Hospital Consent Required for Timing of Treatment of an Accused Unfit to Stand Trial

In criminal proceedings a court can make a disposition order (or treatment order) with respect to an accused person found unfit to stand trial, directing that treatment of the accused be carried out for a period not exceeding 60 days for the purpose of making them fit to stand trial.

For a judge to make such an order, Part XX.1 of the Criminal Code of Canada dealing with mental disorder requires that the hospital or treating physician provide their consent. Uncertainty arises, however, vis-à-vis the extent of that consent. Is the consent required only for the treatment, or does it relate to all the aspects of the disposition order including the timing of carrying out the order?

The Supreme Court of Canada recently answered that question in R v Conception, 2014 SCC 60. The Court held that a hospital or physician’s consent is not limited to the treatment, but is required for the disposition in its entirety. Consent with respect to the timing of a disposition order is necessary because the time at which treatment is to be provided is inextricably linked to the hospital or physician’s ability to provide safe and effective treatment.

Further, the Court found that the consent requirement does not deprive the accused of a timely trial or procedural fairness and is not vague or arbitrary so as to breach their right to life, liberty, and security under the Canadian Charter of Rights and Freedoms. To the extent that the consent requirement has any potential to breach the accused’s rights, the infringement would result from the exercise of the hospital’s discretion to withhold consent, not from the law.

That said, however, the Court left open the possibility of the “exceedingly rare” cases where a delay in treatment would compromise the accused’s Charter rights. In such cases, a judge is entitled to consider whether ordering immediate treatment (despite the lack of consent) would constitute an appropriate and just remedy. Where the accused’s Charter rights would otherwise be compromised, the court will have the last word in terms of the disposition order.