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No Malpractice as deemed to consent to Treatment

It is not an assault or battery when a certified citizen is forced into treatment against his or her will. Therefore, this patient was deemed to have consented to treatment because of his certification under the Mental Health Act.

The claimant was a patient held under the Mental Health Act for 13 years. After being released he sued for negligent certification and treatment. His claim was dismissed as out of time. On appeal he argued that there is no timing issue for assault or battery. The appeal was dismissed.

In finding that the patient had deemed to have consented to the treatment the Court of Appeal stated,

[28]   In my view, the potential for apprehension under a statute which authorizes involuntary treatment of persons meeting certain criteria, and which applies to everyone in the Province, cannot constitute an assault…

[29]        In my view…a patient who has been certified is deemed to have consented to treatment upon the completion of specified forms. (N.E.T. v. British Columbia (Attorney General), 2018 BCCA 380)

A Form 5 Consent for Treatment (Involuntary Patient) was completed by a registered nurse and one of the doctors. In effect, the Act authorized the nurse to provide consent on behalf of the appellant.

Consent is a legal construct, according to the court. In some circumstances it must be expressly given by the patient; in others it may be supplied by a third party who has the right in law to provide substituted consent.

The administration of medication by healthcare providers in accordance with the Mental Health Act therefore does not constitute an assault or battery.

Tags: Assault and battery, Consent authorization forms, Form 5 Consent for Treatment (Involuntary Patient), Mental Health Act

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