Commonly Asked Questions
- What is a review panel?
- What is a designated facility?
- How does a patient apply for a review panel hearing?
- Where are the hearings held?
- Where can I get more information on the Mental Health Act or information to help prepare for a hearing?
- What are the Rules of Practice and Procedure?
- Where can I get legal advice to help me with my case?
- What if I need a translator at the review panel hearing?
- What happens if someone has important information he/she wishes to present at the review panel hearing?
- How may family members participate in a hearing as a witness?
- Are family members given notice of a review panel hearing?
- Can family members attend a hearing to observe?
- Who may apply for a review panel hearing?
- Can children apply for a review panel hearing?
- How often can an involuntary patient apply for a review panel hearing?
- How long does it take to get a review panel hearing and decision after a patient applies for a hearing and who gets a copy of the decision?
- How is evidence for the hospital presented at the review panel hearing?
- How is evidence for the patient presented at the review panel hearing?
- Does a patient have the right to see his/her medical file?
- What evidence is presented?
- What are the criteria applied by the review panel at a hearing?
- To be involuntarily committed/detained, does the person have to be in danger of causing bodily harm to him/herself or others?
- What are the limits of what a review panel can decide?
- Can review panel decisions be appealed to the courts?
- Are there any advantages to a review panel compared to a court?
- When can a physician recertify a patient who a review panel has found should not continue to be detained?
- Why is the Mental Health Act necessary?
A review panel usually consists of three members of the Mental Health Review Board who decide after a hearing whether a patient should be discharged from involuntary status (Mental Health Act, sections 24.1, 25(2), 25(4.1)). The Mental Health Act permits panels to be comprised of more than three members. A review panel is comprised of a medical practitioner, lawyer, and a community member who is neither a medical practitioner nor a lawyer (section 24.1(3)). Normally, the lawyer member is designated to chair the review panel hearing. The legal members on review panels are knowledgeable about the review panel process and ensure that the proceedings are conducted in accordance with the Mental Health Act and the principles of natural justice. The medical practitioner on a review panel is not required to be a psychiatrist (although most are), but experience in mental health is a central criteria for appointment to the Review Board. Along with other panel members, the medical practitioner member makes a decision based on the evidence from the hearing and does not conduct a separate interview or examination of the patient prior to the hearing.
The term "designated facility" is defined as a designated inpatient "Provincial mental health facility, psychiatric unit, or observation unit". Here is an updated list (PDF, 88KB) of designated facilities which admit and treat involuntary patients.
See Review Process.
Ordinarily, the hearing will be held in a conference room at the designated facility where the patient is located. When a patient is on extended leave, the hearing is usually scheduled in the community in which the patient resides. Occasionally, the hearing is conducted by videoconference if panel members are not available in the community where the hearing would be held. See also Rule 11.0 of Rules of Practice and Procedure.
Where can I get more information on the Mental Health Act or information to help prepare for a hearing?
To learn more about the B.C. Mental Health Act check the provincial Guide to the Mental Health Act (2005) (PDF, 5.1MB). See Related Links.
General information to help prepare for a hearing may be found in the videos entitled "How to Prepare: First Steps" and "In-Person Hearings" at A Guide to Administrative Law in British Columbia. See Review Process.
Patients wishing to obtain legal advice or representation are responsible for making their own arrangements. Hospitals may have information about lawyers and advocates. The Mental Health Law Program (M.H.L.P.) of the Community Legal Assistance Society (CLAS) provides patients with information and assistance regarding review panels, and provides some advocates to represent patients at review panel hearing throughout the Province. Many patients who are represented at review panel hearings are represented by advocates from the CLAS Mental Health Law Program. CLAS may be contacted at (604) 685-3425 or toll free at 1-888-685-6222. Patients may also contact the local offices of the Legal Services Society.
The Rules of Practice and Procedure came into effect on April 2, 2012. Section 11 of the Administrative Tribunals Act allows the Mental Health Review Board to control its own processes and to make rules respecting practice and procedure “to facility the just and timely resolution of the matters before it”. Rules are binding - that is, the Board must follow them; the exception is where a Rule conflicts with any statute or regulation, in which case the statute or regulation prevails.
Patients who do not already have legal representation by an advocate from the Community Legal Assistance Society (CLAS) may wish to contact the Mental Health Law Program (M.H.L.P.) at Community Legal Assistance Society CLAS at 604-685-3425 or toll free at 1-888-685-6222. To learn more about the BC Mental Health Act check the provincial Guide to the Mental Health Act (2005) (PDF, 5.1MB) found at the Ministry of Health website.
Patients can also obtain legal advice from a lawyer in private practice. Names of lawyers can be obtained from the Lawyer Referral Service at 604-687-3221 or 1-800-663-1919.
A patient who wants a translator at his/her review panel hearing should tell the Mental Health Review Board in advance of the hearing so that it can arrange for a qualified translator to attend the hearing.
What happens if someone has important information he/she wishes to present at the review panel hearing?
A person who wishes to provide information in support of detention of the patient should contact the hospital to provide the information to the attending physician. A person with information in support of the patient's discharge should contact the patient or the patient's lawyer or advocate. The person providing the information may be asked to attend the review panel hearing or make a written submission to provide at the review panel hearing. All such information presented at a hearing will be shared with the hospital representative and the patient.
