Mental Health Act and Youth (14:VIII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 11, 2023.

The provisions for voluntary and involuntary detention under the MHA apply identically to adults and children ages 16 or older. Children 16 and older may request admission to a mental health facility and, if a physician finds that they have a mental disorder, they can be voluntarily admitted; they may also be discharged at their own request (MHA s 20(6)(a)).

A child over the age of 16 may be involuntarily admitted to a mental health facility when they meet the criteria set out under section 22 of the MHA. Please see Section VII for the requirements for admission as an involuntary patient.

There are special provisions under the MHA for voluntary and involuntary admission of children under the age of 16 to mental health facilities.

For plain language descriptions of voluntary and involuntary detention for youth, and for further information regarding the impact of the Mental Health Act on youth, please review the 2021 report issued by the Representative for Children and Youth, entitled “Detained: Rights of children and youth under the Mental Health Act”.

A. Involuntary Admission of Youth

Children under the age of 16 can be admitted to a mental health facility via the same provisions that permit detention of adults. Children under 16 who are involuntarily detained have the same right to receive notice (MHA s 34.1). The child must be informed both orally and in writing of the name and location of the facility they have been admitted to, their rights under section 10 of the Charter, and the provisions of sections 21, 25, 31, and 33 of the MHA.

Review Panel Hearings for Youth

Section 21 of the MHA advises the child that if they request to leave the facility, they are entitled to a hearing by review panel within the statutorily mandated time frames to determine whether their detention should continue. The process of a hearing by review panel is described under section 25 of the MHA. Section 31 advises the child that treatment authorized by the director is deemed to be given with the consent of the patient, that they may request a second medical opinion on the appropriateness of their treatment once in each detention period, and that the director must consider whether the second opinion merits changes to the authorized treatment. Section 33 notifies the child that they can apply to the court for a discharge and explains how this action would proceed.

The above-mentioned report released by the Representative for Children and Youth highlights that children detained under the MHA feel unheard and uninformed in spite of the obligation to inform children of their rights and in spite of the procedures for reviewing their detention. An investigation by CLAS was cited in support of the view that health care providers have inadequate education, training, and time to advise children of their rights (Community Legal Assistance Society, Operating in Darkness: BC’s Mental Health Act Detention System (Vancouver, 2017), 67), and that this has significant consequences for children involuntarily detained under the Act. Children face significant barriers to exercising their rights, including barriers to accessing legal representation.

To address these concerns, the MHRB has employed a Navigator commencing May 2023 who is working to assess the needs of children and youth applicants. The Navigator is the point person for all communications and coordination of children and youth applicant hearings from the time of filing of the application for hearing to the conclusion of the hearing. The Navigator has ongoing communication with the applicant and participants regarding the process steps, the Board’s Rules of Practice and Procedure, the incorporation of any children and youth protocols and practices, and the implementation of any reasonable accommodations including cultural, spiritual, emotional, language-related, and technical.

In addition, the facility and the patient or their representative are to attend a pre-hearing conference with the Navigator, as necessary, for hearings involving children and youth. The pre-hearing conference may be by telephone or other method set by the MHRB and at a time set by the MHRB. The purpose of the pre-hearing conference is to address any reasonable accommodation requests by the applicant, outstanding disclosure or witness issues, or any other issues raised by the parties to ensure that the applicant is provided trauma-informed, procedurally fair, and timely access to justice.

The MHRB has special obligations in relation to children under the United Nations Convention on the Rights of the Child. To honour these obligations, the MHRB has issued Practice Direction – Children in Hearings. This Practice Direction describes the procedures that must be followed by all participants to ensure a child-centred approach to review panel hearings when applications are made by children who under the age of 19 years.

Guiding Principles of Review Panel Hearings for Youth

• Best Interests of Child:

the hearing process is oriented to the needs and best interests of the child. This approach must account for the child’s individual needs, abilities, age, maturity, language, and culture. In particular, it must account for the rights of Indigenous children under the United Nations Declaration on the Rights of Indigenous Peoples.

