MAINTAINING THE FRAGILE BALANCE:
ENSURING REPRESENTATION AT REVIEW PANELS UNDER THE MENTAL HEALTH ACT
March 2014
1.INTRODUCTION:JUSTIFYING THE NEED FOR INCREASED FUNDING
The Community Legal Assistance Society (CLAS) is funded to provide representation for persons who have been certified under the Mental Health Act and whose committal to a mental health facility is being reviewed by an independent Review Panel. Fundamental interests are at stake in these Review Panel proceedings because the panel has the power to decide whether a person will continue to be detained and whether medical treatment can continue without his or her consent. These proceedings engage the right to liberty and to physical and psychological integrity, two of the foundational human rights to which we accord a high level of constitutional protection.
CLAS has provided representation to persons subject to civil committal proceedings since 1991 through an effective and cost-efficient service delivery model which employs a mix of lawyers and trained and supervised advocates. CLASdelivers these services pursuant to a contract with the Legal Services Society (LSS) which is in turn funded by the provincial government. In the past, an additional grant has also been provided directly from the Ministry of the Attorney General to ensure these important legal needs are fully met.
Since 2004, there has been a clear trend of increased demand for representation services before Review Panels and the number of more complex extended leave hearings has also been on the rise. Funding for these services by LSS has not kept pace with the demand for services. As a result, CLAS has had to reduce staffing and decreased its ad hoc counsel budget.
Additionally, since April 1,2009, CLAS has put a cap on the ad hoc hearings throughout the province and set the number of hearings contracted for each month in each region. Thus whether a person has access to an advocate will depend upon where in the province they are detained and how many hearings have taken place in that region during the month. In the past fiscal year, CLAS was unable to assign to assist over 200 detained patients who had requested counsel to help them with the preparation and representation at Review Panel hearings.
These individuals will have three options: (1) postpone their hearings until an advocate is available; (2) attend the hearing on their own; or (3) cancel their hearing indefinitely. None of these options is acceptable as they jeopardize the fairness and constitutionality of the mental health regime in British Columbia. A review panel is the only accessible means of challenging one's civil commitment. Strong procedural protections are required to maintain the fragile balance of individual and public interests that are at stake in civil committal proceedings. Readily available and effective representation of the individual is an essential element of this balancing act. This briefing memo provides additional background information and analysis on this vital issue.
2.what is at stake? an overview of the mental health act scheme for civil commitment
The British ColumbiaMental Health Act authorizes civil commitment to a designated facility if two physicians certify that the individual meets the criteria for civil commitment. Those criteria are set out in s. 22 of the Act:
1. The person or patient has a mental disorder (s. 22(3)(a)). [ This is defined in s. 1 as a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability: (a)to react appropriately to the person's environment, or (b)to associate with others]
2. The person or patient requires care in or through a designated facility; (s. 22(3)(c)(i)) .
3. The person or patient requires care, supervision and control in or through a designated facility to prevent the person' s or patient's substantial mental or physical deterioration or for the protection of the person or patient or the protection of others, (s. 22(3)(c)(ii)) and
4. The person cannot suitably be admitted as a voluntary patient. (s. 22 (3) (c)(iii))
The addition of “substantial mental or physical deterioration” in 1999 significantly expanded the scope of civil commitment. The broader reach of the current legislation enhances the need for an effective and prompt form of review. While the previous standard of a risk to self or others has been upheld as constitutional,[1] this broader standard has not yet been subject to Charterscrutiny by the courts. In upholding the previous civil commitment standard, Justice Donald specifically referred to the availability of "ready advice and representation" by CLAS advocates as a key safeguard for the civilly committed individual.[2]
There is no requirement that the physicians certifying the individual be psychiatrists nor need they have an ongoing relationship with the patient. An individual can be detained for up to 48 hours on the certification of only one physician. [s.22(1)] A police officer can take an individual who apparently is suffering from mental disorder to a physician if that person is acting in a manner likely to endanger that person's own safety or the safety of others. [s. 28]
Once two certificates have been completed, an individual can be detained in a provincial mental health facility or psychiatric unit for one month and must be released at the end of that month unless the certificates are renewed on the same standard as required for initial commitment.[s. 24(2)] The first renewal authorizes detention for an additional month. The second renewal is for three months after which all renewals are for a period of six months. The Mental Health Act Regulations provide that an individual be granted a hearing within 14 days of his or her application being received by the review panel office during each of the first two periods of detention, and within 28 days in subsequent periods of detention. Once an individual has been civilly committed, that person can be given treatment without consent. Section 31(1) provides that, once the patient has been committed, "treatment authorized by the director is deemed to be given with the consent of the patient."[3] Thus in addition to the loss of liberty, inBritish Columbia civil commitment eliminates the otherwise widely held right to refuse treatment.
