consent to a treatment plan may not be warranted if the plan is in the child’s best interests.23 Duration of the authorization When the person concerned is not cooperating and access to their previous medical records is not available, the judge must be especially careful in assessing whether the proposed care plan is legal, in particular in terms of its duration and scope.24 The duration of the care order should be as short as reasonably possible, without compromising the effectiveness of the treatment.25 When a future hospitalization is contemplated, the judge must take into account the time required to stabilize the patient.26 The 30-day period for a future hospitalization should not be considered an absolute limit, as a longer period may be deemed necessary after a thorough analysis.27 The evidence The mere fact that a relationship exists between an expert and a party does not make the expert’s testimony inadmissible: The circumstances surrounding the expert’s role must be reviewed.28 An expert who does not know a patient’s reasons for refusing treatment is not deemed to have breached their duty to inform.29 An expert may testify to reported facts without the possibility of anyone opposing them; however, this does not mean that reported facts are proven, as the rules of evidence remain stringent in this context.30 An expert report may suffice as testimony; the judge need not require the patient’s testimony if the patient cannot understand the issues at hand.31 Applications for safeguard orders may be unsuccessful where there is no expert report and it is not demonstrated that the matter is urgent.32 This review highlights the significant advances that the courts have made in overseeing applications for orders authorizing care and protecting vulnerable people. The analytical framework established in the F.D. decision remains relevant, and subsequent decisions have further refined its questions. The decision that the Court of Appeal handed down in Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l'Île-de-Montréal c. R.C. is milestone in the jurisprudence on court orders authorizing care. By overturning the lower court’s judgment, the Court of Appeal reaffirmed the need for a thorough assessment of the capacity to consent, emphasizing that the work of medical teams and applications made by healthcare institutions are important to ensure appropriate care. This decision not only underscores the fact that it is important to protect the rights of users, but also that the work of the court is crucial, for it must ensure that the criteria are met without substituting its opinion for that of the experts heard. CONCLUSION The decision discussed in this paper is part of a series of decisions that have clarified and enhanced the guiding principles established since the F.D. decision was handed down in 2015.33 The Court of Appeal has provided valuable guidelines for judges, institutions and healthcare professionals to use in their assessment of applications for authorization to provide care. Through a careful review of the circumstances of each case, the courts have shown that they are committed to effectively circumscribing complex health situations by ensuring that institutions have the tools they need to respond appropriately. Lastly, we must recognize that while progress has been made, there are still unresolved issues that need to be addressed. Recent court decisions, including the one that led to the R.C. decision,34 illustrate the importance of constant dialogue between those involved in the legal aspect of cases and those dealing with clinical realities. As jurisprudence continues to develop, paying close attention to future developments will be key to ensuring that healthcare institutions can act effectively in consideration of patients’ needs. 2024 QCCA 1231. F.D.c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. See the landmark decision, Institut Philippe Pinel de Montréal c. A.G., 1994 CanLII 6105 (QC CA). Institut Philippe Pinel de Montréal c. A.G., 1994 CanLII 6105 (QC CA). M.H. c. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale, 2018 QCCA 1948, para. 57. F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. This decision, para. 13; with reference to Institut Philippe Pinel de Montréal c. A.G., 1994 CanLII 6105 (QC CA), pp. 28 to 33. This decision, para. 14; with reference to M. B. c. Centre hospitalier Pierre-le-Gardeur, 2004 CanLII 29017 (QC CA), para. 45; M.C. c. Service professionnel du Centre de santé et de services sociaux d’Arthabaska-et-de-L’Érable, 2010 QCCA 1114, para. 13. This decision, para. 14; with reference to M. B. c. Centre hospitalier Pierre-le-Gardeur, 2004 CanLII 29017 (QC CA), para. 46. This decision, para. 14, with reference to Starson v. Swayze, 2003 SCC 32, para. 79 and M.H. c. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale, 2018 QCCA 1948, paras. 61–62. This decision, para. 18. We have excluded the following decisions from our analysis: Bédard c. Centre intégré universitaire de santé et de services sociaux du Nord-de-l’Île-de-Montréal, 2023 QCCA 508; M.G. c. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale, 2019 QCCA 203; S.F. c. CIUSSS de Centre-Ouest-de-l’île-de-Montréal – Hôpital général juif – Sir Mortimer B. Davis, 2021 QCCA 1531; P.L. c. Centre intégré de santé et de services sociaux de la Montérégie-Centre, 2018 QCCA 318; N.G. c. Sir Mortimer B. Davis Jewish General Hospital, 2021 QCCA 1892; F.D. c. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale, 2017 QCCA 1206. F.D.c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. Ibid. M.H.c. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale, 2018 QCCA 1948, paras. 68 and 69. A.N. c. Centre intégré universitaire de santé et de services sociaux du Nord-de-l’île-de-Montréal, 2022 QCCA 1167 , para. 30. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale c. D.M., 2017 QCCA 1333, para. 25. Centre intégré universitaire de santé et de services sociaux du Saguenay-Lac-Saint-Jean c. O.G., 2018 QCCA 345, paras. 15 and 16. C.R.c. Centre intégré de santé et de services sociaux du Bas-St-Laurent, 2017 QCCA 328, para. 28. G.J. c. Centre intégré de santé et de services sociaux de Laval, 2021 QCCA 1944, paras. 24 to 26. Centre intégré universitaire de santé et de services sociaux de la Mauricie-et-du-Centre-du-Québec (CIUSSS MCQ) c. J.B., 2017 QCCA 1638,, paras. 30 to 35. X.Y.c. Hôpital général du Lakeshore, 2017 QCCA 1465, para. 20. A.P. c. Centre hospitalier universitaire Sainte-Justine, 2023 QCCA 58, para. 19. L.C. c. Centre hospitalier de l’Université de Montréal (CHUM), 2015 QCCA 1139, paras. 4 and 5. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, 2016 QCCA 1734, para. 31. T.F. c. CIUSSS de l’Est-de-l’île-de-Montréal , 2022 QCCA 1306, para. 25. N.M. c. Centre intégré de santé et de services sociaux de la Montérégie-Centre, 2022 QCCA1567, para. 17. M.G. c. Centre intégré universitaire de santé et de services sociaux du Centre-Sud-de-l’Île-de-Montréal , 2021 QCCA 1326, para. 11. Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’île-de-Montréal (Douglas Mental Health University Institute) c. I.A., 2023 QCCA 1100, para. 30. Institut universitaire en santé mentale Douglas c. W.M., 2016 QCCA 1081, para. 5 A.D. c. Centre intégré universitaire de santé et de services sociaux du Centre-Sud-de-l’île-de-Montréal, 2023 QCCA 1240, paras. 50, 56–57. A.F. c. Centre intégré de santé et de services sociaux des Laurentides, 2021 QCCA 928, para. 50. F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. CIUSSS de l'Ouest-de-l'Île-de-Montréal (St. Mary’s Hospital Center) c. R.C.,2024 QCCA 1231.

