Introduction to British Columbia's Mental Health Laws

The Mental Health Act (MHA) describes the procedures for voluntary/involuntary admission and treatment of individuals with psychiatric disorders in British Columbia. The MHA provides the legal authority to admit and detain patients with psychiatric illnesses in a designated facility if they meet certain specified criteria. It also provides patient protections to ensure the law is applied in an appropriately.

British Columbia's Mental Health Act (MHA) became law in 1964, there have been several legislative updates since then. The purpose of the MHA is to guide the treatment of individuals with mentally disorders who need protection and care. The Mental Health Act also dictates how treatment and care can be provided if an individual is not willing to accept it.

Police officers have powers under Section 28 of the MHA to take an individual into custody and to transport them to a designated facility for assessment by a physician who will determine the need for further treatment. The criteria used by the police are:

  1. If the person is acting in a manner likely to endanger that person's own safety or the safety of others; and
  2. If the person is apparently a person with a mental disorder.

In order for an individual to be admitted involuntarily, all of the following four criteria must be met; a physician must be of the opinion that an individual:

  1. Is suffering from an apparent mental disorder that seriously impairs their ability to react appropriately to his or her environment or to associate with others;
  2. Requires psychiatric treatment in or through a designated facility
  3. Requires care, supervision, and control in (or through) a designated facility to prevent the person's substantial mental or physical deterioration, or for the person's own protection, or for the protection of others; and
  4. Is not suitable as a voluntary patient

If all of the above criteria is met, a Form 4 must be completed by a physician licensed to practice medicine in British Columbia. A resident physician is not legally allowed to complete a Form 4.

Continuation of Involuntary Admission and Applicable Forms

Action Form to Fill Length of Involuntary Admission Form to Give to Patient
1st Medical Certificate Form 4 48 hours Form 13
2nd Medical Certificate Form 4 1 calendar month (minus 1 day) Form 13
1st Renewal Form 6 1 calendar month (minus 1 day) Form 13
2nd Renewal Form 6 3 calendar months (minus 1 day) Form 13
3rd Renewal and Additional Renewals Form 6 6 calendar months (minus 1 day) Form 13

On admission with a Form 4, and also every time a Form 6 (Medical Report on Examination of Involuntary Patient [Renewal Certificate]) is completed, a person must receive information about their rights using Form 13 (Notification to Involuntary Patients of Rights Under the Mental Health Act). A patient's rights, as described in Form 13 must be communicated to the patient upon all involuntary admissions and upon all renewals of involuntary status.

The patient should also sign a Form 13. If the patient refuses, the physician should make a note of this on a copy of the form. Patients must be offered a copy of Form 13 and the original is placed in the patient's chart.

For patients under the age of 16 who have been admitted by their parent or guardian, a Form 14 (Notification to Patient Under Age 16, Admitted by Parent or Guardian, or Rights under the Mental Health Act) is given.

The Physician Must Assess if the Patient Understands Their Rights

The physician is responsible for assessing whether a patient understands their rights and provide chances for the patient to ask questions. If the patient does not appear to understand their rights, this must be documented in their chart. The physician must also re-inform the patient of their rights within a reasonable amount of time and once again document if the patient does not appear to understand. This process must continue to be repeated at reasonable intervals until it is clear that the patient understands their rights.

Once an individual has been admitted to hospital involuntarily, the MHA allows for compulsory psychiatric treatment (i.e. - without patient consent). This law applies only to psychiatric treatment. Medical and non-psychiatric issues cannot be treated against the will of an involuntary patient. If a medical or non-psychiatric treatment is required, it can only be provided on a voluntary basis; otherwise, it must rely on the Health Care Consent and Care Facility Admission Act.

Before any psychiatric medication can be administered against an individual's will or without their consent (unless it is an emergency situation), a Form 5 (Consent for Treatment [Involuntary Patient]) must be completed by the Director or designate. If there is a significant change in a treatment, a new Form 5 must be completed.

Voluntary Patients

For voluntary persons admitted under the MHA, their consent is always required before any treatment can be provided!

In British Columbia, consent for health care is governed under the Health Care (Consent) and Care Facility (Admission) Act, or HCCCFAA. The HCCCFAA outlines what a patient’s rights are, the elements of informed content, when consent is required, and what to do if a patient is found to be incapable. Similar to other jurisdictions, there are general principles that guide consent:

  1. Adults are presumed to be capable of giving consent unless proven otherwise
  2. Adults can only be given health care with their prior given consent
  3. Adult must be approached first for a decision about health care

In British Columbia, there are several situations where consent is not required. This is different than other jurisdictions in Canada (such as Ontario):

  1. When urgent or emergency health care is required, adult is incapable, and there is no committee, representative, Advance Directive or TSDM available;
  2. Involuntary psychiatric treatment is needed under the Mental Health Act
  3. For preliminary examinations such as triage or assessment

In British Columbia, in deciding whether an adult is incapable of making a health care decision (thus, whether a substitute decision maker is required), the health care provider must determine:

  1. Whether the adult demonstrates an understanding of the information provided about the health care
  2. That this information applies to the adult’s situation

A substitute decision-maker can be appointed in one of the following ways:

  1. A capable adult can name the substitute decision-maker(s) in an Advance Planning Document (e.g. in a Enduring Power of Attorney, a Representative Agreement); or
  2. An incapable adult may have a guardian (called a Committee of the Estate or Committee of Person, or both) appointed by the courts (or by statute) to make decisions.
  3. The PGT may be appointed to make decisions by court order.

In the following order (highest to lowest):

  1. Committee of the Person (guardian “speaking” for the adult)
  2. Representation Agreement (adult “speaking” through chosen representatives)
  3. Advance Directive (adult “speaking” through a pre-defined document)
  4. Temporary Substitute Decision Maker (TSDM) hierarchy is as follows:
    • Spouse
    • Child
    • Parent
    • Brother or sister
    • Grandparent
    • Grandchild
    • Anyone else related by birth or adoption to the adult
    • A close friend of the adult
    • A person immediately related to the adult by marriage

Substituted decision making does not apply to certain decisions such as those related to:

  • Psychiatric treatment of involuntary patients under the Mental Health Act
  • Non-therapeutic sterilization
  • Certain communicable diseases as set out in the law

A committee, representative, or temporary SDM may be limited in their decisions depending on the scope of their authority under any applicable legislation, court order, or authorizing document.

In 2011, advance directives became a new legal option for capable adults in British Columbia. An advance directive is a written instruction that gives or refuses consent to health care treatment at some point in the future, in the event the adult is not capable of giving or refusing consent to treatment when it is needed. Advance care planning is the process of thinking about, and writing down, your wishes or instructions for future health care treatment in the event you become incapable of deciding for yourself. When these discussions are written down and appropriately witnessed, it becomes an Advanced Directive (AD).