Court Ordered Examinations to Determine Incapacity in British Columbia


In British Columbia, the Patients Property Act (the “Act”) allows a person to apply to the Court for a declaration that another person is incapable of managing himself/herself or his/her affairs. Such incapacity may be due to mental infirmity arising from disease, age or otherwise, or disorder or disability of mind arising from the use of drugs. In order to succeed, the applicant must submit to the Court affidavits from two medical practitioners providing their opinion that the person who is the subject of the application is incapable of managing himself/herself or his/her affairs.

But what if the person who is the subject of the application refuses to be examined by medical practitioners in order for them to provide the medical opinion, and the applicant is otherwise unable to obtain the required affidavits?  The issue was considered in Temoin v. Martin, 2011 BCSC 1727 [Temoin], a BC Supreme Court decision, which has recently been affirmed by the BC Court of Appeal. In that case, a daughter brought an application seeking a declaration that her father was incapable of managing himself and his affairs. The daughter did not submit the required two affidavits from medical practitioners attesting to the father’s capacity because the father had refused to be assessed. The daughter sought, among others, an order that her father attend a medical examination in order to provide the affidavits in support of her application.

It has been settled law for many years that the Act does not provide that the Court can order a medical examination before two medical affidavits have been produced. The daughter argued that there is a  legislative gap in the Act, and the Supreme Court of British Columbia has inherent jurisdiction to order an examination to protect a vulnerable person. Specifically the type of jurisdiction in these cases is called parens patriae which effectively invokes a court’s protective jurisdiction over the vulnerable.

The Supreme Court judge agreed that the Court has the jurisdiction to make an order that a person who is the subject of an application under the Act attend an examination with a physician. However, such jurisdiction must be exercised in rare circumstances.  The Court balanced the intrusion to personal autonomy by compelling a person to submit to a medical examination and the necessity to protect a person who is personally or financially vulnerable due to things such as dangerous or erratic behavior or abuse by others, and decided that such inherent jurisdiction can only be exercised in rare circumstances, in which there is evidence to establish that the person who is the subject of the application is prima facie incompetent.

In Temoin, the Court decided that the evidence was not sufficient to establish that the father was prima facie incompetent or in need of protection and refused to compel the father to attend a medical examination. However, this case opens the door that, in certain circumstances, a person may be able to apply for a declaration of incapability under the Act without the two required medical affidavits, and ask the Court to exercise its inherent jurisdiction to order that the proposed patient undergo medical assessment in order to obtain the necessary affidavits.