What to Know about the Mental Health Review Board’s 2023/24 Annual Report
If you are detained under the Mental Health Act in BC, you have the right to have your detention reviewed by a court or a specialized tribunal that can order your release. That tribunal is called the Mental Health Review Board.
The Mental Health Review Board recently released its 2023/24 Annual Report, which provides us with some insights into how people detained under the Mental Health Act are accessing detention reviews.
How does this Compare to Last Year?
Last year we highlighted that applications and review panel hearings unfortunately went down, but the good news was that fewer patients were conducting hearings without legal representation. Let’s look at how the latest numbers compare.
Widening Gap between Review Panel Applications and Hearings
While the total number of applications for a review panel hearing went up in 2023/24, the number of hearings that took place went down. This continues the downward trend in review panel hearings into its third year. This drop is especially concerning given that detentions under the Mental Health Act have been increasing, which means fewer detentions are subject to independent review.
The widening gap between applications and hearings may be partly due to an increase in the rate of patients withdrawing their application for a hearing. This year, that rate climbed from 35% to 37%. The withdrawal rate is significant because it means 37% of patients who applied for a hearing withdrew their application even though they were still certified as an involuntary patient. In BC, there is no automatic access to hearings to review detention – the onus is on involuntary patients to request a hearing. This creates barriers to challenging detention and opportunities for involuntary patients to be pressured, discouraged, threatened, or induced to withdraw their hearing application.
More Patients Attended Hearings Without Legal Representation
After a steady decline in the number of involuntary patients attending review panel hearings without legal representation, that number increased to 200 in 2023/24. Although it is a patient’s right to decide whether they want legal representation at their hearing, it is important that this be an informed choice, rather than a result of barriers to accessing legal representation. Review panel hearings are complex, adversarial legal proceedings that involve substantive and procedural legal principles. It can be extremely challenging for someone who is not a legal advocate or lawyer to navigate the preparation and conduct of the hearing.
What’s New for 2023/24?
Decrease in Rates of Discharge
Since 2020/21, the proportion of involuntary patients that have been discharged by a review panel remained steady at 16% annually. But this year, that proportion shrunk from 16% to 12%. The rate of discharge is higher when a patient has legal representation, so it is possible that the fact that more patients attended hearings without legal representation has contributed to this change. But a sizeable drop in discharge rates raises questions about accessibility for patients to fully participate in the hearing process, an imbalance of resources between detaining facilities and involuntary patient applicants, or a shift in tribunal member practices or approach.
New Child and Youth Navigator Position
In 2021, the Representative for Children and Youth released Detained: Rights of children and youth under the Mental Health Act. The report documented several concerns about the rights of young people impacted by the Mental Health Act, including that children and youth were accessing review panel hearings at much lower rates than the general population. Following a recommendation from Detained, in May 2023 the Mental Health Review Board hired a specialized navigator to support review panel applicants under 25 years old.
Based on the limited data provided in the annual report, the percentage of review panel applications that made it to hearing for children and youth was the same as that of the general population at 36%. Of the 285 applications received since the Navigator position began on May 1, 2023, 104 resulted in a hearing. This suggests an improvement from the ten-year average of 25% from 2008-2018 as reported in Detained, where 145 of 569 youth applications resulted in a hearing.
However, there are many more questions about how young people are accessing review panels. To name just a few examples, the annual report did not provide any data on whether the children and youth at hearings were detained via sections 20 or 22 of the Mental Health Act, what the application withdrawal rates were for children and youth, how many children and youth had legal representation, and what the discharge rates were from children and youth hearings. Including more data would enable meaningful analysis of how children and youth are accessing review panel hearings.
While the establishment of the new Child and Youth Navigator position holds potential to improve accessibility, the other findings from the 2023/24 annual report show a concerning backslide in access to independent review of Mental Health Act detentions in BC. There remains significant work to do to improve access to justice for involuntary patients.