(Please note the information contained in this article is mostly applicable to the Quebec context.)
The representation of incapable adults before the courts raises many legal, ethical, and deontological questions. The undersigned wishes to address these complex issues in a series of successive articles. This article describes the aspects of civil procedure for representing an incapable adult. After a discussion of the main applicable concepts, a more pragmatic analysis of the issues is carried out.
Applicable legal principles
Assessment of Incapacity
To determine whether an adult can or should be represented, the court must determine prima facie that the adult is incapable (Decision 1, para. 20). In other words, a final judgment is not necessary.
The appointment of a lawyer must be necessary to safeguard the rights and interests of the minor or incapable adult.
In criminal matters, the judge is then required to appoint a lawyer for the adult. (Decision 1, para. 49)
In civil matters, article 90 CCP provides that the court has discretion; the appointment of a lawyer must be necessary. (Decision 3)
When it is a case involving an infringement of integrity (as in matters of care) and/or deprivation of liberty (forced custody), then the appointment of a lawyer is presumed necessary to safeguard rights; however, this presumption can be rebutted.
In the context of care:
- If the person concerned is not represented by a lawyer, the judge must consider appointing one ex officio. (Decision 1, para. 32)
- Before the hearing, the hospital must take the necessary measures so that the person concerned can benefit from the assistance of a lawyer if they wish. (Decision 1, para. 57)
- At the opening of the hearing, the judge must check whether the person is represented by a lawyer. If this is not the case and legal assistance seems necessary, the judge must suspend the proceedings until a lawyer is appointed. (Decision 1, para. 58)
- If the judge considers that the person is unfit to make decisions concerning their care, but is not certain that a lawyer is essential, they must postpone their decision and examine the evidence presented. (Decision 1, para. 58-61)
- The judge must play an active role during the hearing by asking questions on important points, in particular the diagnosis, the proposed treatment and its duration. (Decision 1, para. 58-62)
- The judge must take into account all the elements of the case to make their decision. For example, the presence and support of the family can make the presence of a lawyer less crucial. (Decision 1, para. 58-62)
- If the judge has doubts as to compliance with the rules of procedural fairness or the sufficiency of the evidence, they must suspend the hearing and order the appointment of a lawyer. (Decision 1, para. 63)
- If the judge is of the opinion that the presence of a lawyer is not required, they can decide on the merits of the application by explicitly stating the reasons which led them to conclude thus. (Decision 1, para. 63)
The lawyer representing an incapable adult must act in accordance with the instructions of their client, even if these seem ill-advised or difficult to understand. Their role is to advise their client with diligence and competence, but they cannot substitute their own judgment for that of the client. In the event of persistent disagreement, the lawyer remains bound to present and defend the client's position before the court, in accordance with the principle that the client, even vulnerable, retains the final decision. (Decision 3)
In Decision 3, Justice Rothman, for the majority, points out that the incapable adult may or may not have the necessary faculties to express their opinion. Justice Pelletier was of the opinion that a person with overly reduced mental faculties could not be assigned a lawyer by the court. Consequently, in theory, it is possible to appoint a lawyer to an incapable adult without the latter being able to express their opinion. In practice, such a situation is unlikely to occur.
Discussion
A broader reading of the published judgments makes it possible to add to the previous observations.
First, three categories of principles are weighed by the courts when determining whether an incapable adult should be represented in a civil law case:
- Fundamental rights (integrity, freedom);
- The efficiency of debates and procedures;
- The right to a lawyer.
In cases that do not involve care, we find that the courts are reluctant to appoint a lawyer for the incapable adult (Decisions 4, 5, 6). However, it happens that lawyers are appointed. (Decision 7) An incapable adult who wishes to be represented should ideally demonstrate that their point of view is not adequately covered by the points of view of the other parties to the case, in order to justify a complication of the proceedings.
Conversely, in the context of care, the courts tend to suspend proceedings. They can, pending the selection of a lawyer, issue safeguard orders. (Decisions 9 and 10)
Among the most frequent factors justifying the refusal to appoint a lawyer for the incapable adult are:
- The risk of weighing down the proceedings (Decision 6)
- The adult's refusal to be represented (Decisions 1, 8, 10, 11)
- The presence of a family member participating in the defense of the adult (Decision 1, para. 61; Decision 2, para. 23) or representing the position of the incapable adult. (Decision 5)
References
Decision 1: A.N. v. Centre intégré universitaire de santé et de services sociaux du Nord-de-l'Île-de-Montréal, 2022 QCCA 1167
Decision 2: M.G. v. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale, 2019 QCCA 203
Decision 3: F. (M.) v. L. (J.), 2002 CanLII 63106 (QC CA)
Decision 4: C.G. et F.Gi., 2022 QCCS 3709
Decision 5: M.M. et F.L., 2019 QCCS 2084
Decision 6: B.V. v. O.C., 2005 CanLII 25712 (QC CS)
Decision 7: Proulx-Michaud v. Proulx, 1998 CanLII 9581 (QC CS)
Decision 8: Centre intégré universitaire de santé et de services sociaux de l'Estrie - Centre hospitalier universitaire de Sherbrooke v. R.H., 2024 QCCS 4143
Decision 9: Centre intégré universitaire de la santé et de services sociaux de la Capitale-Nationale et B.M., 2024 QCCS 3130
Decision 10: Centre intégré de santé et de services sociaux (CISSS) de Chaudière-Appalaches v. M.S., 2024 QCCS 423
Decision 11: CHU de Québec - Université Laval v. R.F., 2023 QCCS 5000
Decision 12: Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale v. T.M., 2023 QCCS 3314
Me Francis Hemmings, Grondin Savarese Legal Inc.