Category: Mental Health Law

Round Table Law recommends amendments to Mental Health Act

Round Table Law recommends amendments to Mental Health Act

Today I sent an email to the Standing Committee on Families and Communities with regard to their review of the 2007 amendments to the Mental Health Act of Alberta.

I have to thank Mr. Tom Shand, Executive Director of the Alberta Alliance on Mental Illness & Mental Health, for supporting my making these submissions and for asking the Committee to consider them in the AAMIMH submissions.

I also have to thank Mr. Sean Smith, who like me acts as duty counsel before Mental Health Review Panels in the Edmonton region, and who took the time to seriously consider my submissions, improving them in a number of places, including by adding several issues which had escaped by attention, and who joined me in their submission.

If you would like to read my submissions, they are available here.

Some of the highlights would include the suggestion that the Mental Health Act be amended to make community treatment orders more widely available, and to allow judicial review of the decision of Mental  Health Review Panels in order to ensure procedural fairness and consistency in  how the law is applied across the province.

Most people who make submissions with regard to mental health are looking for ways to improve the availability and quality of treatment.  My submissions focus on whether we are respecting the constitutional rights of persons with mental illness.  Unfortunately, in many cases, and in many ways, the current legislation does less to protect the rights of persons with mental illness than it does to protect the rights of the criminally accused.

In both cases, you are at risk of being  held against your will by the government.  In only one of those cases can it happen without ever appearing before a court of law, and can it involve the administration of medication against your will.

Case Comment: JH v Alberta Health Services, 2015 ABQB 316

Case Comment: JH v Alberta Health Services, 2015 ABQB 316

Summary of the Case

In JH v AHS, JH appealed the decision of Alberta Health Services to admit him as a formal patient under the Mental Health Act, RSA 2000 c M-13 (“MHA”). It is implied in the decision, and by the fact that he had been declared incompetent to make treatment decisions, that JH was refusing treatment for a mental illness. He also seems to have been suffering from substance abuse issues, liver problems, and some pain issues.  JH also had mild memory problems, and perhaps some cognitive impairment. It is implied by the fact that JH’s review of his certificates had been automatically triggered that he had been a formal patient for at least 6 months.

The live issues were whether AHS could demonstrate that JH met the three criteria set out in section 2 of the MHA, among other places, for admission to hospital: whether he was suffering a mental disorder, whether there was a risk, and whether he was unsuitable for admission other than as a formal patient.

Admission certificate
2 When a physician examines a person and is of the opinion that the person is
(a) suffering from mental disorder,
(b) likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment, and
(c) unsuitable for admission to a facility other than as a formal patient,
the physician may, not later than 24 hours after the examination, issue an admission certificate in the prescribed form with respect to the person.

These are often referred to as the three admission criteria. The definition of “mental disorder” is found in section 1 of the MHA, and states:

(g) “mental disorder” means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs
(i) judgment,
(ii) behaviour,
(iii) capacity to recognize reality, or
(iv) ability to meet the ordinary demands of life;

The Court found that none of the three criteria were met.  With regard to the first criterion, the Court held that JH’s impairments were not substantial, and that they did not grossly impair him, and so did not qualify as a mental disorder under the Act.

With regard to the second criterion of risk, AHS argued that the patient was at risk of decompensation, or relapse, but that it might take weeks or months after discharge for that to manifest into serious problems.  The Court held that this was inadequate to satisfy the second criterion, stating at paragraph 28

“this level of risk tolerance should be acceptable under the Act and does not fit the second part of the criteria to detain a person involuntarily. The criteria “likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment” no longer has to be “imminent harm” in my view, considering the legislative changes, but it does need to be “substantial” and “serious”. With supports that will be put into place, and frankly, even without them, I do not believe that the AHS has shown that J.H. will suffer from these consequences necessarily if he is released. Quite to the contrary. In other words, these risks are not to the level that J.H.’s right to self-determination and freedom should be curtailed involuntarily.”

With regard to the third criterion, the Court held that it had evidence that he was willing to stay in hospital and receive treatment for his medical conditions for a short time in order to arrange accommodations for him outside of the hospital. The implication is that he remained unwilling to obtain treatment for his psychiatric condition.  Nevertheless, the Court found his evidence forthright, and found that he was suitable for admission voluntarily, even if that would only be for a short while.

The Justice also reviewed the decision of the Mental Health Review Panel in JH’s case, and stated in obiter that as the decision did not indicate the evidence on which the MHRP had found the criteria to be met, it was “wholly inadequate” and “wholly unhelpful.”

Analysis

Proportionality in the Second Criterion

The Court’s findings on the first and third criteria are essentially findings of fact.  The Court’s findings on the second criteria, however, do give guidance to Mental Health Review Panels in Alberta that it is not sufficient that a “likely” risk of the sorts listed exist.  Here the Justice is giving voice to the constitutional and common sense principle of proportionality. It is not enough that a risk under the second criterion exists, or that the risk is likely.  The risk must also rise to a level sufficient to justify the infringement on the patient’s right to self-determination and freedom. It is worth noting that it appears that JH had also been declared incompetent to make his own treatment decisions, and as such he was both being held and potentially medicated against his will.

