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

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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 psychiatric treatment of involuntarily admitted patients. Involuntarily admitted patients therefore have few legislative rights, but some parts 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).

Such a 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 providing for involuntary committal as they apply to long-term detainees were challenged and found to violate section 7 of the Charter. The judgement stated that the patient must be provided meaningful procedural avenues to seek the accommodation and treatment they need to be rehabilitated, while being involuntarily detained. 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.

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 who wish to know their rights under the MHA.

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. Mullins v Levy 2009 BCCA 6 at paras 105-110 [Levy], 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 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 the facility but will still be considered to be involuntarily committed, and will remain subject to the provisions of 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 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 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 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.

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 (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 alternate 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 s 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 for examination, which includes admission to a psychiatric facility for examination by a physician there. (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 has been the subject of a Charter challenge in the past but was dismissed for other reasons (see Levy).

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 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. Currently, this is being subjected to a Charter challenge. However a decision has yet to be made. Please refer to MacLaren v British Columbia (Attorney General), 2018 BCSC 1753.

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-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 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.

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 they are on leave or were 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 their leave.

Under s 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, 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”. A doctor must renew that authority for further periods of first one month, then three months, and then six months.

2. Through a Review Panel Hearing

An involuntary patient is entitled to a hearing before a Mental Health Review Board (Review Panel). 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 describes the process of a Review Panel hearing.

A Review Panel 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. Under the MHA, the Minister appoints the Chair and all the legal, medical and community members authorized to sit as Review Panel members. The Chair serves fulltime 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 Review 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 of information.

The hospital’s position is usually presented by another medical practitioner acting as the hospital’s representative, who is usually 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 Review Panel members generally rely on the hospital presenter and the patient’s counsel to provide documents and evidence during the Review Panel hearing. However, the Review Panel does have the power to 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 due process under the common law, as well as the provisions of the Administrative Tribunals Act listed under s 24.2 of the MHA.

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 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 used, and often in accordance with the patients’ wishes, as Review Hearings may cause a lot of stress. 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 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 and 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

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. 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 themselves or others; or detention is necessary to prevent substantial deterioration of the patient’s mental or physical person and they are unsuitable as a voluntary patient. 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 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 treatment plan, it is open to them to conclude that sections 22(3)(a)(ii) and (c) continue to describe the patient (i.e. the patient may get worse if not compelled to continue treatment). Again, the MHA amendments have made the criteria for detention broader and it would seem likely that it will be more difficult for patients to end their detention under 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 that will evaluate the lawfulness of the involuntary detention based on the documents used to detain them. 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). AH v Fraser Health Authority, 2019 BCSC 227, discussed above, is an example a case regarding a writ of habeas corpus. If the Court finds that the detaining authority did not strictly adhere to the statutory requirements regarding involuntary detention, there may exist an action in false imprisonment and civil battery for unauthorized treatment and a possible 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 22, a near relative of a person or patient or anyone who believes that there is not sufficient reason for the admission or detention of an individual.

Legal Aid 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 on page 3 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 (s 41).

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, which serves as authority for apprehension and conveyance back to the facility (s 41(1)).

3. Patient Considered Discharged After 60 Days

A patient is deemed to have been discharged if they have been absent for over 60 days without a warrant being issued (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 the MHA, s 17 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.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 14, 2020.
© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.

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