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  2. Lavery celebrates International Women’s Day today

    Lavery celebrates International Women’s Day today   Today, Wednesday, March 8, we celebrate International Women’s Day. IWD is an opportunity to honour those who inspire us every day and who continue to demonstrate the progress we’ve made towards gender equality in the workplace, setting an example for future generations. This year, several of the firm’s women professionals shared why they decided to become lawyers. They talked about how they view women’s contributions to the evolution of the legal profession, how the profession has changed since they started and how it will continue to change. Louise Cérat Former Partner I decided to become a lawyer as the result of a simple but happy accident. From the beginning of my legal studies, I was aware of how lucky I was. I’ve sincerely enjoyed practicing law and have always felt privileged to be part of this community and the firm, which is the only place I’ve ever practiced, a place I am deeply attached to. When I first started out, the situation in the 80’s could have, in many ways, scared off even the most fearless among us. At first, there were not many women in the field. There were only two of us when I joined Lavery, which had been created following a recent merger and which comprised, if I’m not mistaken, about fifty lawyers at the time. Bear in mind, it was only in 1980 that the Act to establish a new Civil Code introduced the notion of equality between spouses in the management of family property and the education of children. However, the recognition of gender equality in 1980 didn’t mean that it was immediately reflected in the legal world as it is today. For example, there was no maternity leave policy in most large law firms until the late 1980s, and even then it was a rather feeble policy aimed only at salaried lawyers. The few women lawyers who became partners and got pregnant had to cover the income the firm lost as a result of their absence, not to mention the other difficulties they faced. Since then, stronger numbers have won us some battles, but the campaign is not over yet! The influx of female lawyers has brought an abundance of talent, renewed professionalism, a fresh perspective and added value to the legal world and to society in general, which were lacking for far too long. As we celebrate International Women’s Day, I call on men’s support to achieve equality for their wives, sisters, colleagues and friends, and I’m confident we’ll get there.   Justine Beauchesne Associate I realized this was the career I wanted to pursue during my time at university. Very early on in my career, I had a strong interest in business law, especially transactional law. I like the idea of being more than just a company’s lawyer, which is why I also see myself as a business partner. This profession is full of challenges, but accompanying our clients through transactions that are often significant milestones in their lives gives me a strong sense of accomplishment.   Women have made important contributions to the legal community throughout history, despite facing obstacles and discrimination. Women fought for the right to study law, to be admitted to the bar and to practice. These efforts have enabled today’s women to become judges, legal professionals and leaders in the field of law.   In recent years, women have continued to break down barriers in the legal world. There are more and more women law school graduates, and they are increasingly represented in the justice system and in leadership roles. They play a key role in shaping the legal community and in advocating for gender equality and social justice.   I believe women have brought new insight and a different approach to the legal profession. They have also been instrumental in the fight for gender equality and social justice, making significant contributions to the development of the legal system and shaping the legal landscape and even society as we know it. The increased presence of women in the legal world, and particularly in management positions, is bringing a much-needed change to this more conservative environment. If more women take on leadership roles in law firms, corporate legal departments and other legal organizations, they can help to create a more diverse and inclusive profession that is gender sensitive and more reflective of the communities it serves.     Marie-Hélène Jolicoeur Partner From the beginning, I had a desire for justice and fairness. I was also determined to speak up for those who can’t speak for themselves, who find it difficult to express or defend themselves, or who have trouble arguing a position with determination. I wanted to understand the law in order to be able to interpret it and ensure that it is properly applied. Women sometimes have different skills; they can present things from an alternative perspective and convince people in a different way. Women’s contribution to the legal profession is substantial and I feel it is recognized by my male peers. I’ve noticed that more and more women are finding their place in the business, building confidence and being heard. I see them in decision-making roles, which has been positively received. They are supported by their peers. I believe that they will continue to play an increasingly important role, if that’s what they want, and as long as they express this desire and remain supported.   