Appeals under the Mental Health Act

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic will discuss an appeal of the decision made under the Mental Health Act.

If a person has been confined as a formal patient to a mental health facility under the Mental Health Act, the person can be controlled without their consent to prevent them from doing serious bodily harm to themselves and to others. Any force, or medication used to control the person must be reasonable in the circumstances.

The Mental Health Act says that a person is mentally competent to make decisions about their own treatment if they understand what the treatment is and what it should do for them. The declaration of mental competence will apply only for the purposes of the Act.

You or your decision-maker may appeal to a review panel, and then to the Court of Queen’s bench for a review of the decision regarding:

  • The issued Certificate of Admission or renewal certificate
  • An objection to receiving treatment.

If a patient makes an application regarding the cancellation of Admission, or renewal certificates, the onus is on the Board of the facility where the patient resides to show that the detention is required and the patient meets the necessary criteria:

  • The patient suffers from a mental disorder and in a condition to present danger to themselves or to others
  • The patient is unsuitable to continue at a facility other than as a formal patient.
  • The doctor’s opinion is correct

If the patient is found not competent to make their own decisions about the treatment they receive, the decision for the treatment must be made by the person’s Agent, which may have been appointed in a Personal Directive. If there is no such agent appointed, then it can be done by the Guardian of the person. If there is no guardian, then the nearest relative of the patient, if the patient does not object. If there is no one else to make the decision, then the Public Guardian will make the decision. The decision maker can only exercise their authority if they have been in personal contact with the formal patient over the 12 months before the decision to be made, and is willing to assume the responsibility for the treatment decisions. That decision-maker must also provide a written statement to certify their relationship with the patient.

The decisions for treatment must be made in the best interests of the patient and on the following basis:

  • Whether the patient will improve from the treatment
  • Whether the patient’s condition will deteriorate without the treatment
  • Whether the benefits will outweigh the risks
  • Whether the treatment is the least restrictive and intrusive.

If a patient’s Agent or Guardian makes the decision about the treatment for the patient, a second doctor must agree that the patient is mentally incompetent to make his own decisions.

If a doctor believes that a patient cannot make decisions about their treatment, the doctor must file a certificate with the Board of the facility and give their written reasons. The patient is entitled to notice of the proceedings, which includes a copy of the certificate and the written reasons. Copies are also sent to the decision-maker of the patient.

If the patient or their decision-maker objects to the treatment, the treatment cannot be given until the review panel makes an Order that it is alright to go ahead with the treatment. If the doctor feels that it is in the best interests of the patient to receive the treatment, the doctor may make an application to the review panel.

If the review panel is uncertain, they may ask for an examination of the patient by a psychiatrist who does not work at the facility.

To make an application to the review panel to cancel any certificates, notice of the application must be sent to the Chairman. The review panel will not hear any application where the application is frivolous, vexatious, or not made in good faith. Also there must be significant changes in the patient’s circumstances since any previous proceeding.

If there is no application made after 6 months of the admission of the patient, the Chairman shall consider an application made by the patient to hear and consider the cancellation of the existing certificates.

The review panel is to hold all proceedings in private, unless the Chairman gives permission. The applicant may have a representative with him at the proceedings. They may hear the evidence, and cross-examine on the evidence presented. In some situations, the patient may be denied some information if it could seriously endanger the patient in some way. You may want to consult with a lawyer if this is the case.

The Lieutenant Governor in Counsel has appointed an Advocate, the mental health Patient Advocate, to look after the rights of all formal patients in the province. The Advocate will investigate all complaints they receive about the admission process, and the treatment that a patient receives from the facility they are confined to.

An appeal may be made of the review panel’s decision to the Court of Queen’s Bench within 14 days of the decision. The Court will hear the evidence, and any new evidence in considering the appeal. The Court may issue an Order to cancel the certificates that declare the mental incompetency of the patient, or change the view panels decision about the objection to the treatment received. You should consult with a lawyer if you are making an appeal to the Courts.