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Alberta Mental Health Act Unconstitutional

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A patient at Calgary’s Foothills Medical Centre who was detained under the Mental Health Act has successfully challenged the constitutionality of the law. Court of Queen’s Bench Justice Kristine Eidsvik ruled Wednesday that sections of the act infringe on the Charter.

Alberta now has 1 year to fix its Mental Health Act after court rules it violates basic rights. An Alberta Justice has ruled six sections of the law to be unconstitutional after reviewing the case of a man who was detained 9 months and medicated against his will.

A court has ruled sections of Alberta’s Mental Health Act unconstitutional after reviewing the case of a Calgary man confined to hospital for more than nine months and medicated without his consent.

The decision, issued Wednesday by Court of Queen’s Bench Justice Kristine Eidsvik, will likely have significant impacts on health care in Alberta.

Eidsvik gave the Alberta legislature 12 months to overhaul the act to bring it in line with the Charter.

Eidsvik wrote the man “suffered multiple breaches of his fundamental rights to life, liberty and security protected by Section 7 of the Charter, was arbitrarily detained in breach of Section 9, and was not given appropriate notice of the reason for his detention or his right to legal counsel.”

The case concerns an Indigenous man in his 40s, identified as J.H. to preserve his privacy. J.H. was detained against his will at Calgary’s Foothills Medical Centre under the Mental Health Act in September 2014 after being admitted for another medical issue.

J.H. was the victim of a hit and run earlier that year and required hospitalization for several months. While in hospital, he lost his apartment and was homeless when it came time to discharge him.
In early September, an outreach team brought J.H. back to Foothills after he began to experience complications from his injuries. J.H. underwent surgery, but was improving after 20 days and wanted to be discharged.

Instead, on Sept. 25, 2014, J.H. was certified under the Mental Health Act, legislation that allows doctors to detain under certain circumstances people they suspect are suffering from mental illness.

Doctors said J.H. was “disoriented, (lacked) insight into the seriousness of his medical condition, (stated he) wants to leave hospital” and had an “unsteady gait.” J.H. had no prior history of mental illness.

J.H.’s initial admission certificate, which was later renewed, allowed the hospital to hold him for one month. He was only released in May 2015, after successfully appealing his detention to the court.

J.H. and his lawyers challenged the constitutionality of the act.

Eidsvik found multiple issues with how J.H. was detained. His renewal certificates were “incomplete or inadequate,” and neither J.H. nor his family were ever given written notices explaining why he was being held. Further, Eidsvik said AHS staff failed to tell J.H. that he had a right to seek legal advice.

J.H. was treated against his will with psychiatric medications which were not “medically required,” the judge said.

Eidsvik went on to rule six sections of the Mental Health Act unconstitutional.

Specifically, Eidsvik recommended the Act’s criteria for detaining someone be revised, and suggested the health care system add new safeguards to improve patients’ rights.
“This could include requiring the patient advocate to meet with each patient upon detention (or so soon thereafter if the patient is unwell at detention) to advise them of their rights and provide the written information required,” she wrote.

Salimah Janmohamed, the lawyer who represented J.H., said the current system allows health-care professionals to detain people under the Mental Health Act with little oversight.

She said: “They may have looked at it as, ‘Here’s a person who has gone through all this stuff, and needs some time to recuperate.’ But that’s being paternalistic in many ways. You can’t just tell somebody you’re not allowed to go if the person wants to go.”

“You have a system that’s operated by doctors who are trying to do the job of lawyers,” she added. “They’re trying to make decisions that will impact the liberties of an individual.”

Janmohamed added that the government was not able to produce any statistics on how many people are detained on mental health certificates.

Spokespeople for both the Ministry of Justice and Solicitor General and AHS said they are reviewing the decision.

Adapted Calgary Herald, July 17, 2019