The Mental Health Act requires that when a patient is detained in a mental health facility, either initially or when certification is periodically reviewed to extend the detention, the patient must be formally notified of their right to request a review panel hearing. They must also be notified of their right to retain and instruct counsel without delay under s.10(b) of the Canadian Charter of Rights and Freedoms. These statutory rights recognize the reality that patients subject to the civil committal regime will frequently need counsel to help them understand their rights, decide whether to request a hearing and, if so, prepare for and represent them at the hearing.
The Mental Health Act provides three mechanisms by which an individual can challenge his or her involuntary commitment. First, under section 33 of the Act, the individual or a person on his or her behalf may apply to the B.C. Supreme Court for judicial review of the detention. If the court is "not satisfied that there is sufficient reason or legal authority for the certificate" it has the power to release the individual.[s.33(8)] This is a complex, time-consuming and expensive route which very few individuals pursue. Second, the Act specifically retains the individual's right to apply to a superior court for a writ of habeas corpus. Finally, an individual has a right to apply for a Review Panel which will determine whether the criteria for civil commitment can still be met. The Review Panel is the most accessible, timely, and affordable option for the vast majority of individuals seeking to have their detention reviewed.
The Review Panel is a three-person tribunal which must include a medical practitioner, a member in good standing with the law society (or a person with equivalent training) and a third member who is neither a medical practitioner nor a lawyer.[s.24.1(3)] All Review Panel members are appointed by the Minister of Health. In addition to the tribunal members the mental health facility in question must appoint someone to present the hospital's case to the Review Panel. This is not a statutorily created position but rather one that has evolved through ministerial guidelines. The presenter, usually a physician and often the treating physician, will make the case to the panel in favour of detention. Prior to the panel, the presenter may meet with the treating physician, review the patient' s records and may meet with the patient to assess his or her mental state. Having a doctor present the case for detention frees up the physician on the tribunal to play a more objective role. (See Guidelines for Case Presentations and Mental Health Review Panel Hearings, prepared by the Review Panel Office). Case presenters may present the case orally or in writing although the guidelines suggest that detailed written submissions should only be used where the patient is represented by an advocate. Thus, a person independent of the tribunal is making the argument for detention to the tribunal. Where a patient is unrepresented, this skews the balance significantly because there is no one equally prepared or experienced to present the case for the patient.
The importance of representation to ensure fair and balanced proceedings was recognized in the evaluation of the Mental Health Law Program prepared for Legal Services as early as 1992:
... lack of representation and the compromises it imposes on the Review Panel are in direct opposition to other structural and organizational changes that are taking place. Most notably, the recent introduction of a hospital Presenter (who provides the case for keeping the patient in hospital) structurally begs the question of a parallel Advocate presence to make sure that the case for release is fully presented.[4]
A Review Panel's task is to determine whether the criteria for civil commitments are still met. The panel should consider all reasonably available information concerning the patient's history of mental illness including hospitalization for treatment and compliance with medications, and must make an assessment as to whether “there is a significant risk that the patient, if discharged, will as a result of mental disorder fail to follow [his/her] the treatment plan” necessary to minimize the possibility of re-commitment. [s. 25(2.1]
The unrepresented individual may have little knowledge of the standard to be applied or the issues to be considered by the Review Panel. Such an individual may not be able to assess whether witnesses would be helpful or what evidence is most useful to the panel. For example, the unrepresented individual may not know that the Panel will put significant weight on discharge plans in reaching its decision. The unrepresented individual may have less opportunity to develop such a plan prior to the hearing. The unrepresented individual may also have difficulty accessing his or her medical records prior to the hearing. Further difficulties exist where the patient cannot read or is not fluent in English. The Guidelines for Case Presentations at Mental Health Review Panel Hearings (provided by Review Panel Office) give an idea of the complexity of the information that may be necessary at the Review Panel hearings:
... the review panel needs information about the patient's history both as an inpatient and outpatient. Panels often receive more information in one category than the other. Case presenters for hearings that inpatient facilities often present detailed historical information about the current and previous hospitalizations at that facility. And case presenters for hearings at outpatient facilities with patients on extended leave often present detailed historical information about compliance with community treatment plans at that facility. But in both situations the patient history information presented at the hearing in regard to treatment at other facilities may be quite limited. Panel members routinely have questions about the information case presenters give them. In order to help the panel members ensure that they are properly considering all reasonable available evidence, all relevant medical and nursing notes (including "old charts") should be accessible to the case presenter during the hearing. In some cases it may be necessary to adjourn the hearing if information is missing which appears to be crucial. For example, if the hearing is at an inpatient facility for a patient recalled from extended leave, the panel's ability to reach a sound decision may depend substantially on having at least a summary of known previous hospitalizations and outpatient facility information on compliance with community treatment plans.... (P)anel members will be will be interested (sic) in knowing the available information in the patient's records concerning the patient's history of both voluntary and involuntary hospital admissions and compliance with treatment plants in the community.
