Mental Health Act: Involuntarily Admitted Patients (14:VII): Difference between revisions

{{REVIEWED LSLAP | date= July 22, 2022}}

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 recent case in British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc227/2019bcsc227.html?resultIndex=1 ''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, [https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca6/2009bcca6.html?resultIndex=1 ''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.

A person may be detained in a psychiatric facility upon the receipt of one medical certificate signed by a physician (''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''.

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

A person can be admitted to a facility by the director of a provincial health facility on receipt of two medical certificates (Form 4 under the ''MHR''), 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 (Form 6 under the ''MHR'') in  accordance with s 24 of the MHA.

#A physician’s statement that the individual was examined and that the physician believes the person has a mental disorder;  

#An explanation of the reasons for this opinion; and  

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

For admission to be valid, the physician who examined the person must sign the medical certificate (Form 4) and must have examined the patient not more  than 14 days prior to the date of admission. For a second medical certificate (Form 4) 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'').

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.

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” (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 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. 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.

In order 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 practitioner 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. 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''.

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 https://bcmhrb.ca].  

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 CLAS' Mental Health Law Program within the lower mainland or on an ''ad hoc'' basis outside of the lower mainland (see [[Introduction to Mental Health Law (14:II)#2. Resources | Section II.B.2: Resources]] for contact information).  

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 ''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.

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   

A Review Panel hearing must be conducted notwithstanding any defects in authority (Form 4 and Form 6) for the initial or renewed detention pursuant to section 22 of 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 ''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.

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 (Form 4 and Form 6 under the ''MHR''). [https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc227/2019bcsc227.html?resultIndex=1 ''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 ([https://www.canlii.org/en/bc/bcsc/doc/1984/1984canlii886/1984canlii886.html?resultIndex=1 ''Ketchum v Hislop'' (1984), 54 BCLR 327 (SC)]).

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 beginning on page 3 for more details.

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).