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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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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. | 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 | 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. | ||
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. | 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 in the MHA. | ||
== A. Restraint and Seclusion While Detained Under the MHA == | == A. Restraint and Seclusion While Detained Under the MHA == | ||
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== H. Transfer of Patients or Extended Leave == | == 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 | 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 he or she is on leave or was 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 his or her leave. | 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 he or she is on leave or was 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 his or her leave. | ||
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An involuntary patient is entitled to a hearing before a review panel. Generally, a patient may have a hearing once during each period of detention. The application for a review panel hearing may be made by the patient or by someone else on the patient’s behalf (s 25). The application is completed by filling out an Application for Review form contained in the MHA Regulations (the “Regulations”.) Section 6 of the Regulations describes the conduct of review panel hearings. Students are encouraged to contact the Mental Health Law Program at CLAS for advice and a possible referral. | An involuntary patient is entitled to a hearing before a review panel. Generally, a patient may have a hearing once during each period of detention. The application for a review panel hearing may be made by the patient or by someone else on the patient’s behalf (s 25). The application is completed by filling out an Application for Review form contained in the MHA Regulations (the “Regulations”.) Section 6 of the Regulations describes the conduct of review panel hearings. Students are encouraged to contact the Mental Health Law Program at CLAS for advice and a possible referral. | ||
A 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. | A 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. The Ministry of Health appoints all three members from a list of people previously accepted by Order in Council. | ||
The Ministry of Health appoints all three members from a list of people previously accepted by Order in Council. | |||
It is policy that to maintain a quasi-judicial character, those who sit on the 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. | It is policy that to maintain a quasi-judicial character, those who sit on the 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. | ||
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The review panel may examine the current hospital record of the patient, and the records of any previous admissions. Procedure at review panel hearings is subject to the principles of fundamental justice under s 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. | The review panel may examine the current hospital record of the patient, and the records of any previous admissions. Procedure at review panel hearings is subject to the principles of fundamental justice under s 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 ==== | ==== a) Patients’ Rights at Review Panel Hearings ==== | ||
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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 [[Introduction to Mental Health Law (14:II)#2. Resources | Section II.B.2: Resources]] for contact information). | 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 [[Introduction to Mental Health Law (14:II)#2. Resources | Section II.B.2: Resources]] for contact information). | ||
The rules of natural justice dictate that one has a right to appear at one’s own hearing. However, under s 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. 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 or not the patient’s 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 his or her 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 him or her. | The rules of natural justice dictate that one has a right to appear at one’s own hearing. However, under s 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 used rarely, 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 or not the patient’s 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 his or her 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 him or her. | |||
==== b) What the Review Panel Must Consider ==== | ==== b) What the Review Panel Must Consider ==== | ||
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=== 3. Through Court Proceedings === | === 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 detention. This is most suitable where there were procedural defects in the patient’s admission and may be applied for as often as desired. However, note that Legal Aid is unavailable to a patient seeking to pursue this remedy, and the process may be cost-prohibitive. If the Court finds that the committing authority did not strictly adhere to the statutory requirements regarding committal, there exists an action in false imprisonment and a possible award of damages (''Ketchum v Hislop'' (1984), 54 BCL.R. 327 (S.C.)). | 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 detention based on the documents used to detain you. This is most suitable where there were procedural defects in the patient’s admission and may be applied for as often as desired. However, note that Legal Aid is unavailable to a patient seeking to pursue this remedy, and the process may be cost-prohibitive. If the Court finds that the committing authority did not strictly adhere to the statutory requirements regarding committal, there exists an action in false imprisonment and a possible award of damages (''Ketchum v Hislop'' (1984), 54 BCL.R. 327 (S.C.)). | ||
Under s 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 s 20(1)(a)(ii) or s 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. | Under s 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 s 20(1)(a)(ii) or s 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. | ||