JH v. Alberta (Minister of Justice and Solicitor General)

The respondent JH, a member of a First Nation in British Columbia, was admitted to the Foothills Medical Centre, run by the respondent, Alberta Health Services, on September 5, 2014 for the treatment of sepsis in his knee. Following surgery and a 20-day hospital stay, JH sought discharge. Instead, JH was admitted as a formal psychiatric in-patient, on the ground that he was at risk of self-harm and relapse to alcohol, via a Form 1 admission certificate which permits detention for one month. Renewal certificates in Form 2 were executed to keep JH involuntarily detained for nine months. During detention, JH was treated with anti-psychotic medications despite the certifying psychiatrist’s opinion that he did not require psychiatric treatment and JH’s refusal. Neither JH, his mother, his son, nor any other relative was informed of the reasons for JH’s involuntary admittance.

 In January 2015, four months into JH’s involuntary detention, he began to challenge his certification in pursuit of being released from hospital. JH’s appeal was heard and denied by the Review Panel on March 17, 2015. Having unsuccessfully progressed through the administrative reviews prescribed in the Act, JH appealed the decision to the Alberta Court of the Queen’s Bench and argued that Alberta Health Services violated his Sections 7, life, liberty, and security of the person, 8, search or seizure, 9, detention or imprisonment, and 10, arrest or detention, Charter rights. The trial judge held that Alberta Health Services did not properly meet its onus to show that JH fit the detention criteria in the Act and cancelled the renewal certificates and adjourned the constitutional issues raised. Alberta Health Services sought to have the constitutional issues dismissed, arguing that they were moot now that JH was released. The Court of the Queen’s bench heard this matter in 2017 and held that that their determination was in the public interest. The trial judge found that JH’s Sections 7, 9, and 10(a) and 10(b) Charter rights had been infringed during his involuntary detention at Foothills Hospital, and further, that the review and detention provisions in the Mental Health Act were overbroad and procedurally unfair and therefore were unconstitutional.

The trial judge determined that the purpose of the Act was to “temporarily detain acutely mentally ill persons for the purpose of treatment and release back into the community” (para 28). The trial judge held that the criteria for detention under Section 8, which states that detention can be extended where the patient is suffering from mental illness, is likely to cause harm to themselves or other or suffer mental or physical deterioration and is unsuitable to continue at a facility as anything other than a formal patient, was overbroad and therefore breached Section 7 of the Charter because it had the effect of including individuals who may not improve from psychiatric treatment, “harm” could be interpreted to be over-inclusive and there was no link between detention and the purpose of the Act. The trial judge held that the unlimited renewal of certificates, the lack of safeguards ensuring the rights in the Act were complied with, and the lack of ability of the review panel to tailor orders to the long-term patients’ liberty all breached Section 7 of the Charter. In conclusion, the trial judge held that Sections 2, 4(1), 4(2), 8(1) and 8(3) of the Act violated the Charter and therefore were of no force or effect. The trial judge gave Alberta 12 months to fix the legislative gaps in the Act.

Findings on Overbreadth

The Court held that the trial judge was correct in concluding that the Act was overbroad. The Court held that the failure to consider the conditions and duration of detention engaged Section 7 of the Charter in the context of mental health. The fact that the Act allowed for the restriction of an individual’s liberty and ability to make decisions triggered the application of Section 7 of the Charter.

The Court found that the trial judge was incorrect in determining that the purpose of the Act was to “temporarily detain acutely mentally ill persons for the purpose of treatment and release back into the community” (para 76). Instead, the Court held that the purpose was to “permit the state to restrict the liberty of individuals with significant mental health disorders where necessary to provide protection through treatment” (para 84). The Court held that the effect of the Act deprived patients of their liberty beyond what was necessary to achieve its purpose, and therefore, the Act was overbroad and violated Section 7 of the Charter. The Court found that the Act took an overbroad, all-or-nothing approach to the restriction of liberty. Under Section 41(1) of the Act, a review panel could decide only to renew or cancel a patient’s certification and resulting detention. Consequently, the Court held that that the Act was overbroad because it had no method by which to tailor the restriction of liberty to the circumstances of the case at hand.

