Mental Health Act to change after unconstitutional ruling
EDMONTON The UCP government has tabled an amendment to the Mental Health Act to strengthen patient rights after Alberta’s top court ruled the involuntary hospital detention of a man without a history of mental illness was unconstitutional.
Changing the definition of mental disorder, Bill 17, the Mental Health Amendment Act, if passed, would mean an individual with a brain injury could not be detained unless he or she also has a mental health disorder and could benefit from psychiatric treatment.
In 2014, a homeless Indigenous man, identified in the ruling as J.H. to protect his privacy, was held in Calgary’s Foothills Medical Centre for nine months after being admitted for a separate medical issue.
Despite no history of mental illness, a doctor certified J.H. under the Mental Health Act, which allows medical officials to detain and treat people they believe are suffering from mental illness and could be a danger to themselves or others.
A doctor who certified J.H. said he had a cognitive impairment caused by a liver condition, and lacked the capacity to make decisions around health care and accommodation.
Last July, Court of Queen’s Bench Justice Kristine Eidsvik found sections of the Mental Health Act used to certify J.H. unconstitutional. She gave the provincial government 12 months to fix the problems.
The deadline was pushed back due to the COVID-19 pandemic, but the government appealed the decision on the grounds that J.H.’S detention did not violate constitutional rights.
The court’s decision on the appeal is expected at the end of September.
On Thursday, Health Minister
Tyler Shandro said the Mental Health Amendment Act not only addresses the 2019 decision, but was necessary to protect patients rights and improve the efficiency of the mental-health-care system.
“We’re not making these amendments because we’re reluctant or being forced to do them. We’re making these amendments because they’re the right thing to do for patients and their families,” he said at a news conference.
Regardless of the court’s decision, the government is committed to the principles in the bill,
Shandro said.
The bill clarifies that a health professional must believe that those with mental illnesses could cause harm to themselves or others “within a reasonable amount of time.”
Previously, the Mental Health Act did not set any time limit on the risk of harm, allowing a doctor to certify people if they felt harm could occur years later.
NDP Opposition mental-health critic Heather Sweet said the bill only addresses the bare minimum of recommendations from the court ruling, and failed to fully define the issue of harm under the Mental Health Act, a serious issue raised by the case.
“And sometimes, because there’s no actual clear definition, that can be a hard definition to be able to have a medical professional determine,” she said.
The lack of clarity could lead to people being considered at risk of harm and having their freedom restricted or charter rights infringed upon, she said.
Jason Morris, a Legal Aid lawyer who represents patients detained under the Mental Health Act, said the bill takes several positive steps, but doesn’t completely solve the issue of how harm will be factored into involuntary hospitalization decisions because it says a person could be certified if they are likely to “suffer negative effects.”
“The degree to which it has been opened up to interpretation causes me concern,” Morris said, noting that getting arrested or being homeless could be considered suffering negative effects.
At the same time, he applauded that the bill requires the opinion that a person would be likely to suffer harm related to the mental illness “within a reasonable amount of time.”
“Whatever the risks and the benefits, you should be required to show that hospitalization is necessary and that there are no adequate alternatives,” he said.
In 2018-19, roughly 12,000 people were detained under the Mental Health Act.
With this change to legislation, the government anticipates there will be 1,000 fewer individuals detained per year.
Also under the bill, for the first time, nurse practitioners would be able to assess, examine and supervise patients in place of doctors. Physician oversight would be maintained in some cases.
Bill 17 would also designate new facilities in hospitals or medical centres for law enforcement to take patients to undergo a first assessment.
Under the current legislation, those assessments need to be done in one of about 20 sites across the
Whatever the risks and the benefits, you should be required to show that hospitalization is necessary.
province. They can be difficult to access, especially from rural communities, Shandro said.
In addition, video conferencing would soon be used for virtual assessments for mental health patients.
The government said it’s also trying to improve the information that health professionals have to provide to patients that have been detained, and their families.
“These individuals should not be kept in the dark at such a critical time,” said Shandro.
That would include requiring hospitals to provide free and timely access to medical records and information about legal counsel and the mental health patient advocate. Patients staying in a hospital for more than 30 days would be provided with a treatment plan, including criteria for release, so they know what to expect.
Patients would also be provided with more time to appeal a mental health panel’s decision.
The bill’s changes could increase access to community treatment orders, which are intended to help patients maintain compliance with treatment while in the community, and that will probably help people, said Morris.