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

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 10, 2023.

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 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 British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27).

A similar challenge occurred in Ontario, in 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 recent case in British Columbia, AH v Fraser Health Authority, 2019 BCSC 227 clarified the procedures for detention under amendments to the AGA. It found that the Fraser Health Authority’s detention of A.H. of nearly a year was not an “emergency measure” as laid out in s 59(2)(e) of the AGA, and that such detentions should not last longer than is necessary to apply for a support and assistance order from the Provincial Court.

Section 22 of the MHA provides that a person may be admitted involuntarily and detained for up to 48 hours on the completion of one involuntary patient certificate (Form 4 – BC MHR). The person must first be examined by a doctor and the doctor must provide a medical certificate stating that they are 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 if the person is to be detained for longer than the initial 48 hours. The leading case in this area, Mullins v Levy 2009 BCCA 6 at paras 105-110 [Levy], 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 Panel hearing after the second certificate is completed, in accordance with section 25 of the MHA. The involuntary detention can be renewed for one-, three-, and subsequent six-month periods. The involuntarily detained patient has a right to apply for a Review Panel hearing within each renewal period.

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, they will be unable to follow the prescribed treatment plan and be involuntarily admitted again in the future.

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

The Mental Health Law Program (MHLP) at CLAS assists involuntarily admitted patients at Mental Health Review Board (Review Panel) hearings. Since 2017, the Attorney General has agreed to fund representation for all involuntarily detained patients who cannot afford counsel at their Review Panel hearings. If CLAS is unavailable to make these representations, they have a roster of contracted lawyers who may provide counsel. Access Pro Bono also provides telephone assistance for people who are facing involuntary detention and seeking information about their rights under the MHA.

A. Restraint and Seclusion While Detained Under the MHA

British Columbia’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 surrounding restraint and seclusion have yet to be thoroughly considered in BC, and there are few cases in Canada that address them. In Levy, 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 when doctors decided he required treatment for mania. Although the plaintiff argued that his Charter rights were violated, and he challenged the MHA and the HCCFA as unconstitutional, the Court did not rule on the Charter arguments. The plaintiff's claim was denied at the BCCA on factual grounds, and the Supreme Court declined to hear his appeal.

This leaves the patient’s rights in the hands of facility policymakers. 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 in the future.

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 or nurse practitioner (MHA, 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 (MHA, s 22(2)). As an alternative to the admissions criteria under the MHA, a patient may be given emergency treatment under section 12 of the HCCFA if they have not been involuntarily admitted. As of November 4, 2019, a person can also be admitted in the case of emergencies under section 24 of the HCCFA.

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 or nurse practitioner for examination, which includes admission to a psychiatric facility for examination by a physician there. (MHA, s 28(1)).

A person apprehended under s 28(1) of the MHA must be released if a physician or nurse practitioner does not complete a medical certificate in accordance with section 22(3) and 22(4) of the MHA.

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 exceeding 48 hours. To grant this warrant, the judge must be satisfied that admission under section 22 is not appropriate and that the applicant has reasonable grounds to believe that sections 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 (Forms 4.1 and 4.2 under the MHR), each completed by a physician or nurse practitioner in accordance with s 22(2), (3), and (5). The patient will be discharged one month after admittance unless the detention is renewed (Form 6 under the MHR) in accordance with s 24 of the MHA.

NOTE: Please note that Form 4 could be used instead of Forms 4.1 and 4.2. However, the old Form 4 will continue to be legally valid for physicians to complete until January 31st, 2024, after which point Form 4.1 and Form 4.2 must be used.

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

The certificates must contain:

1. A physician’s or nurse practitioner’s statement that

a) the individual was examined on the date or dates set out, and

b) the physician or nurse practitioner is of the opinion that the person to be admitted has a mental disorder;

2. An explanation of the reasons for this opinion; and

3. A separate statement that the physician or nurse practitioner believes the individual requires medical treatment in a provincial mental health facility

a) to prevent the person’s substantial mental or physical deterioration,

b) to protect the person, or to protect others, and

c) that the individual cannot be suitably admitted as a voluntary patient.

