Act P-38: preventive confinement explained to the security guard

Act P-38 is Quebec's Act respecting the protection of persons whose mental state presents a danger to themselves or to others. It governs preventive confinement: keeping a person in hospital against their will, for up to 72 hours, when their mental state presents a serious and immediate danger. Security guards often see it in action in the emergency room. Yet it gives them no powers. Here is what the law says, who can do what, and where the guard fits in.

What is Act P-38?

Its short name comes from its number in the compilation of Quebec statutes, P-38.001. It supplements the Civil Code rules on confinement in a health institution and on psychiatric assessment (s. 1). It provides for three kinds of confinement:

• preventive confinement, decided by a physician, without the court, for no more than 72 hours
• provisional confinement, ordered by a court so that a psychiatric assessment can be carried out
• authorized confinement, ordered by a court after the assessment, for a period it sets

Preventive confinement is the one security guards see most often, in the emergency room.

Preventive confinement: who decides, and for how long?

A physician practising in a hospital centre, or in a local community service centre (CLSC) with the necessary facilities, may place a person in preventive confinement if they believe the person's mental state presents a serious and immediate danger to themselves or to others (ss. 6 and 7). A specialized nurse practitioner may do so as well. The person's consent is not needed, nor court authorization, nor a prior psychiatric examination.

Confinement lasts no more than 72 hours. At the end of that period, the person must be released unless a court has ordered the confinement extended for a psychiatric assessment. If the period ends on a Saturday or a holiday, no judge can act and releasing the person presents a danger, confinement may continue until the end of the next working day (s. 7).

Who can take a person to hospital against their will?

Only a peace officer can do so without court authorization (s. 8). They act in one of two cases:

• at the request of a crisis intervention worker who believes the person's mental state presents a serious and immediate danger
• at the request of a parent, tutor or close relative, when no crisis worker is available in time. The peace officer must then have serious grounds to believe there is a serious and immediate danger.

The institution must take charge of the person as soon as they arrive and have them examined by a physician or a specialized nurse practitioner. The peace officer remains responsible for the person until then (ss. 8 and 14).

A security guard is not a peace officer. Act P-38 therefore does not allow a guard to take someone to hospital by force, or to confine them. That power belongs to police officers and some special constables. See our article on the special constable.

The security guard's role in a hospital

In the emergency room, the security guard acts at the request of the care staff and under the institution's rules. The decision to confine a person belongs to the physician. The guard provides security: watching a person at risk of leaving, accompanying staff, helping calm a tense situation. Our article on working as a hospital security guard describes this setting.

When a person must be physically restrained, one rule applies to everyone in the institution, guards included. Force, isolation, mechanical means or chemical substances may be used as a control measure only to prevent the person from injuring themselves or others. The measure must be minimal and exceptional, and take into account the person's physical and mental condition. It is recorded in detail in the person's file, and each institution must have a protocol for applying these measures (s. 393 of the Act respecting the governance of the health and social services system).

In practice, the guard follows the hospital's protocol, often the code white procedure, and writes an incident report. Words come before action: our method for handling an aggressive client applies here too. For the limits on force, see our article on use of force.

And outside the hospital?

In a shopping centre, a building or at an event, a guard may face a person in crisis who seems dangerous to themselves or others. Act P-38 gives the guard no role. If there is a danger, the guard calls 911: police officers can then act under section 8. In the meantime, the guard secures the area and keeps the public away.

Citizen's arrest does not replace Act P-38. It targets a criminal offence, not a mental health crisis.

The rights of a person in confinement

• They must be told where they are being held, the reason for the confinement and their right to contact their relatives and a lawyer immediately (ss. 14 and 15).
• They may communicate confidentially with anyone they choose. A physician may temporarily restrict some communications, in writing and with reasons, but never those with their lawyer (s. 17).
• They may contest the confinement before the Tribunal administratif du Québec (s. 21).

Frequently asked questions

Can a security guard place someone in preventive confinement?

No. Preventive confinement is decided by a physician or a specialized nurse practitioner, in a hospital centre or an equipped CLSC (s. 7).

How long does preventive confinement last?

No more than 72 hours, unless a court orders otherwise. It may continue until the next working day if the period ends on a Saturday or a holiday and no judge is available (s. 7).

Can a security guard take a person in crisis to hospital?

Not by force. Only a peace officer, such as a police officer, can take a person to hospital against their will without court authorization (s. 8).

Can a guard hold back a person who wants to leave the emergency room?

Only under the institution's protocol and at the request of the care staff. Force is allowed only to prevent the person from injuring themselves or others, in a minimal and exceptional way (s. 393 of the Act respecting the governance of the health and social services system).

Sources

• LégisQuébec: Act respecting the protection of persons whose mental state presents a danger to themselves or to others, sections 1, 6, 7, 8, 14, 15, 17 and 21
• LégisQuébec: Act respecting the governance of the health and social services system, section 393
• LégisQuébec: Civil Code of Québec, articles 26 to 31