Mental Health Act: Involuntarily Admitted Patients (14:VII)

Patients who are admitted to a mental health facility without their consent are admitted involuntarily. The MHA provides mechanisms for both short-term emergency admissions and for long-term admissions. The HCCFA and all of its requirements for consent to treatment do not apply to psychiatric treatment of involuntarily admitted patients. Involuntarily admitted patients therefore have few rights in this area by statute, although some parts of the MHA could potentially be challenged under the Charter.

The Mental Health Law Program (MHLP) at CLAS assists involuntarily admitted patients at review panel hearings. LSLAP clinicians should contact CLAS to see if a referral is appropriate. Access Pro Bono (APB) is also starting a Mental Health Program for clients who have been detained under the MHA and who are unable to obtain legal representation through CLAS. All referrals will first be made through the MHLP/CLAS. If CLAS is unavailable, they will refer the patient to APB. APB will then attempt to find volunteer lawyers and law students to legally represent the patient at his or her scheduled Mental Health Review Board Hearing (see Resources section of this Chapter or Chapter 22: Referrals).

Section 22 of the MHA provides that a person may be admitted involuntarily and detained for up to 48 hours. The person must first be examined by a doctor and the doctor must provide a medical certificate stating that he or she is of the opinion that the person has a mental disorder and requires treatment to prevent "the substantial mental or physical deterioration" of the person or to protect that person or others. A second doctor must provide a second certificate for the person to be detained longer than the initial 48 hours. Mullins v Levy 2009 BCCA 6, the leading case in this area, applied a broad definition of “examination” and stated that the MHA does not require a personal interview of the patient in every instance. However, a patient is entitled to request a review hearing according to certain prescribed periods that depend on the length of time the patient has been detained or that his or her detention has been renewed.

When the patient is re-evaluated, the facility must determine whether the involuntary admission criteria still apply and whether there is a significant risk that if the patient is discharged, he or she will be unable to follow the prescribed treatment plan and be involuntarily admitted again in the future. Patients, even those no longer suffering from the symptoms of mental disorder, may continue to be detained if the risk is significant.

The MHA also potentially allows involuntarily committed patients to be granted leave or extended leave under certain conditions. This means that the patient may be permitted to live outside the facility, but will still be considered to be involuntarily committed, and will remain subject to the provisions in the MHA.

A. Restraint and Seclusion While Detained Under the MHA

BC’s MHA is silent on the issues of restraint and seclusion. Section 32 merely provides that every patient detained under the Act is subject to the discipline of the director and staff members of the designated facility. Issues around restraint and seclusion have yet to be thoroughly considered in BC, and there are few cases in Canada that address them. In Mullins v Levy 2009 BCCA 6, the plaintiff sued a hospital and its staff for negligence, false imprisonment and battery after he was detained and medicated for five days against his wishes after doctors decided he required treatment for mania. The plaintiff also argued that his Charter rights were violated, and challenged the MHA and the HCCFA as unconstitutional, though the Court did not rule on the Charter arguments. The claim was denied at the BCCA on factual grounds, and the Supreme Court declined to hear Mullins’ appeal.

This leaves the patient’s rights in the hands of facility policy-makers. Such policy focuses on the benefits that seclusion may give to a patient for treatment purposes and regard is given to the safety of hospital staff. The uncertainty of the law in this area, combined with a serious potential for the deprivation of patients’ rights, leaves open the possibility of a Charter argument to uphold patients’ rights.

B. Short-Term and Emergency Admissions

A person may be detained in a psychiatric facility upon the receipt of one medical certificate signed by a physician (s 22(1)). Such involuntary confinement can last for a maximum of 48 hours for the purposes of examination and treatment. A second medical certificate from another physician is required to detain the patient for longer than 48 hours (s 22(2)). As an alternate to the admissions criteria under the MHA, a patient may be given emergency treatment under s 12 of the HCCFA if they have not been involuntarily admitted.

1. Authority of a Police Officer

If a police officer believes a person has an apparent mental disorder and is acting in a manner likely to endanger that person’s own safety or the safety of others, the police officer may apprehend and immediately take the person to a physician for examination (see MHA, s 28(1)).

