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

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{{LSLAP Manual TOC|expanded = mentalhealth}}
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 for long-term admissions. The HCCFA or the ''Representation Agreement Act''The HCCFA and all of its their requirements for regarding consent to treatment do not apply to psychiatric treatment of involuntarily admitted patients.''' Involuntarily admitted patients therefore have few legislative rights in this area by statute, although but some parts of the MHA could potentially 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 P.S. ''PS v. Ontario'', 2014 ONCA 900, where the . 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, was were challenged and found to violate s.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, and . It was determined that the province cannot wield 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; however it . It is unclear as of now at this stage what effect this Ontario case may have in British Columbia.
The Mental Health Law Program (MHLP) at CLAS assists involuntarily admitted patients at review panel 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 as well. Access Pro Bono also provides telephone assistance for people who are facing involuntary detention , and want 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 hourson 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 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 if the person is to be detained for longer than the initial 48 hours. ''Mullins v Levy'' 2009 BCCA 6at paras 105-110, 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 Review Panel hearing according to certain prescribed periods that depend on after the length second certificate is completed, in accordance with section 25 of time the MHA. The involuntary detention can be renewed for a period of one month, three months, and subsequent six-month periods. The involuntarily detained patient has been detained or that his or her detention has been reneweda 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, 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, 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 of the MHA.
== A. Restraint and Seclusion While Detained Under the MHA ==
== 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 s section 12 of the HCCFA if they have not been involuntarily admitted.
=== 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. (see MHA, s 28(1)).
=== 2. Authority of a Provincial Court Judge ===
#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 may be open to has been the subject of a ''Charter'' challenge. in the past, but was dismissed for other reasons (See see ''Mullins v Levy'', (2009), 304 DLR. (4th) 64 (BCC.A.)).
== 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 his or her 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 being subjected to a ''Charter'' challenge, but 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-admission administration of treatment , constituting a breach of a statutory duty. Even though Decisions regarding what constitutes amounts to appropriate treatment is fall within the discretion of the institution . However, it is important to determine, 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 ==
=== 2. Through a Review Panel Hearing ===
An involuntary patient is entitled to a hearing before a review panelMental Health Review Board (Review Panel). Generally, a patient may have a is entitled to one hearing once during each period of involuntary detention. The application for a review panel Review Panel hearing may be made by the patient or by someone else acting on the patient’s behalf (MHA, s 25). The application is completed by filling out an Application “Application for Review form contained in Panel” (Form 7 under the MHA Mental Health Regulations (the “Regulations”.) , Section 6 of the Regulations MHR describes the conduct process of review panel hearingsa 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 Ministry of Health Chair appoints all three members for each Review Panel hearing from a the list of people previously accepted chosen by Order in Councilthe Minister.
It is policy that In order to maintain a quasi-judicial character, it is policy that those who sit on the panel 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 Review Panel power to compel witnesses and order disclosureof information.
The hospital’s position is usually presented by another medical person practitioner acting as the hospital’s representative, who is usually another member of the medical staffinvoluntarily detained person’s attending psychiatrist. The involuntary patient can be represented has a right to representation by counsel a lawyer or by an trained legal advocate , who can present the patient's patient’s position at the hearing.
The review panel may examine Review Panel members generally rely on the current hospital record of presenter ant the patient’s counsel to provide documents and evidence during the patientReview Panel hearing. However, and the Review Panel does have the power to order disclosure of records of any previous admissionsthat are relevant to making a decision. Procedure at review panel hearings is subject to the principles of fundamental justice under s 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 [[Introduction to Mental Health Law (14:II)#2. Resources | Section II.B.2: Resources]] for contact information).
The rules fundamental principles of natural justice dictate that one has a right to appear at one’s own hearing. However, under s section 25(2.6) of the MHA , the chair of the review panel 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 rarely, and often in accordance with the patients' patients’ wishes, as review hearings 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 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.
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 ====
Under s section 25(2) of the MHA, the review panel Review Panel is authorized to determine whether the detention of the patient should continue. The patient’s detention must continue if ss 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 him or herself or others; or detention is necessary to prevent substantial deterioration of the patient’s mental or physical person and he or she is unsuitable as a voluntary patient. A review panel Review Panel hearing must be conducted notwithstanding any defects in authority (Form 4 and Form 6) for the initial or renewed detention pursuant to s section 22 of the MHA. The Review Panel must consider the past history of the patient, including his or her 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.
The review panel must consider the past history of the patient, including his or her 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 ss 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 youthem. This is most suitable where there were procedural defects in the patient’s admission or defects in the involuntary detention certificates (Form 4 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 Form 6 under the process may be cost-prohibitiveMHR). If the Court finds that the committing detaining authority did not strictly adhere to the statutory requirements regarding committalinvoluntary detention, there exists may exist an action in false imprisonment and civil battery for unauthorized treatment and a possible award of damages (''Ketchum v Hislop'' (1984), 54 BCL.R. BCLR 327 (SSC)).C 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, as well as applications for judicial review of Mental Health Review Board hearing decisions. Please see the “Advocacy Resources” section on page 3 for more details.
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.
== J. Escapes From Involuntary Detention ==
 
 
{{REVIEWED LSLAP | date= July 29, 2019}}
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