July 18, 2019 9:16 pm
Updated: July 18, 2019 11:00 pm

Sections of Alberta’s Mental Health Act deemed unconstitutional, court rules

WATCH: A court has ruled sections of Alberta's Mental Health Act are unconstitutional after reviewing the case of a Calgary man who was confined in hospital and medicated without his consent. Adam MacVicar reports.

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A court has ruled six sections of Alberta’s Mental Health Act are unconstitutional after reviewing the case of a Calgary man who was held in hospital for nine months and treated with medications without his consent.

The decision was issued on Wednesday by Court of Queen’s Bench Justice Kristine Eidsvik.

In her ruling, Eidsvik gave the Alberta government 12 months to rewrite the legislation.

The case centres around a 49-year-old Indigenous Calgary man who has been identified as JH to protect his identity.

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According to the ruling, JH was detained at the Foothills Medical Centre in Calgary under the Mental Health Act in September 2014, after being admitted for another medical issue.

In 2014, JH was the victim of a hit and run, and was hospitalized for injuries to his back and leg at the Peter Lougheed Hospital for several months; during that time, he lost his apartment and was homeless when he was released.

JH was brought to Foothills by the Downtown Outreach Additions Partnership team for complications from his injuries, but after recovering for 20 days and showing signs of improvement, he wanted to be released.

But on Sept. 25, 2014, JH was held in hospital under the Mental Health Act, which allows doctors to detain patients they believe are suffering from a mental illness under certain circumstances.

Despite JH’s lack of history with mental illness, doctors said he was “disoriented, lacks insight into seriousness of his medical condition, states wants to leave hospital,” with an “unsteady gait.”

According to the ruling, JH was treated with psychiatric medications, which were not medically required, without his consent.

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JH’s original admission certificate allowed him to be held at the hospital for one month, but he wasn’t released until May 2015, following an appeal in court.

“JH suffered multiple breaches of his fundamental rights to life liberty and security protected by Section 7 of the Charter, was arbitrarily detained in breach of Section 9, and was not given appropriate notice of the reason for his detention or his right to legal counsel,” Eidsvik wrote in her ruling.

According to Eidsvik’s ruling, there were multiple issues with JH’s detainment, including “vague and incomplete” admission certificates, and the fact JH nor his family received written notice about why he was being held in hospital.

In her ruling, Eidsvik recommended the act’s criteria for detaining people be revised, and that the province’s healthcare system should add new safeguards to improve patients’ rights.

JH’s lawyer, Salimah Janmohamed, hopes the ruling will bring more oversight to the healthcare system.

“We need to bring the Mental Health Act in compliance with the Charter. We have a system that is operating without oversight, at least in Alberta,” Janmohamed said.

“They need to have somebody who administers and ensures that if their certification is not proper, or does not comply with the act, that they need to be told about it rather than it just operate on its own.”

“(Doctors) don’t have the legal expertise and they don’t make determinations with how the Mental Health Act impacts the Charter and violates the rights and liberties of an individual under the Charter,” Janmohamed said.

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According to Families Supporting Adults with Mental Illness Alberta (FAMI) – a support group that advocates for improved treatment for those living with serious mental illness – the legislation is flawed, and the group is cautiously optimistic about potential changes to the law.

“There’s a lot wrong with the Mental Health Act, but simply declaring the act unconstitutional on the basis of rights of individuals is a little bit simplistic for us,”  FAMI’s founder Averie McNary, said.

“That has always been an issue [with the] Mental Health Act … how do we protect everybody’s rights, no matter how well or sick, against arbitrary detention, and how do we treat them fairly?”

A spokesperson with Alberta Health Services said they are reviewing the ruling before commenting, but are taking steps to ensure medical staff are aware of their responsibilities when it comes to admitting patients under the Mental Health Act.

“A checklist for physicians and nurses has been developed to outline the steps required when informing a patient about certification, and ensuring the patient and their family members are aware of their rights,” AHS spokesperson Sabrina Atwal said in a statement.

According to AHS, brochures are also being handed out to patients so they’re able to understand the role of a mental health patient advocate, and access that support if they need it.

But, the health organization said it’s leaving any implications with changing the Mental Health Act up to the provincial government.

In a statement to Global News, a spokesperson for Alberta’s Ministry of Justice said the ministry and the Solicitor General is reviewing the decision.

© 2019 Global News, a division of Corus Entertainment Inc.

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