BC expands the types of health practitioners who can detain under the Mental Health Act
In February changes quietly showed up in the Mental Health Act and Form 4 – the form used to involuntarily admit and detain someone under the Act. Until recently, a physician was required to do an examination to consider whether an individual meets the legal criteria for involuntary admission and complete the Form 4 to record the reasons for the decision. The changes expand the type of health care providers who can complete this examination by giving authority to nurse practitioners as well. Completing the new Form 4.1 with a physician or nurse practitioner’s examination means a person can be detained for 48 hours and within that time a Form 4.2 must be completed with a physician’s examination to detain someone for the first one month period.
In addition, Forms 4.1 and 4.2 will now require extra signatures from the detaining facility. Form 4 has only required the signature from the physician who completed the examination and admitted the involuntary patient, but Form 4.1 and Form 4.2 split up the role of the physician or nurse practitioner who did the examination and some other staff member at the facility who signs to admit the involuntary patient. There was no guidance or definition added to the Mental Health Act about which staff members can sign to detain the involuntary patient – it appears it could be anyone from a nurse to a social worker to an occupational therapist.
On February 23, 2023 the government made an announcement characterizing the changes as a move to reduce emergency room wait times and relieve pressure on emergency department physicians. There is no doubt that BC’s health care system is under immense strain due to staffing shortages and responding to two public health crises occurring simultaneously. Long wait times in emergency rooms are a hardship that people in mental health crisis face. But the actual origin of the changes is far murkier.
The idea behind these changes to the Mental Health Act dates back to 2011 and a previous government.
The Minister of Health at the time said the Nurse Practitioners Statutes Amendment Act of 2011 was intended to “provide British Columbians with more options when seeking medical opinions or accessing the various government programs” and amended many statutes to permit nurse practitioners an expanded range of practice. Of course, while many of the expansions enabled people to make choices in seeking medical care or accessing programs, the power to take someone’s health care consent choices away through Mental Health Act detention stands in sharp contrast. There has been no explanation provided for the 12-year delay or what motivated bringing the changes into force now.
It's hard to square the origin of these changes in 2011 with the government’s explanation that this may reduce emergency room wait times in 2023.
How many emergency departments have nurse practitioners on staff? And the decision to split up the signatures of the physician or nurse practitioner who did the examination and the staff member who signs for involuntary admission will create new demands on health care providers’ times. If the change meant that someone who was in a position to oversee the work of the physician or nurse practitioner reviewed the examination and could reject inappropriate examinations or conclusions, this might have been an effective accountability mechanism. But since the change did not include any criteria or definition of which staff member could sign on behalf of the facility to complete the involuntary admission, this means the involuntary admission process will be more time consuming for health care providers without adding effective safeguards for patients.
Expanding who can detain a person under the Act does not expand mental health services.
BC has already seen dramatic increases in the rates of detention under the Mental Health Act in recent years, so the availability of practitioners to detain a person does not appear to be an urgent issue for people in need of mental health supports. BC has the highest rate of hospitalization due to mental illness and substance use in Canada, and detentions under the Act grew by 71% between 2005/06 and 2016/17.
An expansion of the types of health practitioners who can detain under the Mental Health Act without introducing any additional legislative safeguards just seems like an entrenchment of a pattern BC has been in for years. It appears that detention and involuntary treatment is being used in BC as a crisis-based solution to attempt to address unmet needs created by inadequate voluntary services. BC’s existing detention and involuntary treatment system has serious, systemic problems. There have been multiple reports documenting widespread non-compliance with legal requirements that are intended to provide procedural safeguards when powers are exercised under the Act, resulting in human rights violations and a glaring absence of accountability mechanisms.
BC’s mental health and substance use health system has long been plagued by a lack of long-term planning and comprehensive strategy, plugged with patchwork solutions that don’t get at the problems. If these new powers are an effort to address staffing shortages in BC’s emergency rooms, that does not eliminate the need to address weaknesses in legislative safeguards. If anything, expanding the powers under the Act should have been an opportunity to strengthen them. When the law grants extraordinary power over a person’s human rights, it is necessary to balance that power with equally strong transparency, oversight, and accountability mechanisms to monitor how the power is being used and guard against misuses of power.
There is an immediate need to address urgent issues in BC’s mental health and substance use health system, but we can’t lose sight of the necessity to also address entrenched issues that require longer term solutions. We need a comprehensive, long-term framework for mental health and substance use services in BC. To read more about how accountability and oversight mechanisms strengthen mental health and substance use health services, read A Path Forward: Human rights-based guiding principles for BC’s mental health law and services.