People detained in B.C. psychiatric wards lack legal protection due to 'uniquely problematic' law: experts

A peer-support worker who helps youth with mentalhealth challenges says being involuntarily detained in a psychiatric
facility half a dozen times has given him insight into the lack oflegal protections for vulnerable patients in British Columbia.

Rory Higgs said he first sought treatment in hospital at age 18during a difficult time in his life, but did not know he could bekept there, medicated against his will and placed in a seclusionroom.

"It was a very jarring experience. I was not really told whatwas going on. And I was freaking out quite a lot because it was ashock to me,'' he said, adding a second psychiatrist reassessed anddischarged him the following day.

B.C. is the only province where the Mental Health Act allows forso-called deemed consent to treatment.

The legislation states that anyone with involuntary status underthe law is presumed to have agreed to psychiatric treatment. Familymembers and other advocates are also barred from challengingprescribed treatments.

Higgs, now 25, is among advocates for the mentally ill who saythe law must be changed for patients who need more support in thecommunity.

After his first detention, Higgs was held at a psychiatricfacility about five more times over the next three years with a
diagnosis of psychosis.

Higgs said he was never formally advised that he could apply fora review of his detention and only learned more about his right to ahearing toward the end of his hospitalizations. He felt powerless toargue against involuntary detention, even with the help of anadvocate through a legal aid program for patients, he added.

A major challenge of the system is that reviews are notmandatory, Higgs said.

Board'concerned' about lack of hearings

Unlike in Ontario, B.C. has no independent advisory agency thatinforms patients of their right to a lawyer.

Patients at B.C. facilities are entitled to a hearing within 14days of their request.

But the Mental Health Review Board, which conducts the hearings,said in a recent report that it is "concerned'' about the number ofapplications that do not proceed to a hearing.

The report found that only 37 per cent of patients who appliedfor a hearing had one. It said 54 per cent of scheduled proceedingsdid not go ahead because the patient withdrew their application,sometimes when they were discharged from hospital and placed onso-called extended leave in the community, where they are connectedto a mental health team.

"The number of withdrawals may or may not raise an access tojustice issue,'' the report said.

About a third of hearings did not proceed because patients weredecertified after they requested a hearing.

"A decertification may show that treating physicians are beingresponsive to the needs of their patients,'' the report reads.

"Adecertification may also indicate an abuse of process. The boardwould like to measure whether a patient is decertified andrecertified in order to avoid a review panel hearing."

Meagre funding for representation: lawyer

Lisa Wong, a lawyer who sits on review board panels, said a lackof funding for legal representation through the provincially fundedMental Health Law Program is a big issue for patients who sometimesshow up at hearings without an attorney.

Patients who are on extended leave in the community can alsoapply for a hearing, but lawyers may not be able to reach those whoare living in a single-room occupancy hotel, for example, wherephone messages are not always relayed or received, she said.

Wong said applications are withdrawn in nearly half the caseswhen lawyers said they did not get instructions from patients, whichcould also mean there was no contact with the applicant. She notedno reasons have to be provided due to lawyer-client privilege.

Mental health laws across Canada allow people to be detained ifthey are a danger to themselves or others.

Health systems 'crisis driven,' prof says

Marina Morrow, a professor at the school of health policy andmanagement at York University in Toronto, said B.C.'s laws are "uniquely problematic'' because psychiatric treatment becomescompulsory but there is no oversight of the law, which is considereddiscriminatory against those with a disability and no mechanism forautomatic review.

However, she said, mental health systems across the country are "crisisdriven'' because psychiatry and acute care are funded while manyother mental health supports are not, so ending up in the emergencydepartment before being detained becomes a route to accessing carein the community for many patients.

"It makes sense to me that a psychiatrist will say 'Go toemergency and maybe you'll get some help that way,''' Morrow said, adding patients in B.C. could be forcibly administered medicationsand electroconvulsive therapy.

"There's been frustration in B.C. for many, many years, withpeople raising concerns about the act and really little governmentalresponse.''

Jay Chalke, the B.C. ombudsperson, said in March2019 that a month-long audit of all provincial psychiatricfacilities revealed a rights-advice form that patients should havesigned was not found in 51 per cent of files.

Chalke's recommendations were accepted by the Ministryof Healthand the Ministry of Mental Health and Addictions, as well as the attorney general, but Chalke, who is expected to issue a followup report in thespring, said some promised timelines for action had passed.

The ministries did notrespond to requests for comment on whether they would considerdropping the deemed-consent aspect of the Mental Health Act.