What to Know about the Mental Health Review Board’s Latest Annual Report (2022/2023)
If you are detained in Canada, you have the right to have your detention reviewed by an independent court or tribunal that can order your release. It’s a vital part of our democracy – if the state takes away your freedom, there must be independent oversight of the state’s power. In BC if you have been detained under the Mental Health Act, that detention review is conducted by the Mental Health Review Board.
The Mental Health Review Board recently released its 2022/23 Annual Report, which gives us insights into how people detained under the Mental Health Act are getting access to detention review.
Here are 3 important things to know about the 2022/23 Annual Report.
1. Applications and review panel hearings went down
Only a small fraction of mental health detentions ever get independent review. Unlike other places in Canada that have automatic hearings built in to review mental health detention at specific intervals, the BC Mental Health Act has no automatic hearings. That means we put the onus on patients to apply for a review panel hearing.
The results are stark. While detentions under the Mental Health Act have been increasing dramatically for many years, access to review panel hearings has not kept pace. This means a decreasing proportion of the detained population is getting access to review panel hearings. The Ministry of Health reports there are now over 28,000 detentions under the Mental Health Act in BC annually. Yet with review panel hearing numbers hovering around the 800s and 900s every year, that means approximately 3% of detentions are subject to review.
After the Ombudsperson’s investigation found widespread non-compliance with the Mental Health Act, there have been significant efforts made to improve education and compliance among detaining facilities and mental health teams. This should mean that more detaining facility staff are complying with the legal requirements to inform patients of their rights and facilitate access to review panel hearings.
Yet the 2022/23 Annual Report shows that the number of applications for review panel hearings dropped down from 2628 in 2021/22 to 2537 in 2022/23. Similarly, the number of hearings that took place dropped from 990 in 2021/22 to 946 in 2022/23. At a time when detention numbers have been steadily rising and there has been such a concerted focus on improving compliance, we should be seeing substantially increasing numbers on access to review panel hearings, not a decrease.
2. Withdrawal rate remains stagnant
Over the last five years, nearly two-thirds of applications have not proceeded to hearing, and the 2022/23 year continued that trend. One explanation for this extraordinarily high rate could be that involuntary patients may be decertified (discharged from involuntary status) before their hearing takes place. But the data from the Annual Report shows that’s not the full picture. For applications received in 2022/23, 516 patients were decertified before the hearing, but 899 applications were withdrawn by a patient who was still certified.
Why would someone detained under the Mental Health Act make a request for review panel hearing and then withdraw it even though they are still certified? There may be a variety of reasons, but because we put the onus on involuntary patients to request hearings rather than building them into our Mental Health Act automatically, this system opens up the potential for people to try to persuade involuntary patients not to request hearings or to withdraw hearing requests.
Research has documented that staff at detaining facilities have tried to influence involuntary patients to do just that – for example, by offering an inducement (“I’ll give you grounds passes to go outside for fresh air if you cancel your hearing”), making a threat (“If you don’t cancel your hearing I’ll have to keep you detained longer”), or exerting pressure (“You’re wasting everyone’s time and taxpayer money going to that hearing”).
3. Fewer patients are conducting hearings without legal representation
Review panel hearings are adversarial legal proceedings that involve complex legal principles, conflicting fact and opinion evidence, and high potential for distress, harm, and trauma. As an involuntary patient without legal representation, you generally go into your hearing facing your treating psychiatrist, who will be presenting the argument for your continued detention, and a panel of three tribunal members who will be deciding your case. You have to request access to your own medical records (some of which may be redacted from you), organize your own witnesses to attend, and prepare your case without necessarily having access to a cell phone or computer. At the hearing you will be questioned by your treating psychiatrist and the tribunal members, you will have to cross-examine your treating psychiatrist and other witnesses like police or social workers, you will be responsible for objecting to any procedural or evidentiary issues, and you will have to make legal submissions on whether the statutory criteria of the Mental Health Act continue to describe you. Although everyone is entitled to choose not to have a legal representative, no one should be required to go through this legal proceeding without legal representation just because they couldn’t access a lawyer or legal advocate.
Involuntary patients have faced significant barriers to accessing a lawyer or legal advocate to represent them at review panel hearings. After concerted advocacy from community organizations to improve legal aid funding, the number of involuntary patients who conduct review panel hearings without legal representation is slowly going down. The Annual Report shows that the number trended down from 197 in 2021/22 to 176 in 2022/23 this fiscal year.
Although it's good news that fewer involuntary patients are unrepresented at their hearings, the decrease in review panel applications and hearings and the persistently high rate at which involuntary patients withdraw their requests before they get access to a hearing show we still have significant work to do in improving access to justice for involuntary patients.