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'Right thing to do': Alberta introduces Mental Health Act changes to protect patients' rights

The Alberta government plans to amend the Mental Health Act in response to a court decision last year that found existing rules allowed doctors to confine and medicate a Calgary man against his will, in violation of his charter rights.

Moves follow 2019 court ruling that Calgary patient's charter rights were violated

Health Minister Tyler Shandro spoke to reporters Thursday about Bill 17, which would amend the Mental Health Act to comply with a 2019 court ruling. (CBC)

The Alberta government plans to amend the Mental Health Act in response to a court decision last year that found existing rules allowed doctors to confine and medicate a Calgary man against his will, in violation of his charter rights.

Last July, Court of Queen's Bench Justice Kristine Eidsvik ruled six provisions under the Mental Health Act unconstitutional and gave the government 12 months to fix the law.

The case involved a 49-year-old man, given the initials J.H. to protect his privacy, who was detained for more than nine months and medicated against his will at Foothills hospital. 

The government is appealing the Queen's Bench decision but will move ahead with legislative changes anyway under Bill 17, Health Minister Tyler Shandro told a news conference Thursday.

"We're not making these amendments because we're reluctant or being forced to do them," Shandro said. "We're making these amendments because they are the right thing to do."

The bill was introduced in the legislature Thursday afternoon.

The Mental Health Act currently allows for people with serious mental health disorders to be involuntarily detained for treatment, either in a designated facility or in the community.

The amendments propose changing the definition of mental disorder so that an individual with a brain injury— but no mental health disorder— could no longer be detained under the act.

However, an individual with both a brain injury and a mental health disorder could still be detained.

New role for nurse practitioners

Other amendments within Bill 17 are designed to modernize the Mental Health Act and increase efficiency in the health-care system.

Nurse practitioners would be authorized to complete forms and certificates and supervise patients under community treatment orders, "easing the burdens on physicians," Shandro said.

A patient's first assessment could be conducted via videoconferencing — a use of technology the minister said is "long overdue in the year 2020."

Hospitals would have to provide free, timely access to medical records and information about legal counsel and the mental health patient advocate. Patients staying in hospital for more than 30 days would be provided with a treatment plan, including criteria for release.

"These individuals should not be kept in the dark at such a critical time," Shandro said.

In her ruling, Eidsvik wrote that J.H. suffered multiple breaches of his charter rights to life, liberty and security. The judge found he was detained arbitrarily and was not given appropriate notice of the reason for his detention or his right to legal counsel.

Hospitalized after hit-and-run

J.H. was the victim of a 2014 hit-and-run and was hospitalized for injuries to his leg and back. While in hospital, he became homeless and had trouble accessing social assistance once he was discharged.

He later returned to hospital to get surgery for complications from his injuries. But when it came time to discharge him, he was instead certified and held under the Mental Health Act.

After a Calgary man was held and medicated against his will at Foothills hospital, Justice Kristine Eidsvik ordered an overhaul of Alberta's Mental Health Act. (Alberta Health Services)

Eidsvik found that J.H. was then given psychiatric medications, which were not medically required, and was not told about his right to free legal advice within a reasonable time.

The Mental Health Act's criteria for detaining people is too broad, said Eidsvik, who recommended new safeguards be created to protect patients.

In its notice of appeal, the government said the issue was whether Eidsvik "erred in law and/or fact in concluding that certain portions of the Mental Health Act are unconstitutional."

The appeal was heard in February. The appeal court has not yet delivered its decision but the government is moving ahead with legislative changes before the deadline, which has since been moved to Sept. 30, Shandro said.

"These proposed amendments are not only necessary to address the 2019 court decision," he said. "They're necessary to safeguard the rights of patients and make our mental health system more responsive and more accessible.

"Patient care would be more timely and patient-focused and enable families to support and care for their loved ones in a more significant way. This is the right thing to do for patients and their families.

"So regardless of what the disposition of the court would be, and whatever the appeal decision ends up being, generally we are committed to these principles that are in the act."

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