Court of Appeal upheld Mental Health Review Board’s decision that the petitioner continued to meet the criteria for involuntary detention under the Mental Health Act

Administrative law – Decisions reviewed – Mental Health Review Board – Judicial review – Legislative compliance – Standard of review – Correctness – Mental health – Consent to treatment

A.T. v. British Columbia (Mental Health Review Board), [2022] B.C.J. No. 2090, 2022 BCSC 1905, British Columbia Supreme Court, November 1, 2022, M.B. Blok J.

The petitioner sought judicial review of a decision by a panel of the Mental Health Review Board (the “Board”) that he be involuntarily detained under the Mental Health Act, R.S.B.C. 1996, c. 288 (the “Act”). The petitioner had previously successfully sought judicial review of the panel’s first decision, and in the present case sought judicial review of the panel’s redetermination.

The petitioner had a history of mental health issues including self-harm behaviours. He had been certified under the Act and hospitalized on six occasions, events that typically involved police intervention. He had a history of declining to take psychiatric medication voluntarily. On one occasion, police were called to assist at a hospital emergency department when the petitioner became agitated and made a variety of death threats. After the petitioner’s last hospitalization, he was released with supervision and treatment as an involuntary patient within the community. This involved the taking of medication daily in the presence of a pharmacist.

Following a hearing, a panel of the Board decided that the petitioner would continue to be involuntarily detained. The petitioner successfully sought judicial review of this decision. The Court found that the panel had failed to correctly apply s.25(2) which reads as follows:

25(2) The purpose of a hearing under this section is to determine whether the detention of the patient should continue because section 2(3)(a)(ii) and (c) continues to describe the condition of the patient. (bold emphasis added)

The Court held that the panel’s finding that there was no requirement under the Act that the petitioner have current symptoms that seriously impair his ability to react appropriately to his environment was incorrect in law. The Court remitted the matter to the Board for redetermination, specifically with respect to whether the petitioner had a mental disorder that continued to seriously impair him.

At the redetermination hearing, the panel ordered that the petitioner continue to be involuntarily detained. The panel considered the evidence of the petitioner’s treating psychiatrist as well as the petitioner’s own evidence that if he were not involuntarily detained, he would not continue with his medications. The panel noted the petitioner’s lack of insight even while taking medications, as he believed his past paranoid thoughts were based on real events and he did not believe anything bad would happen if he stopped taking his medication.

On review, the Court considered whether the review panel had correctly applied s.25(2) of the Act. They found the panel’s conclusion was correct: the petitioner’s profound lack of insight into his psychiatric condition with associated impairment in judgment was a current and ongoing symptom of his mental disorder and it was not a symptom that only emerged when the petitioner discontinued treatment. The application for review was accordingly dismissed.

The Court went on to consider whether the Act would apply if the petitioner was asymptomatic. Following a comprehensive statutory interpretation exercise with respect to the Act, the Court ultimately concluded that the definition of a “person with a mental disorder” in s.1 of the Act requires that a person have seriously impairing, active symptoms of a mental disorder. A person may meet this definition where, as a result of their symptoms, there is a significant risk that, if discharged, they will fail to follow their treatment plan. In other words, where there is a risk that a patient will, as a result of a mental disorder, fail to follow a required treatment plan if discharged, this is a matter that may be considered “seriously impair[ing]” under the s.1 definition.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at jbarnum@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.