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.