Temoin v Martin, 2012 BCCA 250

In this case, the British Columbia Court of Appeal considered the issue of whether the Supreme Court of British Columbia has the power to order a psychiatric examination of a person who appears to be incapable of managing his or her own affairs when the person in question will not voluntarily undergo examination. The Court of Appeal agreed with the Supreme Court judgment that the court does in fact have the power to order an assessment under its “parens patriae jurisdiction”, which gives the court control over vulnerable persons incapable of protecting themselves. However, the court stressed that the presumption of mental fitness under the Patients Property Act remains intact and the court must only order medical assessments in exceptional circumstances. 

The plaintiff, Lynne Temoin, had concerns that her father, Llewellyn Martin, was unfit to manage his finances or create a will due to dementia and sought an order declaring that he was incapable of managing his own affairs. A psychiatric examination of Mr. Martin confirmed that he did not have the capacity to make a will but did not assess his ability to manage his own affairs. As Mr. Martin refused to undergo such an assessment, the court was unable to make a declaration of incapacity under the Patients Property Act, which presumes a patient fit to manage his affairs unless two medical examinations provide evidence to the contrary. Justice Neilsen held that the Act contains a legislative gap regarding the court’s ability to order a patient to undergo psychiatric examination and thus looked to the legislature’s intent to determine the proper course of action. He reasoned that the purpose of the Act is to protect the autonomy of capable individuals by ensuring a rigorous protocol for declaring a patient unfit to manage his or her own affairs. However, he maintained that the Act does not adequately protect those mentally incapable individuals who refuse to undergo examination or do not have access to a physician. In these circumstances, the Act fails to protect the autonomy and wellbeing of these patients and thus falls out of line with its legislative objectives. The court held that in these exceptional circumstances, a party may request a court-ordered psychiatric examination of the individual in question. However, the moving party must meet a high evidentiary threshold to rebut the Patients Property Act presumption of fitness. Furthermore, the court stressed that its parens patriae power must be exercised very cautiously in order to maintain the Act’s objective of protecting free choice. Ultimately, the court concluded that Ms. Temoin had not discharged this burden of proof and declined to order Mr. Martin to undergo a medical examination.

Link to Decision

Maeve Clougherty

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