• Minimize conflict:

the hearing process is designed to minimize and reduce the duration of conflict the child experiences and any negative impact on the child.

• Preserve Relationships:

participants must conduct themselves with honesty and integrity, and must not act in a manner that would undermine the MHRB’s processes. Participants must treat all persons in the hearing with courtesy and respect. The hearing process, in and of itself, does not increase family conflict or harm the child’s relationship with their healthcare providers or caregivers.

• Voice, fairness, and safety:

the child has the right to participate in a hearing process that is respectful, fair, and safe. A child capable of forming their own views has the right to express those views and to have those views be given due weight in accordance with their age and maturity. The child must have the opportunity to have their views and preferences heard, either directly or through a representative.

• Accessible, proportionate, and timely:

the hearing process is understandable and explained to the child in a developmentally appropriate manner. There should be proportionality between the issues to be resolved and the processes used to resolve them. Decisions affecting a child are to be made in a timely way that is appropriate to the child’s sense of time and in accordance with the Board’s Rules of Practice and Procedure.

Direction for Review Panel Hearings for Youth

• Notice:

participants must notify the MHRB immediately when an application for a review panel hearing is made by a child. Participants include the child’s representative, case presenters, and facility representatives.

• Guiding Principles:

participants must apply these Guiding Principles to every hearing involving a child. All participants must ensure the child has the opportunity to be heard and consulted, either directly or through a representative, in all matters of process and substance affecting the child in light of such factors as their age, maturity, culture, language, or any individual need.

• Flexible Process:

participants must expect a flexible process for hearings involving a child. The Board and panel will apply a flexible process to ensure that the Guiding Principles infuse every review panel hearing involving a child. For example, this may result in shorter hearings or the participation of guardians in appropriate cases.

• Process to request that Guardians attend the hearing:

if either party wishes a guardian to be present for all or part of the hearing, the guardian must be available at the beginning of the hearing. The party advocating for the guardian to attend, must, at the beginning of the hearing, provide the reasons to the panel members that the attendance of the guardian is helpful and in the best interests of the child. The panel will then rule on whether the guardian is to be present or not, and will also rule on whether the guardian will be attending in the role of a witness (attendance is limited to providing evidence) or is attending as an observer (cannot give evidence).

B. Voluntary Admission of Youth

Children under the age of 16 can be admitted to a mental health facility under the same provisions that permit voluntary detention of adults. However, there is another way for youth to be “voluntarily” admitted to a health facility. At the request of a parent or guardian, a child can be admitted to a mental health facility on a voluntary basis if the examining physician determines that the child has a mental disorder (MHA s. 20). This is considered a voluntary detention because parents have the legal right to make decisions on behalf of their children; however, this does not mean that the detention is considered voluntary by the child. Because the parents consented to the detention on behalf of the child, they are also able to remove the child at any time. If a parent or guardian requests that the child be discharged, the request must be followed unless the director is satisfied that the child meets the conditions for involuntarily admitting a patient over the age of 16.

The “deemed consent to treatment” provision under section 31 of the MHA does not apply to children who are detained at the request of their parents. Consent must come from the child’s parents, unless the child is considered a mature minor with the capacity to engage in their own decision-making. A mature minor is a child under the age of 16 who has been found to have legal capacity and the right to decision-making autonomy commensurate with their intelligence and maturity (A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30). Children who are mature minors have the authority to consent to their own treatments. Their right to consent cannot be overridden by the parent or guardian, medical team, or the director without a court order. The Infants Act allows doctors to attain consent from mature minors who understand the nature and consequences of a given treatment as well as its potential risks.

In a way, this provides children with more protection than those over the age of 16. Rather than being subjected to the “deemed consent” treatments required by the director, which prevent adults from having a decision-maker act on their behalf, parents are able to consent to treatments on behalf of the child. Alternatively, children who are considered mature minors may consent to their own treatments.

However, this pathway to detention in a mental health facility raises the concern that the detention is not truly voluntary, even if it is voluntary in name due to consent by the parents, because the patient themselves has not consented or voluntarily admitted themselves.

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.