2. Authority of a Provincial Court Judge

Anyone may apply to a Provincial Court judge to issue a warrant authorizing an individual’s apprehension and conveyance to a mental health facility for a period not to exceed 48 hours. To grant this warrant, the judge must be satisfied that admission under s 22 is not appropriate and that the applicant has reasonable grounds to believe that s 22(3)(a)(ii) and (c) of the MHA describe the condition of the individual (see MHA, s 28(4)).

C. Application for Long-Term Admissions

A person can be admitted to a facility by the director of a provincial health facility on receipt of two medical certificates, each completed by a physician in accordance with s 22(2). The patient will be discharged one month after admittance unless the detention is renewed in accordance with s 24 of the MHA.

D. Contents of Medical Certificates (MHA, s 22 (3))

The certificates must contain:

1. A physician’s statement that the individual was examined and the physician believes the person has a mental disorder;
2. An explanation of the reasons for this opinion; and
3. A separate statement that the physician believes the individual requires medical treatment in a provincial mental health facility to prevent the person’s substantial mental or physical deterioration, to protect the person, or to protect others, and cannot be suitably admitted as a voluntary patient.

For admission to be valid, the physician who examined the person must sign the medical certificate and must have examined the patient not more than 14 days prior to the date of admission. For a second medical certificate to be valid, it must be done within 48 hours of the patient’s admission. The MHA does not give details about the type of examination required, nor does it require that the patient be told the purpose of the examination or that the examination is even being conducted. This practice may be open to a Charter challenge. (See Mullins v Levy, (2009), 304 DLR. (4th) 64 (BCC.A.)).

E. Consent to Treatment

Under s 31, a patient who is involuntarily detained under the MHA is deemed to consent to any treatment given with the authority of the director. This will override any decisions made by a patient’s committee, personal guardian or representative.

An involuntary patient or someone on his or her behalf may request a second medical opinion on the appropriateness of the treatment authorized by the director. Under s 31(2) a patient may request a second opinion once during each detention period. Under s 31(3) upon receipt of the second medical opinion, the director need only consider whether changes should be made in the authorized treatment for the patient. There is no statutory right of appeal from the director’s decision. This may be open to a Charter challenge.

F. Right to Treatment

Section 8 of the MHA requires directors to ensure that patients are provided with "treatment appropriate to the patient's condition and appropriate to the function of the designated facility." However, the content of such treatment and the scope of what this entitles patients to is unresolved. It is unclear what would constitute a failure to provide treatment and whether a facility would be bound to discharge a patient should a failure be found.

A patient held without any treatment whatsoever may be able to claim civil damages on the basis of non-admission of treatment constituting a breach of statutory duty. Even though what constitutes appropriate treatment is within the discretion of the institution to determine, the common law of medical malpractice applies to treatment administered in a mental health facility.

G. Right to be Advised of One’s Rights

Pursuant to s 34 of the MHA, directors must fully inform patients orally and in writing of their s 10 Charter rights and the MHA provisions relating to: duration, review, and renewal of detention; review hearings; deemed consent and requests for second opinions; and court applications for discharge. Directors are bound to ensure that patients are able to understand these rights.

H. Transfer of Patients or Extended Leave

Section 35 of the MHA gives the director authority to transfer a patient from one facility to another where the transfer is beneficial to the welfare of the patient. Under s 37, a patient may be given leave from the facility (no minimum or maximum time periods are specified for the duration of the leave). Under s 38 a patient may also be transferred to an approved home on specified conditions – however, there are currently no approved homes in BC.

A person released from a provincial mental health facility on leave or transferred to an approved home is still considered to be admitted to that facility and held subject to the same provisions of law as if continuing to live at the institution (s 39(1)). The patient is still detained under the MHA and will be subjected to treatment authorized by the director, which is still deemed to be given with the consent of the patient. If the conditions of the leave or transfer are not met, the patient may be recalled to the facility he or she is on leave or was transferred from, or to another authorized facility (s 39(2)). There is no statutory obligation on the institution to inform the patient that the leave is conditional or has expired, leaving the possibility that a patient may unknowingly violate the terms of his or her leave.