It is very difficult for a patient to access and be prepared to respond to such a wide range of evidence. When one considers that such a patient is likely to have a mental illness and may well be medicated at the time of the panel, the need for some sort of advocate increases exponentially. As the LSS Quantitative Analysis of the Mental Health Law Program concluded, "the clients of MHLP are the most challenging of clients in B.C. with mental health problems".
The Chair of a Review Panel has the authority to exclude the patient from attending the hearing if that is considered in his or her "best interests". [s.25(2.6)] While the standard is the best interests of the patient, exclusion may also be sought by a witness or by the presenter if there is concern about presenting particular evidence in front of the patient. There may, for example, be information in the medical chart or from other witnesses that is sensitive and an issue of whether this information can be disclosed to the individual becomes significant. It is virtually impossible for an unrepresented patient to make arguments regarding this issue because he or she will not have seen the evidence at issue. An advocate, by contrast, can request a pre-hearing conference with the Chair of the panel and the presenter to determine whether particular information can be disclosed to the patient. If the patient is in fact excluded for part of the hearing, the need for an advocate is particularly acute.
While the patient has a right to hire a lawyer for his or her Review Panel, lawyers are rarely present at the hearings. The paralegal advocates provided by CLAS are realistically the only advocates available to the vast majority of persons seeking a Review Panel. With the increasing demand on these advocates, they are unable to fulfill every request for representation. This may leave patients with the unenviable task of choosing between continuing their Review Panel unrepresented or delaying the panel and thereby potentially extending their period of involuntary hospitalization. The Review Panel is a patient-initiated process. Unlike in the criminal context, unless the patient applies and goes through with his or her application, there will be no review of detention by the Review Panel.[5]
A patient has a right to a Review Panel during each period of detention, first within the first month, the second month, the following three months, and after that every six months. If a patient wants to be represented by an advocate at the Panel, it is quite possible that he or she will lose the opportunity to have the detention reviewed within the statutorily prescribed periods and may well end up having his or her detention renewed without ever having the case reviewed by the Review Panel.
In his letter to the Attorney General, Allan Tuokko, (June 8, 2009) Chair of the Mental Health Review Panel , describes what happens when a patient is denied an advocate for a panel:
In about half the cases, on being told their requests for counsel were denied, patients at least initially decided to proceed on their scheduled hearing dates without legal representation. In about a quarter of the cases, patients abandoned their right to proceed with the scheduled hearing within 14 or 28 days once they knew they would have proceed without any legal assistance. Of the remainder of the cases, on being told no advocate could be assigned, some patients decided to abandon their right to a hearing altogether by outright withdrawing their request for review. It seems fair to infer, based on this and our registry experience, that considerable distress and discouragement has been caused by CLAS having to inform detainedpatients that counsel cannot be assigned for their scheduled dates without even being able to assign counsel for a future hearing date. It also seems fair to infer that some of the patients who did not proceed with their hearings may well have had valid grounds to support their release by a review panel. For the others, it seems fair to note that at least they would have had the benefit of a hearing and decision by an independent tribunal external to the detaining facility. As an access to justice issue, I expect each patient who felt they should have been released and did not proceed with their hearing after being denied counsel felt aggrieved and unheard.