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Difference between revisions of "Mental Health Act: Involuntarily Admitted Patients (14:VII)"
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Mental Health Act: Involuntarily Admitted Patients (14:VII) (view source)
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{{LSLAP Manual TOC|expanded = mentalhealth}} | {{LSLAP Manual TOC|expanded = mentalhealth}} | ||
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 long-term admissions. The ''HCCFA'' or the ''Representation Agreement Act'' and all of their requirements regarding consent to treatment do not apply to the psychiatric treatment of involuntarily admitted patients. Involuntarily admitted patients therefore have few legislative rights. However, some provisions of the ''MHA'' could be challenged under the ''Charter'', such as the current CLAS challenge in BC to the “deemed consent” provisions of the ''BC Mental Health Act'' (see [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1753/2018bcsc1753.html?resultIndex=1 ''MacLaren v British Columbia (Attorney General)'', 2018 BCSC 1753]). The Attorney General of BC raised the issue of public interest standing in the above case which resulted in the case being dismissed. This decision was appealed to the BC Court of Appeal and the appeal was allowed on the issue of public interest standing in favour of the Council of Canadians with Disabilities (see Council of Canadians with Disabilities v British Columbia (Attorney General) 2020 BCCA 241). The Attorney General of BC applied for leave to appeal to the Supreme Court of Canada, and the Supreme Court of Canada heard the appeal January 13, 2022. The Supreme Court of Canada released its decision on June 23, 2022. They held that the appeal should be dismissed and awarded special costs on a full indemnity basis to the respondent throughout. The order of the Court of Appeal remitting the question of the respondent’s public interest standing to the Supreme Court of British Columbia was set aside and standing was granted to the respondent (see [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19424/index.do#:~:text=The%20claim%20asserts%20that%20the,of%20a%20substitute%20decision%E2%80%91maker. | 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 long-term admissions. The ''HCCFA'' or the ''Representation Agreement Act'' and all of their requirements regarding consent to treatment do not apply to the psychiatric treatment of involuntarily admitted patients. Involuntarily admitted patients therefore have few legislative rights. However, some provisions of the ''MHA'' could be challenged under the ''Charter'', such as the current CLAS challenge in BC to the “deemed consent” provisions of the ''BC Mental Health Act'' (see [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1753/2018bcsc1753.html?resultIndex=1 ''MacLaren v British Columbia (Attorney General)'', 2018 BCSC 1753]). The Attorney General of BC raised the issue of public interest standing in the above case which resulted in the case being dismissed. This decision was appealed to the BC Court of Appeal and the appeal was allowed on the issue of public interest standing in favour of the Council of Canadians with Disabilities (see Council of Canadians with Disabilities v British Columbia (Attorney General) 2020 BCCA 241). The Attorney General of BC applied for leave to appeal to the Supreme Court of Canada, and the Supreme Court of Canada heard the appeal January 13, 2022. The Supreme Court of Canada released its decision on June 23, 2022. They held that the appeal should be dismissed and awarded special costs on a full indemnity basis to the respondent throughout. The order of the Court of Appeal remitting the question of the respondent’s public interest standing to the Supreme Court of British Columbia was set aside and standing was granted to the respondent (see [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19424/index.do#:~:text=The%20claim%20asserts%20that%20the,of%20a%20substitute%20decision%E2%80%91maker. ''British Columbia (Attorney General) v Council of Canadians with Disabilities''], 2022 SCC 27). | ||
A similar challenge occurred in Ontario, in [https://www.canlii.org/en/on/onca/doc/2014/2014onca900/2014onca900.html?resultIndex=1 ''PS v Ontario'', 2014 ONCA 900]. The constitutionality of the provisions of the ''Mental Health Act'', R.S.O. 1990, c. M.7, which provided for involuntary committal of long-term detainees, were challenged and found to violate section 7 of the ''Charter''. The judgement stated that during an involuntary detention, the patient must be provided meaningful procedural avenues to seek the accommodation and treatment they need to be rehabilitated. It was determined that the province does not have the power to detain mental health patients indefinitely, where such procedural protections are absent. This will likely change the role patients themselves play in determining the course and nature of their treatment in Ontario. It is unclear at this stage what effect this Ontario case may have in British Columbia. | A similar challenge occurred in Ontario, in [https://www.canlii.org/en/on/onca/doc/2014/2014onca900/2014onca900.html?resultIndex=1 ''PS v Ontario'', 2014 ONCA 900]. The constitutionality of the provisions of the ''Mental Health Act'', R.S.O. 1990, c. M.7, which provided for involuntary committal of long-term detainees, were challenged and found to violate section 7 of the ''Charter''. The judgement stated that during an involuntary detention, the patient must be provided meaningful procedural avenues to seek the accommodation and treatment they need to be rehabilitated. It was determined that the province does not have the power to detain mental health patients indefinitely, where such procedural protections are absent. This will likely change the role patients themselves play in determining the course and nature of their treatment in Ontario. It is unclear at this stage what effect this Ontario case may have in British Columbia. | ||
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Under section 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, temporary substitute decision maker, or representative. | Under section 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, temporary substitute decision maker, or representative. | ||
An involuntary patient, or someone acting on their 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 to treat the involuntary patient. Currently, this issue is the subject of a ''Charter'' challenge. A decision has yet to be made regarding the issue. Please refer to [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1753/2018bcsc1753.html?resultIndex=1 ''MacLaren v British Columbia (Attorney General)'', 2018 BCSC 1753] and [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19424/index.do#:~:text=The%20claim%20asserts%20that%20the,of%20a%20substitute%20decision%E2%80%91maker. | An involuntary patient, or someone acting on their 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 to treat the involuntary patient. Currently, this issue is the subject of a ''Charter'' challenge. A decision has yet to be made regarding the issue. Please refer to [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1753/2018bcsc1753.html?resultIndex=1 ''MacLaren v British Columbia (Attorney General)'', 2018 BCSC 1753] and [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19424/index.do#:~:text=The%20claim%20asserts%20that%20the,of%20a%20substitute%20decision%E2%80%91maker. ''British Columbia (Attorney General) v Council of Canadians with Disabilities''], 2022 SCC 27. | ||