For admission to be valid, the physician or nurse practitioner who examined the person must sign the medical certificate (Form 4.1) and must have examined the patient not more than 14 days prior to the date of admission. For a second medical certificate (Form 4.2) to be valid, it must be completed within 48 hours of the patient’s admission. The MHA does not provide guidance about the type of examination required, nor does it require that the patient be informed of the purpose of the examination or that the examination is even being conducted. This practice has been the subject of a Charter challenge in the past, but the case was dismissed for other reasons (see Levy).

The MHA is currently under revision, which may affect the list of requirements with respect to medical certificates needed for involuntary admissions. Please consult the Table of Legislative Changes to see updates on the MHA.

E. Consent to Treatment

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 MacLaren v British Columbia (Attorney General), 2018 BCSC 1753 and British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27.

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, what constitutes “appropriate treatment“ is not clearly set out by the MHA, leaving the parameters uncertain. 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-administration of treatment, constituting a breach of a statutory duty. Decisions regarding what amounts to appropriate treatment fall within the discretion of the institution. However, it is important to note that the common law of medical malpractice applies to treatment administered in a mental health facility, thus imposing certain limitations on that discretionary power.

G. Right to be Advised of One’s 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 MHA.

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 when 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 periods are specified). Under s 38, a patient may also be transferred to an approved home under specific conditions.

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 reside at the mental health facility (MHA 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 they are on leave or were transferred from, or they may be sent to another authorized facility (MHA s 39(2)). There is no statutory obligation on the facility to inform the patient that the leave is conditional or has expired, raising the possibility that a patient may unknowingly violate the terms of their leave.

Under section 25(1.1), if a patient has been on leave or in an approved home for more than 12 consecutive months without a request for a review panel hearing, their treatment record must be reviewed by the Mental Health Review Board. If the Mental Health Review Board believes there is a reasonable likelihood that the patient could be discharged, a Review Panel must be conducted. In practice, however, the Review Panel ordinarily contacts the patient to ask if they would like 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 section 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”. A doctor must renew that authority for further periods of one month, then three months, and then six months.

2. Through a Review Panel Hearing

An involuntary patient is entitled to a Review Panel hearing before a Mental Health Review Board (MHRB). Generally, a patient is entitled to one hearing during each period of involuntary detention. The application for a Review Panel hearing may be made by the patient or by someone acting on the patient’s behalf (MHA, s 25). The application is completed by filling out an “Application for Review Panel Hearing” (Form 7 under the Mental Health Regulations), Section 6 of the MHR sets out the requirements for scheduling a Review Panel hearing.

A Review Panel hearing takes place before a MHRB panel of three people, which according to section 24.1(3) of the MHA, must include

a medical practitioner or a person who has been 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.

Under the MHA, the Minister appoints the Chair and all the legal, medical and community members authorized to sit as MHRB members. The Chair serves full-time and the members serve part-time. The Chair appoints three members for each Review Panel hearing from the list of people previously chosen by the Minister.

To maintain a quasi-judicial character, it is policy that those who sit on the MHRB 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 MHRB power to compel witnesses and order disclosure of information.

The hospital’s position is usually presented by another medical practitioner acting as the hospital’s representative; this case presenter is ordinarily the involuntarily detained person’s attending psychiatrist. The involuntary patient has a right to representation by a lawyer or trained legal advocate who can present the patient’s position at the hearing.

The MHRB members generally rely on the hospital presenter and the patient’s counsel to provide documents and evidence during the Review Panel hearing. However, the MHRB may order disclosure of records that are relevant to making a decision. Under the MHA, the MHRB has the authority to order the production of documents, while the parties appearing before the MHRB have document disclosure obligations under the Rules of Practice and Procedure.

Procedure at review panel hearings is subject to the principles of fundamental justice under section 7 of the Charter and to due process under the common law, as well as the provisions of the Administrative Tribunals Act listed under s 24.2 of the MHA. Patients also must know the evidence that will be presented at the Review Panel hearing with sufficient time in advance of their hearing in order to have an opportunity to prepare a response and challenge that evidence.