Marie-Pier Landry Article Student I was motivated to become a lawyer by the varied intellectual challenges, the development opportunities and the human relations at the heart of the legal practice. I am lucky to have many women role models in my professional circle. I see empathy, leadership and passion in their practice. I am certain that bringing more women into the legal profession makes for a more inclusive and fair legal system.   Sophie Roy Senior Associate At first, I was first driven by the concept of justice. I also wanted to become a lawyer in order to speak out and be heard. Without falling into gender stereotypes, women’s presence has certainly contributed to making the legal profession more inclusive. The ability to listen and to collaborate seem to be increasingly important values.   Justine Chaput Associate What inspired me to become a lawyer was first and foremost my desire to make a difference in my community and to tackle the intellectual challenges of the legal field.   I believe women have brought new insight and a different approach to the legal profession. They have also been instrumental in the fight for gender equality and social justice, making significant contributions to the development of the legal system and shaping the legal landscape and even society as we know it. I am confident that the contribution of women to the legal profession will continue to evolve and help eliminate prejudice and discrimination in order to ensure equal opportunities.   Marie-Nancy Paquet Partner I have always felt that I needed to fulfil my dreams and use my talents. This was especially important to me because my mother regretted all her life that she had not been able to achieve her professional goals, and she suffered as a result of this. For her children, it was an exhortation to never give up. Moreover, for as long as I can remember, I have had a tendency to be very vocal. It soon became clear to me that a career as a lawyer would be an opportunity to put my skills to good use. Having said that, I didn’t really know what it meant to be a lawyer, as no one in my environment practised law or had even been to university. In my opinion, the contribution of women to the evolution of the legal profession is essential. We must not forget where we started and how far we have come thanks to the courage of our predecessors. I can’t help but think of all the women who would have had the talent to practice law, but couldn’t even think about doing that in their day. In the legal profession, women first had to prove that they had as much right to be there as their male colleagues. I have deep admiration for the trailblazing women who embraced careers as lawyers when they were the outliers in their classes. One look through a yearbook from the 1950s-1960s is enough to see that women were hardly there at the time. Among the 70 or so law graduates at my university in 1960, there were only three women. It took courage to study law as a woman! Things have changed and there are far more women in the field now, especially in the undergraduate cohorts. But challenges remain. However, one element is worth noting, and that is the influence that women have had on the transformation of the work-life balance. The fact that young men working in law are now also interested in this issue is undoubtedly due to the fact that women have entered the profession and, more generally, all areas of professional life. Looking towards the future, we must continue to work to ensure that the remaining glass ceilings are broken and that both men and women can find an equal place in the profession.   Jennifer Younes Article Student Growing up, I witnessed a range of situations where individuals were marginalized. As a result, I chose to study law to reduce the inequalities that exist between different groups of people. In my opinion, lawyers are the voice of justice and I chose to become a lawyer because I wanted to serve the cause of justice. Certainly the growing number of women in the legal profession in recent decades has had a positive impact on the evolution of the legal profession. The sharp increase in the representation of women has enabled the courts to have a more complete appreciation of certain issues, and will continue to do so into the future. In my opinion, the more stories we have in the field, the deeper and more diverse our legal discussions become. And the more diverse the legal community becomes, the more accessible it will be to members of these previously unrepresented groups.

