Alberta Queen’s Bench Strikes Down Overbroad Provisions of the Mental Health Act Permitting Involuntary Detention

451px-Hospital_sign.svg

This week, the Alberta Queen’s Bench released a decision assessing the constitutionality of involuntary detention under the Alberta Mental Health Act, both declaring the applicant’s rights had been violated through his detention, and striking down several provisions of the Act.[1] The applicant, JH, was hospitalized following a hit-and-run that injured his leg and back.[2] Complications from his injuries caused an infection, sepsis, and a liver condition, and doctors noted that he experienced a “1-2 month cognitive decline.”[3] After he began recovering, he wanted to be discharged from the hospital, but instead, was certified under the Mental Health Act and was detained at the Foothills Medical Centre.[4] Physicians’ reports were unclear as to the exact reason of his detention beyond a general cognitive disorder and lack of capacity, but his certificates were renewed, continuing his involuntary detention for several months.[5] One physician expressed concern that JH was at risk of harming himself unintentionally, including through relapsing into alcoholism which would worsen his liver condition.[6] However, he noted that JH did not have any psychiatric conditions. This physician “agreed that an acute care hospital was not the best setting for JH but he felt that there was no other place for him so as a result he continued to renew his certificates.”[7]

In JH’s situation in particular, the Court concluded that JH’s Charter rights had been breached in several significant ways. First, the certificates that were used to involuntarily detain him were “vague and incomplete,” and did not provide the proper authority to detain him.[8] This was a violation of his right to be free from arbitrary detention, and violated his section 7 right to liberty and security of the person, because he was deprived of them in a procedurally unfair manner. Further, he was not promptly informed of the reasons for his detention, as the medical staff did not provide him or his relatives with copies of the certificates that were being used to detain him, or written reasons as to why he was being detained, in violation of his section 10(a) Charter right.[9] Next, he was not advised of his right to counsel, and was not given information about how to access legal assistance to challenge his detention, in violation of section 10(b) of the Charter.[10] Fourth, he was treated with psychiatric medication without his consent, and in the absence of any psychiatric condition, in violation again of the section 7 right to security of the person.[11] Finally, he did not have a procedurally fair hearing to review his detention, because he was not given sufficient information about why he was being detained in order to be able to respond to the case against him.[12] The Court thus concluded that JH’s Charter rights were violated egregiously in his involuntary detention under the MHA.

In considering the broader question of whether the relevant provisions of the MHA violate section 7 of the Charter, the Court determined that they violate the right to life, liberty, and security of the person in an overbroad manner. The provisions of the MHA that permit involuntary detention in order to prevent self-harm require that two physicians be of the opinion that the patient is:

(a) Suffering from a 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 to continue at a facility other than as a formal patient.[13]

The court concluded that these criteria are overbroad, because they “den[y] the rights of many individuals who are being detained under the auspices of the MHA when they cannot benefit from treatment.”[14] Evidence demonstrated that many patients were being detained under the MHA not for the purposes of treatment, but because there were inadequate social supports available for them in the community—this occurred in JH’s situation because, as the judge wrote that “in fact, JH had no psychiatric condition that could be treated, he did not really belong in an acute ward of the Foothills but that so far, no other place had been found for him.”[15] Speaking to this predicament, one physician who testified expressed concern that the MHA was being “used to address the shortfall in other appropriate resources in the community by keeping people in designated facilities.”[16] Given that treatment of mental disorders is an integral component of the purpose of the MHA, if patients are regularly being detained even when treatment would not be beneficial for them, then there is evidently “no link between detention and the need for psychiatric treatment in a facility which is the purpose of the MHA,” making the legislation overbroad.[17] Consequently, the court struck down the detention provisions of the MHA given that they were in violation of sections 7 and 9 of the Charter, writing that “[w]ithout constitutionally valid criteria and procedures that comply with the principles of fundamental justice, these detention provisions cannot stand.”[18]

This decision provides important commentary on the potential rights violations that can arise through involuntary mental health detention, particularly when used in lieu of appropriate community supports, rather than for a clear therapeutic purpose.

This blog post was written by a CCLA summer law volunteer. Views expressed do not necessarily reflect the views of the CCLA


[1] JH v Alberta Health Services, 2019 ABQB 540.

[2] Ibid at para 11.

[3] Ibid at para 12.

[4] Ibid at paras 12-13.

[5] Ibid at para 20.

[6] Ibid at para 25.

[7] Ibid at para 26.

[8] Ibid at para 86.

[9] Ibid at para 95.

[10] Ibid at paras 95-96.

[11] Ibid at para 118.

[12] Ibid at paras 134-135.

[13] Mental Health Act, RSA 2000, cM-13, s 8(1).

[14] JH, supra note 1 at para 231.

[15] Ibid at para 138.

[16] Ibid at para 227.

[17] Ibid at para 302.

[18] Ibid at para 312.