Under s 25(1.1) if a patient has been on leave or transferred into an approved home for more than 12 consecutive months without a request for a review panel hearing, his or her treatment record must be reviewed, and if there is a reasonable likelihood that the patient could be discharged, a review panel must be conducted. However, in practice, the review panel contacts the patient to ask if they want a hearing.

I. Discharge of Involuntary Patients

1. Through Normal Hospital Procedure

The director may discharge or grant leave to a person from an institution at any time (ss 36(1) and 37 of the MHA). Under s 23 “a patient admitted under s 22 may be detained in a provincial mental health facility for one month after the date of their admission, and they shall be discharged at the end of that month unless the authority for their detention is renewed in accordance with s 24”, for further periods of one month, three months and six months.

2. Through a Review Panel Hearing

An involuntary patient is entitled to a hearing before a review panel. Generally, a patient may have a hearing once during each period of detention. The application for a review panel hearing may be made by the patient or by someone else on the patient’s behalf (s 25). The application is completed by filling out an Application for Review form contained in the MHA Regulations (the “Regulations”.) Section 6 of the Regulations describes the conduct of review panel hearings. Students are encouraged to contact the Mental Health Law Program at CLAS for advice and a possible referral.

A hearing takes place before a panel of three people, which must include a medical practitioner, a member in good standing with the Law Society of British Columbia (or a person with equivalent training) and a person who is not a medical practitioner or a lawyer.

The Ministry of Health appoints all three members from a list of people previously accepted by Order in Council.

It is policy that to maintain a quasi-judicial character, those who sit on the panel do not have access to the patient prior to the hearing. Decisions are based on evidence and testimony presented at the hearing only. Section 24.3 of the MHA gives the review panel power to compel witnesses and order disclosure.

The hospital’s position is presented by another medical person acting as the hospital’s representative, usually another member of the medical staff. The patient can be represented by counsel or by an advocate who can present the patient's position at the hearing.

The review panel may examine the current hospital record of the patient, and the records of any previous admissions. Procedure at review panel hearings is subject to the principles of fundamental justice under s 7 of the Charter and due process under the common law, as well as the provisions of the Administrative Tribunals Act listed under s 24.2 of the MHA.

NOTE: Adjournments are procedural options when appearing before a panel.

a) Patients’ Rights at Review Panel Hearings

The patient may retain counsel for representation at the hearing. This representative need not be a lawyer. Representation at a panel is provided free of charge by the Mental Health Law Program of the CLAS staff within the lower mainland or on an ad hoc basis outside of the lower mainland (see Section II.B.2: Resources for contact information).

The rules of natural justice dictate that one has a right to appear at one’s own hearing. However, under s 25(2.6) of the MHA the chair of the review panel may exclude the patient from the hearing or any part of it if they are satisfied that exclusion is in the patient’s best interests. The patient or counsel can call witnesses to give evidence that supports the patient’s argument in favour of discharge. Within 48 hours of the end of the hearing, the review panel must decide (by majority vote) whether or not the patient’s detention should continue. Decisions must be in writing. Reasons must be provided no later than 14 days after the hearing. Section 25(2.9) of the MHA compels the panel to deliver a copy of the decision without delay to the mental health facility’s director and the patient or his or her counsel. If the decision is that the patient be discharged, the director must immediately serve a copy of the decision on the patient and discharge him or her.

b) What the Review Panel Must Consider

Under s 25(2) the review panel is authorized to determine whether the detention of the patient should continue. The patient’s detention must continue if ss 22(3)(a)(ii) and (c) continue to describe the patient. That is, the patient is a person with a mental disorder who requires treatment in or through a designated mental health facility; the patient requires care, control and supervision in or through a designated mental health facility; the patient is a threat to him or herself or others; or detention is necessary to prevent substantial deterioration of the patient’s mental or physical person and he or she is unsuitable as a voluntary patient. A review panel hearing must be conducted notwithstanding any defects in authority for the initial or renewed detention pursuant to s 22.

The review panel must consider the past history of the patient, including his or her past history of compliance with treatment plans. The panel must assess whether there is a significant risk that the patient will not comply with treatment prescribed