The Court found the Act’s lack of clarity in defining “harm” and “mental disorder” caused the admission and renewal criteria to be overbroad. Under the Act’s “harm” certification criterion (Section 2(b)), the lack of definition meant that the Act captured people beyond what was intended. The Court held that the Act was being used to detain individuals with conditions significantly less severe than the psychiatric conditions it was meant to address because of the lack of clarity of “mental disorder” under Section 2(a); these included learning or developmental disabilities, brain injuries, and cognitive impairment.

The Court found that by not requiring a causal connection between a patient’s mental disorder and the risk of harm to himself or others, the Act was overbroad because it allowed for the detention of people who suffered from a mental disorder and were at risk of harming themselves or others due to something other than their mental disorder. The court held that this type of detention fell outside of the purpose of the Act – protection through treatment.

Findings on Procedural Justice

Under Section 38(1) of the Act a patient could apply to have their admission or renewal certificate cancelled. However, the Court held that the Act did not ensure a fair hearing in light of the vulnerability of the patients. The Court held that the Act allowed for the denial of liberty without fundamental justice and therefore violated Section 7 of the Charter because it did not allow for the patient’s case to be made fairly.

The Court held that the process by which reviews were initiated was unfair because the Act only ensured a hearing every six months, creating a risk of unnecessarily long detention in the interim. The Court held that the Act was deficient in ensuring that the patient knew the case they had to meet. The Court found that the Act did not sufficiently ensure timely and adequate access to medical records, nor did it ensure that patients had the support they needed to gain access to, and then understand, their medical records. The Court held that the Act did not ensure sufficient support for the patient in answering the case before the review panel. Particularly in light of psychiatric patients’ unique vulnerability, the Act did not go far enough to ensure patients had support, and the existing patient advocate system unacceptably relied on patients being proactive and resourceful in seeking help.

Findings on Sections 10 and 9 of the Charter

The Court held that the trial judge erred in finding that the Act violated Section 10(a) of the Charter. The Court found that the provisions met the requirements of Section 10(a) of the Charter to make reasonable efforts to inform the patient or surrogate of the reasons for the admission certificate.

The Court upheld the trial judge’s decision that the Act violated Section 10(b) of the Charter. The Act included no provision for the implementation of Section 10(b) and the Court held that it was necessary for the right, in this context, to be legislated.

The Court held that the Act’s provisions regarding detention enabled people to be arbitrarily detained and therefore the Act violated Section 9 of the Charter.

Remedy

The court declared the Act invalid.

“This blunt instrument will foreseeably overshoot the Act’s protective goals in some cases. It cannot be said that the Act takes into account the specific circumstances of the individual … on an ongoing basis. [...] In other words, the Act is overbroad because it does not allow for tailoring the degree of restraint of liberty to the individual case.” (Para 88)

“The trial judge found that the admission and renewal criteria were overbroad because they do not define or qualify “harm”. I agree that this creates overbreadth. For a patient with no history of psychiatric detention, community treatment is not available. Therefore, where a patient meets the other criteria and is “likely to cause harm” to herself or others, the result is involuntary admission.” (Para 89)

“The admission and renewal criteria require that an individual suffers from a substantial mental disorder and is likely to cause harm to himself or others or to suffer substantial mental or physical deterioration or serious physical impairment. These requirements are conjunctive, not causal. That is, there is no requirement that the risk of harm or deterioration result from the substantial mental disorder. Further, as noted, the magnitude of the likely harm to the patient or others is unqualified. To apply a reasonable hypothetical, the criteria would therefore allow for detention of a person who suffers from a substantial mental disorder and smokes cigarettes. [...] Such a detention would not advance the Act’s purpose of protection through treatment: if the potential harm is not connected to the mental disorder, then one cannot expect that treating the disorder will reduce the potential for harm.” (Para 91)

“The Act falls short of ensuring procedural fairness because it does not ensure that a patient or surrogate will know the case she must meet before the review panel. I would add that for the disclosure to be meaningful, it must be presented in a way that is comprehensible to the recipient.” (Para 110)

“The Act provides a right to representation, but it does not ensure representation. The difference is significant. In this context, the obligation to ensure a fair hearing includes the obligation to ensure that someone is present to advocate for the patient. Because the review proceedings are not likely to be legally complex, the advocate need not be a lawyer, though that could be one solution. Other solutions might include a suitably equipped guardian or other surrogate, or a person with sufficient expertise to make sense of the specialized subject matter and terminology. If the patient cannot make decisions in her own best interests, it may be necessary for an advocate to be present over her objections…” (Para 121)