Alta Mental Health Act found unconstitutional after man held for nine months
Red Deer Advocate - 7/20/2019
CALGARY — An Alberta judge has found parts of the province's Mental Health Act unconstitutional after it was used to hold a man against his will for nine months and treat him with psychiatric drugs.
"(The man) suffered multiple breaches of his fundamental rights to life, liberty and security," wrote Queen's Bench Justice Kristine Eidsvik in a ruling released Wednesday.
Eidsvik was addressing issues left over from a 2015 ruling, which originally allowed the man, a member of a B-C First Nation, to leave the Calgary hospital in which he had been detained. The issues she ruled on this week involved constitutional matters.
According to Eidsvik's written decision, the man was originally brought to Calgary Foothills hospital in 2014 with injuries suffered in a hit-and-run. He was treated and released, but during his stay the then-49-year-old lost his apartment and was homeless upon his release.
He wound up living in a home for substance abusers and was subsequently re-admitted to hospital for further treatment for his previous injuries, as well as other ailments. After 20 days, the man improved and asked to be released.
Instead, he was detained under the Mental Health Act. Doctors wrote he was "disoriented, lacks insight into seriousness of his medical condition … (has) unsteady gait."
"There is no evidence about whether (the man's) competency was evaluated at this time," Eidsvik wrote.
Eidsvik was scathing in her description of the man's treatment.
"There is no evidence that verbal, let alone written notice was given to (the man) or his 'nearest relative'," she wrote.
"There is no evidence that (the man) was advised by anyone of his right to obtain legal counsel who could help him challenge his certificates, nor that he was aware one way or another at this time that he could seek help from a Patient Advocate."
She noted that the man filed affidavits stating that during the time he was held, the hospital had evidence to suggest he was mentally fit.
"The hospital has consistently indicated that I have been able to communicate my needs, my speech has been clear and I have been alert," she quoted in her ruling.
"They have consistently reported that I am independent and there was 'no neurological sensory deficit' observed or reported."
Meanwhile, treatment was imposed.
"(The man) was treated with psychiatric medications which were not medically required without his consent," Eidsvik wrote. "(He) failed to have a procedurally fair hearing because he did not know the case he had to meet as a result of the lack of information provided to him, including his reasons for detention and his medical records."
Eidsvik found six breaches of the Charter of Rights and Freedoms in the Mental Health Act.
She has given the provincial government a year to fix them, or they will be struck down.