5,483
edits
Difference between revisions of "Mental Health Act: Involuntarily Admitted Patients (14:VII)"
Jump to navigation
Jump to search
Mental Health Act: Involuntarily Admitted Patients (14:VII) (view source)
Revision as of 22:25, 20 December 2021
, 22:25, 20 December 2021no edit summary
Desy Wahyuni (talk | contribs) |
|||
| Line 4: | Line 4: | ||
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 will hear the appeal in the future. | 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 will hear the appeal in the future. | ||
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 | 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. | 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. | ||
| Line 20: | Line 20: | ||
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. | 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. | 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 == | == B. Short-Term and Emergency Admissions == | ||
| Line 32: | Line 32: | ||
=== 2. Authority of a Provincial Court Judge === | === 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 | 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 == | == C. Application for Long-Term Admissions == | ||
| Line 41: | Line 41: | ||
The certificates must contain: | The certificates must contain: | ||
#A physician’s statement that the individual was examined and the physician believes the person has a mental disorder; | #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 | #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 cannot be suitably admitted as a voluntary patient. | #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 | 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''). | ||
== E. Consent to Treatment == | == 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 or representative. | 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 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 issue is the subject of a ''Charter'' challenge. However a decision has yet to be made. 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://www.canlii.org/en/bc/bcca/doc/2020/2020bcca241/2020bcca241.html?autocompleteStr=council%20of%20canadians%20with%20disa&autocompletePos=2 ''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 will hear the appeal in the future. | 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. However a decision has yet to be made. 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://www.canlii.org/en/bc/bcca/doc/2020/2020bcca241/2020bcca241.html?autocompleteStr=council%20of%20canadians%20with%20disa&autocompletePos=2 ''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 will hear the appeal in the future. | ||
== F. Right to Treatment == | == F. Right to Treatment == | ||
| Line 61: | Line 61: | ||
== G. Right to be Advised of One’s Rights == | == G. Right to be Advised of One’s Rights == | ||
Pursuant to section 34 of the ''MHA'', 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. | 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. | ||
== 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 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 | 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. | 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 | 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 == | == I. Discharge of Involuntary Patients == | ||
| Line 75: | Line 75: | ||
=== 1. Through Normal Hospital Procedure === | === 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 | 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 === | === 2. Through a Review Panel Hearing === | ||
| Line 93: | Line 93: | ||
==== a) Patients’ Rights at Review Panel Hearings ==== | ==== 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 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. | 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. | ||
Within 48 hours | 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. | ||
| Line 104: | Line 104: | ||
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 | 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 | ||
*(i) requires treatment in or through a designated | *(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 | *(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 (s 22(3)(c)). | *(iii) cannot suitably be admitted as a voluntary patient (s 22(3)(c)). | ||
| Line 110: | Line 110: | ||
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''. | 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 director's treatment plan, it is open to them to conclude that sections 22(3)(a)(ii) and (c) continue to describe the patient | 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''. | ||
=== 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 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 a case involving a writ of ''habeas corpus''. If the Court finds that the detaining authority did not | 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)]). | ||
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. | 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. | ||