Given that this is a section of legislation that is applied by psychiatrists, and adjudicated at first instance by a panel with a majority of lay and medical professional members which is prohibited from making findings of constitutionality, it is unfortunate that the principle of proportionality is not clearly stated in the admission criteria of the MHA itself, in order to bring its existence to the attention of the administrative entities who deal with this legislation on a day-to-day basis.

It is my hope that the Standing Committee on Families and Communities, which is currently reviewing the MHA, will make amendments to the Act to address that issue.

Adequacy of Reasons and the Need for Judicial Review

The Mental Health Review Panels are divided by region in the Province of Alberta, and the region in which this decision was appealed is not one in which I have any experience.  However, the Justice’s description of the contents of the decisions of the MHRP is consistent with my experience in other regions of the province.  While the written decisions reliably recount the applicable legislation and at least the hospital’s evidence, the evidence of the applicant is most often omitted. Among the things which almost never appear in these decisions are a recounting of the arguments put forward by the parties as to how and why the evidence does or does not meet the legal tests, whether the Panel agreed or disagreed with those arguments and why, the evidence on which those tests were met or failed, and why one party’s evidence was preferred to another’s.

Practitioners of administrative law will recognize these as considerable failures of the tribunal’s obligations for adequate reasons, and considerations on, if not independent grounds for, judicial review. However, section 43 of the MHA states that appeals from decisions of the MHRP are hearings on the merits.  Procedural fairness may not be possible to address via judicial review, because the parties before the MHRP have an adequate alternate remedy of a de novo hearing at Court.

In my opinion, the absence of an explicit availability of judicial review on errors of law and mixed law and fact has left the Alberta MHRP in a legal hinterland in which panels cannot obtain judicial guidance on their procedural obligations or the proper interpretation of their home statute, outside of the rare cases in which a patient in a psychiatric institution has the wherewithal to obtain expert testimony in their favour for the purpose of mounting a trial on the issues at Queen’s Bench.  And those few cases will only ever address the substantive legal questions.

This is too high a standard to impose on people who are presumably suffering from mental illness, and frequently suffering from substance abuse, are frequently impecunious, and more often than not will be discharged from hospital far in advance of their matters ever appearing at Court due to the overburdened court system.

It is my hope that the Standing Committee on Families and Communities will also give serious consideration to amending the MHA to make the availability of judicial review explicit in the MHA, and allow more than obiter instruction from the bench in how these decisions ought to be made. The stakes are extremely high.  Only through the MHA are Albertans at risk of both indefinite detention and medication against their will without ever having appeared before a court of law.  The procedural fairness of the process which adjudicates the use of that power must be of the highest priority, and must be under judicial scrutiny.

Mental Health Law is getting better in ON

Mental Health Law is getting better in ON

Late in 2014, the Ontario Court of Appeal decided in PS v Ontario, 2014 ONCA 900 that the Consent and Capacity Boards, the civil body used to review the holding of persons with mental illness in psychiatric institutions, was unconstitutional because it did not provide adequate powers to the CCB to protect the liberty interests of the patients.  The judgment was stayed for one year to give the Ontario Legislature an opportunity to redraft the legislation.  The legislature has until December 23 to amend the legislation, or it will become impossible to hold individuals in a psychiatric institution for longer than 6 months.

Ontario’s Bill 122 is that amendment.  It is currently awaiting third reading.

A quick review of the legislation shows the following major changes:

  • There is to be a greater involvement of Registered Nurses in panels
  • CCB will have the power to order that a person be
    • transferred to a different psychiatric facility
    • placed on a leave of absence
    • given a different security level and privileges
    • be allowed to visit the community
    • receive certain kinds of services
  • CCB will also have the power or order an independent assessment of the patient.

The granting of the ability to transfer, and change the conditions of a person’s custody in psychiatric care, goes directly to the requirements of the ONCA in PS v Ontario.

PS v Ontario represents a watershed moment for civil mental health law in Canada.  For a very long time there have been two more or less separate streams of jurisprudence with regard to mental health: that dealing with civil matters, which seemed to focus on the protection of the patient’s health and community safety, and those dealing with criminal matters, which balance health and safety with the liberty interests of the accused.  The Ontario Court of Appeal has said that, at least for patients held for a long period of time, the rules applying to criminal detainees with mental health issues should apply also to those are held in the civil system.

This is important, because without this change, there were fewer protections for the liberties of individuals who were NOT accused of or convicted of committing a crime.  In a very literal sense, the rights of people with mental illness were (and are) treated with less respect than the rights of the criminally accused.  I’m hoping to see similar changes in the near future in Alberta.