The Mental Health Review Board (MHRB) has also developed MHRB Rules of Practice and Procedures, and Practice Directions, which are available on the MHRB website.

a) Patients’ Rights at Review Panel Hearings

Legal Respresentation

If a patient is represented, the MHRB and facility will communicate with the patient representative on all issues regarding the hearing. This representative need not be a lawyer. Representation at a panel is provided free of charge by CLAS' Mental Health Law Program within the lower mainland or on an ad hoc basis outside of the lower mainland (see Section II.B.2: Resources for contact information).

Patients may be represented by advocates from the Mental Health Law Program (MHLP). Patients may also choose to hire a lawyer or ask a family member, friend, or other person to represent them.

Review Panel Hearing Attendance

Most review panel hearings occur by video, via an online platform such as Zoom. Accommodations for disabilities or other reasons that would make a video hearing inappropriate can be sought by application to the Chair.

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. A patient representative who wants to call a witness must make arrangements for their attendance. A witness may attend in person or by electronic means.

Document Disclosure

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.

Access the Mental Health Review Board Rules of Practice and Procedure at https://www.bcmhrb.ca/app/uploads/sites/431/2020/01/BC-MHRB-Rules-of-Practice-and-Procedure-effective-Jan-31-2020.pdf

Facilities have an obligation to disclose copies of all relevant records in their possession or control as early as possible and no later than 24 hours before the start of the hearing, or in exceptional circumstances, no later than 30 minutes prior to the start of the hearing. Facilities’ disclosure obligations are triggered after receiving a hearing notice from the MHRB. If a facility has decided to limit disclosure, it must notify and explain to the patient or their representative the exceptional circumstances that justify limits on disclosure.

Documents obtained through the disclosure process are confidential and must only be used for the purposes of the hearing, except with the consent of the patient, or by order of the MHRB. More information about disclosure can be found at https://www.bcmhrb.ca/app/uploads/sites/431/2020/01/Practice-Direction-Guidelines-for-Disclosure-effective-Jan-31-2020.pdf.

A patient representative who wants to refer to a document at a hearing must provide a copy of that document to the facility as early as possible and no later than 24 hours before the start of the hearing, or in exceptional circumstances, no later than 30 minutes prior to the start of the hearing.

Case Note

A facility must provide a written summary of the evidence it intends to present at a hearing (“case note”) to the patient or their representative no later than 24 hours before the start of the hearing, or in exceptional circumstances, no later than 30 minutes prior to the start of the hearing. When all or part of a hearing proceeds by electronic means, the facility must make every effort to disclose a copy of the case note to the MHRB and any participant no later than 24 hours prior to the scheduled hearing.

Documents to Be Disclosed prior to Review Panel Hearings

Any document referred to or relied on in a case note or by a case presenter is considered a Relevant Document and must be disclosed 24 hours in advance of the hearing. A non-exhaustive list of Relevant Documents may include:

Forms (Forms 4, 4.1, 4.2 and 6)
Other Forms (Forms 11, 12 and 21)
Medical reports, including attending physician reports
Past admission/discharge notes and summaries
Psychiatric Progress reports
Mental Health Team assessments
Attending physician notes
Therapy notes
Any document that will be referred to or relied on in the case note and presentation

Review Panel Hearing Postponement

A patient or a patient representative may apply to postpone a hearing. Unless the Board otherwise directs, an application to postpone made within two business days of a scheduled hearing must be in writing and state:

(a) why the request is reasonable; and

(b) why granting the request will not unduly prejudice the other participants.

At the request of a patient or patient representative, the Board will reschedule a postponed hearing as soon as reasonably practicable thereafter, but not later than:

(a) 14 days in a one-month certification period; and

(b) 28 days in a three-month or six-month certification period.

Review Panel Decision

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.

b) What the Review Panel Must Consider

Involuntary Patient Status

Under section 25(2) of the MHA, the Review Panel is authorized to determine whether the detention of the patient should continue. The patient’s detention must continue if sections 22(3)(a)(ii) and (c) continue to describe the patient. Section 22(3)(a)(ii) requires that the person or patient is a person with a mental disorder.

