A former chief psychiatrist for the province is challenging a law that allows intoxicated people to be detained for up to 72 hours, warning it could lead to the wrongful detention of people with mental illness or disabilities and put individuals at greater risk of harm. According to a notice of application filed in Manitoba’s Court of King’s Bench on Wednesday, Dr. James Simm is challenging the constitutional validity of the Protective Detention and Care of Intoxicated Persons Act (PDCIPA) or Bill 48. The attorneys general of both Manitoba and Canada are listed as respondents. Simm, who the filing says served as the province’s chief psychiatrist from April 2022 to September 2024 and has over 25 years of clinical practice, argues that the detention regime violates multiple provisions of the Canadian Charter of Rights and Freedoms, including protections against arbitrary detention and cruel and unusual treatment. The provincial government passed the legislation last November, describing it as a response to the growing methamphetamine crisis and saying it was designed to ensure people are protected for the duration of a meth psychosis. The legislation replaced the former Intoxicated Persons Detention Act, which limited detentions to 24 hours. Under the law, people intoxicated by alcohol, drugs or other substances can be detained for 24 hours at a detention location and for 72 hours at what the legislation calls “a protective care centre.” Assessments must be carried out at “reasonable intervals” to determine if the person remains intoxicated. It stipulates that after the 24- and 48-hour marks, efforts must be made to have the person “assessed as soon as reasonably possible by a qualified health professional.” However, the filing says one of the criteria for detention—a person who causes a disturbance and is reasonably likely to continue—is subjective and “indistinguishable” from symptoms of acute mental health conditions, increasing the risk that people with mental illness will be detained instead. It also warns non-clinical personnel may misinterpret behaviours associated with neurodevelopmental disabilities as a disturbance, further increasing the risk of wrongful detention. ‘Clinically difficult to distinguish’ from psychiatric illness The court filings claim there is no reliable, real-time test capable of identifying methamphetamine impairment, and that intoxication from the substance can be “indistinguishable from acute psychiatric conditions” such as schizophrenia or delirium. It adds that someone who has used methamphetamine can exhibit the same physiological findings as someone with a primary psychotic illness. “In my opinion, this overlap makes it clinically difficult to distinguish methamphetamine-induced psychosis from primary psychiatric illness in the absence of timely physician assessment,” reads a 13-page affidavit signed by Simm. “Even for experienced emergency physicians or psychiatrists, it is difficult to determine whether disturbed behaviour is due to methamphetamine intoxication, a primary psychiatric illness, or a combination of both.” The filing also says that methamphetamine intoxication typically resolves within approximately eight to 12 hours, and in some cases, up to 24 hours. “I am not aware of clinical evidence supporting the proposition that methamphetamine intoxication persists for up to 72 hours,” the affidavit reads. The court documents further argue the act does not mandate physician involvement, creating a risk that serious medical or psychiatric conditions will go unrecognized and untreated. “Evidence based withdrawal management requires timely physician assessment, structured monitoring, and access to appropriate medications,” it reads. “The PDCIPA does not mandate such safeguards.” It claims the act “authorizes the use of seclusion-like environments without requiring physician involvement, without clear observation intervals, and without a mandatory medical evaluation within a clinically appropriate timeframe.” “For individuals experiencing psychosis, trauma responses, of stimulant-induced agitation, these conditions can significantly worsen psychiatric distress, anxiety, paranoia, and risk of self-harm.” Inconsistencies with the Mental Health Act: court files The affidavit also points to several alleged inconsistencies between the PDCIPA and the province’s Mental Health Act. It notes that a qualified health professional may order that a detained person be taken for an involuntary medical examination under section 8 of the Mental Health Act. However, the filing claims an involuntary medical examination is governed by a different section, which requires a judicial process initiated before a justice. It also claims the act fails to reference a provision of the Mental Health Act that authorizes a peace officer to apprehend and transport an individual in urgent circumstances. “In my opinion, the detention regime created by the PDCIPA departs significantly from accepted clinical practice and from the statutory safeguards contained in the (Manitoba Health Act),” it says. Simm is seeking a court declaration that the act is unconstitutional and of no effect for allegedly infringing on multiple sections of the Canadian Charter of Rights and Freedoms. The legal action is also seeking public interest standing—a legal recognition that he is an appropriate person to bring this challenge on behalf of those who cannot bring it themselves—as well as legal costs. Multiple exhibits were filed along with the court documents, including his curriculum vitae and a copy of the transcript from Bill 48’s public hearings, at which he spoke about the risks. His affidavit notes that during his tenure as Manitoba’s chief psychiatrist, he regularly provided clinical and legislative advice concerning involuntary psychiatric admission, detoxification policies, and safe-detention practices. A provincial spokesperson declined to comment on the case but confirmed that a 72-hour protective care centre designated under the act operates at 190 Disraeli Freeway. On Monday, a Department of Justice spokesperson said the Attorney General of Canada had not yet been served but would review the legal action once officially served. No statements of defence have been filed, and none of the claims have been tested in court.
