BC Supreme Court finds Mental Health Review Board applied law incorrectly on “fundamental question”

Laws that grant power to detain people, like the Mental Health Act, can have serious impacts on a person’s life and wellbeing. When laws authorize detention, it’s important that there are safeguards in place to ensure that no one is detained unfairly or improperly.

One of these safeguards is the right to have your detention reviewed by an independent court or tribunal that can ensure that the people making decisions to detain someone understand their power and exercise it correctly. The vast majority of involuntary patients under the BC Mental Health Act never get independent review of their detention, but the few that do get it from the Mental Health Review Board: an independent tribunal that involuntary patients can access to challenge their detention through a review panel hearing.

Image: Person from behind with long, dark braid. Text box that says “BC Supreme Court: a mental health review panel must consider whether an involuntary patient meets the Mental Health Act criteria at the time of the hearing, not in the past.”

But what happens when the Mental Health Review Board makes a mistake?

The BC Supreme Court recently overturned a decision of the Mental Health Review Board because the Board members made a legal error in their decision.[i] A.T., represented by the Community Legal Assistance Society, had been an involuntary patient since March 2020 and applied for a review panel hearing to challenge his ongoing involuntary status under the Mental Health Act. At the hearing A.T. and his advocate argued that he no longer met the criteria to be an involuntary patient, pointing to evidence of his current well-being, including his close relationships with his mother and sister who spoke of how well he was doing. The Board members rejected the arguments about his current mental health, and instead found that he still met the criteria under the Mental Health Act by considering how he was doing in the past when he was unwell or untreated.[ii]

The BC Supreme Court judge found that the Board members had ignored the obligation to determine whether or not the legal criteria were met at the time of hearing. The judge concluded that the Mental Health Act is “clear that it is the role of the review panel to look afresh at all the criteria”.[iii] If you could be detained under the Mental Health Act on the basis that you met the criteria at some point in time in your life, the results could be disturbing: prolonged or permanent detention based on “being the type of person with a mental disorder”, rather than considering how impaired or healthy you are right now.

The application of the wrong legal test at A.T.’s hearing is, of course, very concerning for him. It meant he did not get a fair hearing and his involuntary status under the Mental Health Act continued even when he might not have met the legal criteria. But this judicial review decision illustrates some system-wide problems as well.

This is the first judicial review decision of the Mental Health Review Board that the BC Supreme Court has published in over 28 years. [iv]

It’s also the first judicial review interpreting the Mental Health Act criteria for detention since the criteria were expanded in 1998. That doesn’t necessarily mean there haven’t been other judicial reviews brought before the courts that haven’t resulted in a published decision, but it does show a serious lack of oversight and guidance for this tribunal. Tribunals are legal bodies that decide a range of issues from residential tenancy disputes to access to income assistance. The courts provide an important safeguard for tribunal decisions. Decisions of tribunals can be appealed or reviewed by judges to make sure that tribunal proceedings are fair and that the law is being interpreted and applied correctly.

The Mental Health Review Board has a serious task: interpreting and applying legislation that deprives individuals of freedom and other constitutional rights. It’s the type of decision that should have careful oversight and thorough legal interpretation to ensure that involuntary patients are getting fair and consistent decisions. But despite hundreds of decisions made every year for the last 28 years (e.g. 811 hearings in the 2019/2020 fiscal year[v]), involuntary patients just aren’t getting their cases into court.

This shows a serious access to justice problem.

While the number of detentions under the Mental Health Act has been steadily increasing (over 20,000 annually in recent years), only 4% of detentions under the Mental Health Act are reviewed by the Board.[vi] In large part, this is because BC is still one of the only provinces in Canada with no independent legal advice service for people when they’re detained under the Mental Health Act. No legal advice service means people face tremendous barriers to learn about and exercise their rights to hearings at the Mental Health Review Board or the courts.

As cases like A.T.’s show, court oversight is necessary to correct errors and make sure involuntary patients are getting fair hearings. It’s hard to know if this type of error was made in other involuntary patients’ hearings because the Board does not publish its decisions. This makes transparency difficult – there’s no way for us to review decisions to see how they’re being made and whether there are inconsistencies between them. If justice means that we get access to fair hearings and consistent decisions when our rights and freedoms are taken away, then we have a long way to go to achieve access to justice for people impacted by the Mental Health Act in BC.

[i] A.T. v. British Columbia (Mental Health Review Board), 2021 BCSC 1680.

[ii] Ibid, para. 17.

[iii] Ibid, para. 20.

[iv] The last judicial review decision published by the BC Supreme Court of a Mental Health Review Board decision was more than 28 years ago: Winder v. Panel, 1993 CanLII 1662 (BCSC).

[v] Mental Health Review Board 2020/2021 Annual Report (September 9, 2020), p. 14.

[vi] Ibid.