BY: JOYCE BLOND FRANK B.A., B.C.L., LL.M.

As seniors, we are constantly being told that our faculties are or will be reduced in the future. We are often told what we should or should not do. Society considers us fragile and, sometimes, “in need of protection.”

As a senior myself. I am reminded of this every time I cannot remember someone’s name. As a practicing attorney, I am constantly suggesting to my clients, young and old, that they obtain or review their wills and be sure to have a mandate in case of incapacity. As an attorney who happens to be a senior, I am interested in how the legal system protects my independence. My right to make decisions for myself is important to me and I think we must all remember that we possess autonomy until someone proves otherwise. Failure to remember this can lead to fear and fear can cause us to accept situations that are contrary to our own interests. It is often fear that permits us to tolerate financial, psychological and even physical abuse, to live with restrictions on our liberty or to forfeit our right of choice. It is therefore always gratifying when we hear of someone who has defended his freedom of choice and successfully exercised his autonomy. And this leads me to tell you about someone who did just that.

This is the story of a man who had a stroke that left him paralyzed on one side. Upon being discharged from the hospital, he was sent to a rehabilitation institute. After two months he felt he was not progressing, refused further treatment and returned home. He lived alone and unfortunately his paralysis interfered with his mobility. He fell twice and a neighbour called 911 on each occasion.

The first time the police came, he convinced them that the situation was not serious and was well in hand. However, the second time they were called, the neighbour convinced the police that the man should not be left at home especially as he smoked and could start a fire.

He was taken to the hospital, where he underwent two psychiatric evaluations on two consecutive days as is required by law.

The psychiatrist’s report on Day 1 stated that the partial paralysis resulted in a lack of physical capacity and that the patient misjudged the extent of his functionality, which made him a danger to himself and that he should remain in hospital for 30 days. The psychiatrist reporting on Day 2 wrote that because of his mental state, the patient represented a danger to himself, that a multidisciplinary evaluation was necessary before he could be allowed to return home, and he should therefore be hospitalized for 30 days.

Based on these two evaluations from the psychiatry clinic and the man’s refusal to remain in the hospital voluntarily, the hospital petitioned the court for permission to keep him for 30 days.

The man testified on his own behalf. He explained to the judge that he was aware of what had happened to him, of the problems relating to his paralysis, of the limitations to his mobility.

He admitted that his stay at the rehabilitation institute had helped him up to a point but he felt that his improvement had peaked and that there was no further progress. He felt he could better continue the exercises he’d been given in the comfort of his own home and that both his morale and motivation would increase once he was home. He disagreed with the conclusions of the psychiatrists’ reports, especially as each interview had only lasted a few minutes and the doctors seemed preoccupied with his physical rather than his mental state. He added that the help of several friends was available to him and that he was very careful when he smoked.

The judge weighed the contents of the psychiatrists’ reports as against the man’s rights as an autonomous person.

He cited provisions of the Quebec Civil Code, of the Quebec Charter of Rights and Freedoms and of the Canadian Charter of Human Rights and Freedoms, all of which state that a person has a right to life, inviolability of his person and freedom. In his opinion, as long as a person had not been declared incapable, that person must not be forced to undergo care of any kind without his consent.

Even when two psychiatric reports concluded that confinement was necessary, the court should not substitute its own consent for the consent of the person himself unless it had serious reasons to believe that that person was a danger to himself or others.

In this case, the judge balanced the person’s right to freedom of choice with the need for security both for himself and for others. The conclusion was that a person’s freedom is one of the fundamental, if not the supreme value of our society and the court will not deprive a person of that freedom unless there is a clear and present danger to himself or others.

Even if permitting the man to return home put him at greater risk than if he stayed in the hospital, in the absence of any mental condition that prevented the man from understanding the risks associated with returning home, his fundamental right to choose prevailed and the court refused to intervene and impose confinement in a hospital. As an autonomous person, that choice was his. He went home.

It feels good to know that our right to say “yes” and our right to say “no” is protected by the courts and our legal system.