November 10, 2020

Author: Fiona Balaton

On July 17, 2019 the Alberta Court of Queen’s Bench ruled in JH v Alberta Health Services, 2019 ABQB 540 that several provisions in the Mental Health Act, specifically those pertaining to involuntary detention, were unconstitutional. The court gave the Alberta legislature twelve months to make amendments to the Mental Health Act to address the provisions of concern. Alberta Health Services filed an appeal of the J. H. decision, which was ultimately dismissed on September 11, 2020.

Bill 17, the Mental Health Amendment Act (MHAA) forged ahead despite the pending appeal and introduced a number of new terms and concepts, primarily to the formal certification process. The MHAA received Royal Assent on June 26, 2020, and the majority of amendments came into force upon proclamation on September 30, 2020. This blog post explains some of the key changes and comments on how these changes will affect patients, families and health care providers.

Changes in the Mental Health Act

Change in Definition of Mental Disorder

One of the major changes is to the definition of “Mental Disorder” in the Formal admission criteria. Previously, Mental Disorder was defined as 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 MHAA narrows this definition, excluding any disorder “in which the resulting impairment is persistent and is caused solely by an acquired or congenital irreversible brain injury”; limiting the likelihood of a JH scenario being repeated. While this is obviously an attempt to improve Charter compliance, there is some concern that this change presupposes that there are other health services available to individuals suffering from physiological cognition, mood, or behaviour challenges. Recognising that inpatient psychiatric units are not the most appropriate place for such patients, current language at least provides a stop gap while a more appropriate placement is found. This change elicits legitimate concerns that the government has effectively limited resources available to patients with brain injuries without ensuring alternative services are available to them.

Change to Admission & Renewal Criteria

The MHAA has also revised the Formal admission criteria. Changes are illustrated below in red. In order to certify a patient using a Form 1 or a Form 2, a qualified health professional must be of the opinion that an individual:

(a) is suffering from mental disorder;

(b) has the potential to benefit from treatment for the mental disorder;

(c) is, within a reasonable time, likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder; and

(d) is unsuitable for admission to a facility other than as a formal patient.

These changes have significant implications. As of September 30, 2020, only people whose disorder could be improved by treatment can be detained. This another example of a well meaning change, designed to improve patient care and restrict the detention criteria, but with little apparent thought to the practical implications. The amendments may create a scenario where people deemed likely to cause harm, but not expected to benefit from treatment, are exempt from detention; and raises questions about public safety.  Whether health professionals are now required to allow harm to transpire and whether risk management is being left to the criminal justice system are not addressed.  Similarly, how individuals are deemed to not be in need of care or how care needs will be met if involuntary hospitalisation is not available is unclear.

Further, the MHAA changes the harm criteria required for certification, adding that an individual must be likely to cause harm “within a reasonable time” as opposed to the more general language in the Mental Health Act that the individual is likely to cause harm. The intent is to avoid unnecessary detention, but the amendments do not define what “a reasonable time” means, and fail to address people not imminently at risk of self harm or harm to others, but who may still present a risk of such harm under certain circumstances.

Qualified Health Professional

The MHAA expands the personnel authorized to complete forms and certifications from physicians to Qualified Health Professional (QHP). The Act generally defines QHP to mean a physician, nurse practitioner, a person who is registered under section 33(1)(a) of the Health Professions Act.

The Minister may designate other qualified health professionals under the Mental Health Act Regulations in the future but at this time, a QHP is a psychiatrist, physician, or nurse practitioner.

Treatment Changes

Section 9.01 of the MHAA now requires that patients are provided with a written individualized treatment plan within one month of a second admission certificate being issued. Section 9.01 further mandates that a treatment plan must set out the type of treatment expected to be provided; criteria on which release from the Formal status will be granted; and criteria on which privileges and passes will be granted.

Changes to Mental Health Review Panels

Mental Health Review Panels hear applications from patients on issues such as admission and renewal certificate cancellations, and the cancellation of Community Treatment Orders. They also hear applications related to treatment decisions.

The MHAA provides patients 30 days, instead of 14, to appeal a review panel’s decision, and allows review panels to:

• order a facility to issue a Community Treatment Order instead of detaining a patient, when doing so is more appropriate; and
• order additional, independent psychiatric opinions.

Other Key Changes

Other changes that seek to improve patient rights and access to care include:

• Allowing people held under the act to be assessed and examined by videoconferencing, where appropriate;
• Allowing initial assessments and examinations to be conducted at more locations to reduce travel and wait time; and
• Health care professionals are now required to inform the patient of:
• Right to legal counsel
• Steps to obtain free legal services
• Right to contact the Mental Health Patient Advocate
• Right to timely and free access to medical records for purposes of appeal

Calgary Health Lawyers

Most amendments came into force on September 30, 2020. The Court granted a request for extension by Alberta Health Services on the timeframe for changes to the definition of Mental Disorder. The new definition will now be delayed until March 31, 2021.

For any questions about Bill 17 amendments to the Mental health Act, please contact any of our Health Law lawyers.