Commercial Litigation and Dispute Resolution Blog

In an earlier blog I discussed a recent decision that recognized the Supreme Court’s ability, in appropriate circumstances, to order that an individual submit to medical examinations as part of the process of determining whether they were competent.  The case involved lay evidence of possible incompetence but the two medical opinions required under the Patients Property Act (the “PPA”) had not been obtained because the patient refused to cooperate.

The appeal decision from that case was recently released.  The Court of Appeal upheld the lower court’s decision and, in doing so, confirmed some important principles.

Firstly, the Court of Appeal reiterated the fundamental importance of personal autonomy.  The starting point is, therefore, a presumption that a patient has legal capacity.

Secondly, the Court recognized that there is no statutory authority to order medical examinations without consent or proof of incompetence.   They also noted that courts cannot exercise any inherent or parens patriae jurisdiction where to do so directly contravenes a statutory provision.  Parens patriae jurisdiction is a power exercised by the courts for the protection of those who cannot care for themselves.  It must be exercised in the best interests of the protected person and for their benefit or welfare.

Thirdly, and most importantly, the Court of Appeal confirmed that the parens patriae power may be used to order medical examinations where there is otherwise a legislative gap.  In this case, the legislative gap existed because none of the relevant statutory authority covered the situation of an individual who may be in need of the court’s protection but who will not cooperate in obtaining the statutorily required medical opinions.  The PPA mandates that before a declaration of incompetence can be made by the court, two medical opinions must be obtained confirming the patient is incompetent.  The Court of Appeal reasoned that in cases where there is an impediment to obtaining medical opinions (such as lack of consent) and the patient may be incapable of making free choices, they would be beyond the assistance of the court.  They have neither individual autonomy, nor the necessary protection. 

In such cases, the parens patriae jurisdiction may be invoked to order medical examinations, even where the issue of competence has yet to be determined.  Such authority is to be exercised cautiously and only on a proper evidentiary basis.  The onus is on the person seeking the medical examinations to establish a serious question over the competence of the patient.   The lower court described this as “prima facie proof of incompetence”.  The Court of Appeal declined to articulate the exact nature of the evidentiary standard to be met beyond noting it was “a high evidentiary threshold”.  This was because the exercise of the parens patriae power is discretionary and governed by the facts of the individual case. 

Lastly, the Court of Appeal affirmed the legal distinction between the test for establishing testamentary incapacity and the test for establishing incapacity to manage yourself or your affairs.  A person may be capable of making a will but incapable of managing themselves or their affairs.  On an application over their competence, it is the later test that is relevant.  Evidence about testamentary capacity may inform the decision but is not determinative.

This case provides important guidance for families struggling to deal with uncooperative or alienated loved ones who refuse the medical examinations necessary to get a protective court order.  In appropriate circumstances, and when presented with the right type of evidence, the court will order those medical examinations to take place.  The court will do so over the objections of both the patient and anyone else who opposes.