== F. Right to Treatment == | == F. Right to Treatment == | ||
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Pursuant to section 34 of the ''MHA'' and Form 13 under the ''MHR'', directors must fully inform patients orally and in writing of their s 10 ''Charter'' rights and of the ''MHA'' provisions relating to duration, review, and renewal of detention; review hearings; deemed consent and requests for second opinions; and, finally, court applications for discharge. Directors are bound to ensure that patients are able to understand these rights. | Pursuant to section 34 of the ''MHA'' and Form 13 under the ''MHR'', directors must fully inform patients orally and in writing of their s 10 ''Charter'' rights and of the ''MHA'' provisions relating to duration, review, and renewal of detention; review hearings; deemed consent and requests for second opinions; and, finally, court applications for discharge. Directors are bound to ensure that patients are able to understand these rights. | ||
British Columbia has also recently introduced legislation that will allow amendments to the MHA so that people involuntary admitted under the act will be given the option to meet with and access support from an independent rights advisor. This service is expected to be available in 2023 and will be delivered by a team of independent rights advisors who will provide information and answer questions regarding rights and obligations under the | British Columbia has also recently introduced legislation that will allow amendments to the MHA so that people involuntary admitted under the act will be given the option to meet with and access support from an independent rights advisor. This service is expected to be available in 2023 and will be delivered by a team of independent rights advisors who will provide information and answer questions regarding rights and obligations under the ''MHA''. | ||
== H. Transfer of Patients or Extended Leave == | == H. Transfer of Patients or Extended Leave == | ||
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The fundamental principles of justice dictate that one has a right to appear at one’s own hearing. However, under section 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. This power is rarely exercised; when it is, it is often done in accordance with the patient’s wishes, as Review Hearings may cause a lot of distress. The patient or counsel can call witnesses to give evidence in support of the patient’s argument for discharge. | The fundamental principles of justice dictate that one has a right to appear at one’s own hearing. However, under section 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. This power is rarely exercised; when it is, it is often done in accordance with the patient’s wishes, as Review Hearings may cause a lot of distress. The patient or counsel can call witnesses to give evidence in support of the patient’s argument for discharge. | ||
Presumptively, patients also have the right to access all documents regarding their hearing prior to the hearing. For self-represented patients, under | Presumptively, patients also have the right to access all documents regarding their hearing prior to the hearing. For self-represented patients, under ''Rule 15'' of the ''Mental Health Review Board Rules of Practice and Procedure'', the facility must provide the patient adequate time and an appropriate location for document review prior to the hearing. Facilities also have an obligation to provide all disclosure in its possession as early as possible and no later than 24 hours prior to the hearing. | ||
Within 48 hours of the hearing, the Review Panel must decide (by majority vote) whether the patient’s involuntary 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, as well as to the patient or their 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 them. | Within 48 hours of the hearing, the Review Panel must decide (by majority vote) whether the patient’s involuntary 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, as well as to the patient or their 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 them. | ||
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The Review Panel must consider the past history of the patient, including their 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 by the director. Presumably, if the panel concludes that there is a significant risk that the patient will not comply with the director's treatment plan, it is open to them to conclude that sections 22(3)(a)(ii) and (c) continue to describe the patient. Again, the ''MHA'' amendments have made the criteria for detention broader and it seems likely that it is more difficult for patients to end their detention under the ''MHA''. | The Review Panel must consider the past history of the patient, including their 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 by the director. Presumably, if the panel concludes that there is a significant risk that the patient will not comply with the director's treatment plan, it is open to them to conclude that sections 22(3)(a)(ii) and (c) continue to describe the patient. Again, the ''MHA'' amendments have made the criteria for detention broader and it seems likely that it is more difficult for patients to end their detention under the ''MHA''. | ||
The BC Supreme Court recently held that the Review Panel board members have an obligation to determine whether or not the legal criteria to be an involuntary patient are met at the time of the hearing, not whether they were ever seriously impaired at some point in the past (see [https://www.bccourts.ca/jdb-txt/sc/21/16/2021BCSC1680.htm | The BC Supreme Court recently held that the Review Panel board members have an obligation to determine whether or not the legal criteria to be an involuntary patient are met at the time of the hearing, not whether they were ever seriously impaired at some point in the past (see [https://www.bccourts.ca/jdb-txt/sc/21/16/2021BCSC1680.htm ''Tizvar v British Columbia (Mental Health Review Board)''], 2021 BCSC 1680). This decision thus affects the interpretation of the serious impairment criteria whether a person is ‘seriously impaired’ by the mental disorder—by clarifying that the assessment of whether or not one is seriously impaired should occur at the time of the hearing. This judicial review decision was vital as prolonged detention under the ''MHA'' on the basis that one met the criteria for involuntary patient status instead of their current condition, could have disturbing results. | ||