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  3. Confinement in an institution: a judge must intervene where evidence is insufficient

    In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the Court must allow the parties to remedy deficiencies in the evidence rather than dismissing the application. The Court of Appeal based its reasoning on the following articles: Article 268 of the C.C.P.2 allows a judge to draw a lawyer’s attention to any deficiency in the proof of procedure and authorize the parties to remedy it, especially when the judge notes that the insufficient evidence concerns an essential element and could affect the outcome of the dispute. Article 50 of the C.C.P. gives judges the power, even on their own initiative, to require the attendance of witnesses or the presentation of evidence. Given the importance for a judge to make an informed decision, both with respect to a patient’s personal integrity and in assessing the danger they may pose to themselves or to others, the Court of Appeal considers that a judge has an obligation to exercise their discretionary power and require the attendance of one or even both psychiatrists who signed the reports filed in support of an application.  In 2009, the Court had previously concluded that a judge in charge of ruling on an application for confinement in an institution is at liberty to [translation] “report, at the time of the hearing, that the references indicated in two sections of the form used by physicians to prepare a psychiatric examination report for an order of confinement in an institution—one concerning the reasons and facts upon which the physician has based their opinion and the other the assessment of the seriousness of the condition and its likely consequences for the patient and for others—appear to them to be insufficient.”3 It appears that this issue has been taken a step further, as the Court has concluded that the discretion granted by articles 50 and 268 of the C.C.P. must be exercised in order to give the health institution applying for confinement the opportunity to complete its evidence. Centre intégré de santé et de services sociaux de l’Outaouais v. J.L., 2022 QCCA 792 Code of Civil Procedure, CQLR c. C-25.01. (C.C.P.) Centre de santé et de services sociaux Pierre Boucher v. A.G., 2009 QCCA 2395, para. 38.

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  1. Isabelle P. Mercure and Marie-Nancy Paquet take over as managers of the Sherbrooke office

    Lavery is pleased to announce that Isabelle P. Mercure and Marie-Nancy Paquet have been appointed to run the Sherbrooke office. Our two partners are taking over from Christian Dumoulin, who was Managing Partner for over eight years. Isabelle P. Mercure will also be joining the firm’s Management Committee. An engaging duo We are convinced that our two partners’ complementary skills will ensure that our Sherbrooke teams are fully engaged, our business grows and our firm is well-positioned in the Estrie region. Isabelle joined the firm in 2014, specializing in transactional and tax law. She focuses her practice mainly on corporate law, trusts and taxation, and has developed a sought-after expertise with a diverse clientele of healthcare professionals.   As for Marie-Nancy, she joined Lavery in 2018 and is a partner in the litigation group. She practices mainly in civil liability, health and social services law, personal insurance and contract management, in addition to leading large-scale class actions. About Lavery Lavery is the leading independent law firm in Québec. Its more than 200 professionals, based in Montréal, Québec City, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Québec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Québec jurisdiction.

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  2. Lavery appoints five new partners

    Lavery is pleased to welcome the following professionals as partners in the firm: Dave Bouchard, Labour and Employment Law Brittany Carson, Labour and Employment Law Stéphanie Destrempes, Franchising and Distribution Ali El Haskouri, Corporate Law Marie-Nancy Paquet, Litigation and Dispute Resolution These talented lawyers who are rising to the rank of partner have shown a strong commitment to the firm and the profession in recent years, and they brilliantly embody Lavery’s values: Excellence, Collaboration, Audacity and Entrepreneurship. We offer them our congratulations on this significant achievement in their legal careers. The diversity in background of these new partners is a testament to the depth of our 360° service offering and our desire to be a growth partner for companies doing business in Quebec.

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