The MHA defines a person with a mental disorder as a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability to either react appropriately to the person’s environment or to associate with others. Section 22(3)(c) adds three more criteria that are required for involuntary patient status. That is, the patient is a person with a mental disorder who

(i) requires treatment in or through a designated facility,

(ii) requires care, supervision and control in or through a designated facility to prevent the person's or patient's substantial mental or physical deterioration or for the protection of the person or patient or the protection of others, and

(iii) cannot suitably be admitted as a voluntary patient.

A Review Panel hearing must be conducted notwithstanding any defects in authority (Forms 4.1 and 4.2 as well as Form 6) for the initial or renewed detention pursuant to section 22 of the MHA.

Compliance with Treatment Plans

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.

Serious Impairment

Please note that the following information is subject to change due to the ongoing litigation:

The BC Supreme Court previously 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 AT 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.

Under a more recent decision in AT v British Columbia (Mental Health Review Board), 2022 BCSC 1905, the status of “person with a mental disorder” under section 1 of the MHA would be granted if a patient demonstrates “seriously impairing, active symptoms of a mental disorder” (para 154). This decision affects patients who might be asymptomatic during their review panel hearings but have been experiencing active, seriously impairing symptoms in the past. In addition, an involuntary patient may meet the definition of “person with a mental disorder” when there is a significant risk that they will fail to follow their treatment plan if discharged. The possibility of failing the treatment plan may be regarded as “seriously impairing” under section 1 of the MHA.

3. Through Court Proceedings

A person may apply to the Supreme Court for a writ of habeas corpus, which is a writ requiring a detained person to be brought before a court to evaluate the lawfulness of the involuntary detention based on the documents used to support the detention. This is most suitable where there were procedural defects in the patient’s admission or defects in the involuntary detention certificates (Forms 4.1 and 4.2 as well as Form 6 under the MHR). AH v Fraser Health Authority, 2019 BCSC 227, discussed above, is an example of a case involving a writ of habeas corpus. If the Court finds that the detaining authority did not adhere to the statutory requirements for involuntary detention, this may constitute grounds for an action in false imprisonment and civil battery for unauthorized treatment, and the patient may be entitled to an award of damages (Ketchum v Hislop (1984), 54 BCLR 327 (SC)).

Under section 33 of the MHA, a request can be made to the Supreme Court for an order prohibiting admission or directing the discharge of an individual. This request may be made by a person or patient whose application for admission to a mental health facility is made under section 20(1)(a)(ii) or section 22, by a near relative of a person or patient, or by anyone who believes that there is not sufficient reason for the admission or detention of an individual.

Legal Aid BC and Access Pro Bono may be available for habeas corpus applications, section 33 applications under the MHA and applications for judicial review of Mental Health Review Board hearing decisions. Please see the “Advocacy Resources” section for more details.

J. Escapes From Involuntary Detention

1. Apprehension Without a Warrant

A patient, detained involuntarily in a mental health facility who leaves the facility without authorization is, within 48 hours of escape, liable to apprehension, notwithstanding that there has been no warrant issued (MHA, s 41(6)).

2. Warrant Constituting Authority for Apprehension

Where a person involuntarily detained has been absent from a mental health facility without authorization, the director of the facility may within 60 days issue a warrant for apprehension; this warrant serves as authority for the apprehension and conveyance of the person back to the facility (MHA s 41(1)).

3. Patient Considered Discharged After 60 Days

A patient is deemed to have been discharged if they have been absent from the facility for over 60 days without the issuance of a warrant (MHA s 41(3)). However, if the patient is “charged with an offence or liable to imprisonment or considered by the director to be dangerous to [themselves] or others,” the person is not deemed discharged and a warrant may still be issued.

4. Aiding Escapees

Under section 17 of the MHA, any person who helps an individual leave or attempt to leave a mental health facility without proper authority, or who does or omits to do any act that assists a person in so leaving or attempting to leave, or who incites or counsels a patient to leave without proper authority, commits an offence under the Offence Act, RSBC 1996, c 338.