A family member may present evidence as a witness at a hearing for continued hospitalization or discharge. Family members who wish to provide information in support of further detention of the patient should contact the attending physician. Those with information in support of the patient's discharge should contact the patient or the patient's lawyer or advocate. If neither party wishes to call the family member as a witness, section 25(2.4) of the Mental Health Act states that any person who satisfies the review panel that the person has a material interest in, or knowledge of, matters relevant to the hearing may give evidence or make submissions at the hearing. In exceptional cases, the review panel may compel witnesses to give evidence at a hearing and order disclosure of documents under section 24.3. Failure to comply with the review panel's order may result in a court order directing compliance (Mental Health Act, sections 24.2, 24.3 and Administrative Tribunals Act, section 49).
Evidence presented by family members at a review panel hearing must be relevant to the hearing (Mental Health Act, section 24.2 and Administrative Tribunals Act, section 40(1)). The evidence may be submitted in writing or presented orally at the hearing (in person, by phone/teleconference, or a combination of the two). If the family member submits a written statement to the hearing panel, the patient's advocate may arrange to have him/her available to answer questions at the hearing by phone/teleconference. Oral evidence is preferred because it allows participants and review panel members to ask questions that clarify the evidence and provides the review panel with a better opportunity to assess the persuasiveness of the evidence. Unless the patient agrees or the review panel orders otherwise, family members (and other witnesses) must remain outside of the hearing room except when giving evidence or making submissions to the review panel.
Occasionally, family members wishing to present evidence in support of continued involuntary detention have asked the review panel to consider their evidence in confidence. Although the Mental Health Act (section 25(2.6)) allows the chair of the review panel to exclude the patient from all or part of the hearing if the chair is satisfied it is in the best interests of the patient, panel chairs have rarely excluded patients from a hearing, preferring instead to follow administrative law principles of fairness and hear evidence from family members in the presence of the patient. Experience has shown that it has often been possible to include evidence from family members in the hospital's presentation in such a way as to minimize or avoid negative repercussions.
When a patient applies for a review panel hearing, the designated facility must immediately notify a near relative by sending them a copy of Form 18 (PDF, 49KB) (Mental Health Act, section 34.2(2)(b)). This is to allow someone who is interested in the patient's welfare to present evidence for continued hospitalization or discharge. The Mental Health Act (section 1) defines near relative as a "grandfather, grandmother, father, mother, son, daughter, husband, wife, brother, sister, half brother or half sister, friend caregiver or companion designated by the patient and includes the legal guardian or a minor and a committee having custody of the person or patient under the Patients Property Act. The patient nominates the near relative to be notified using Form 15: Nomination of Near Relative (PDF, 48KB). If the patient is incapable of making a selection, the director or a designate must make the selection. While not mentioned under the Act, a common law spouse or same sex partner is considered to be a near relative.
If the review panel discharges the patient from involuntary status (either inpatient or on extended leave), the hospital must notify the near relative using Form 17: Notification to Near Relative (Discharge of Involuntary Patient) (PDF, 48KB) (section 34.2(2)(a)).
Review panel hearings are held in private to protect the privacy of the patients (Mental Health Act, section 25(2.5)). Family members wishing to observe the proceedings without otherwise participating in them may normally do so only with the consent of the patient and the review panel.
See Request a Review.
Anyone under the age of 16 who has been admitted to hospital under the Mental Health Act as a voluntary patient on the request of his/her parent or guardian can apply for a review panel hearing (section 21(1)). Children and youth who are involuntary patients can also apply for a review panel hearing.
If a patient is admitted through a physician's medical certificate (Form 4 (PDF, 42KB)), the certificate provides legal authority for an involuntary admission for a 48-hour period. A second medical certificate by a different physician must be completed within 48 hours of admission. Otherwise the patient is discharged or admitted as a voluntary patient (Mental Health Act, sections 22(2), 22(5)). Once the second medical certificate is completed the person may be admitted as an involuntary patient for up to a month from the day of initial admission (section 23). To extend involuntary hospitalization beyond the first month, a physician must examine the person and complete a renewal certificate before each certificate period expires. If an involuntary patient requires continued hospitalization beyond the first one month period, the length of the next period is one month. If hospitalization is required beyond this second one month period, the length of the next period is three months. Beyond this three month period all successive periods of involuntary hospitalizations are six months in length (section 24).
Generally, a patient is entitled to apply for a review panel hearing after the second medical certificate is completed and following each renewal certificate (section 25(1); Regulation, section 6(2); see Form 6: Medical Report on Examination of Involuntary Patient (Renewal Certificate) (PDF, 50KB)). During six-month renewal periods, when it is in the best interests of the patient or where new information becomes available, the Board chair may shorten the time between applications (section 25(3)); a patient interested in this should submit a request or have his/her advocate submit a request to the chair of the Mental Health Review Board.
How long does it take to get a review panel hearing and decision after a patient applies for a hearing and who gets a copy of the decision?
- during the first period (one month) of detention, within 14 days after a completed Form 7: Application for Review Panel Hearing (PDF, 36KB) is delivered to the Review Board office;
- during the second period (one further month) of detention, within 14 days after a completed Form 7 is delivered to the Review Board office;
- during the third period (three further months) of detention, within 28 days after a completed Form 7 is delivered to the Review Board office; and
- during the fourth and subsequent periods (six further months) of detention, within 28 days after a completed Form 7 is delivered to the Review Board office, provided that 90 days have elapsed since the conclusion of any previous hearing.
Section 25(3) of the Mental Health Act gives the Board chair authority to shorten the time period during the fourth or subsequent periods above. This may occur if the chair considers it to be in the best interests of the patient or where new information about the patient's detention becomes available.
Following a hearing, the decision is usually immediate. However, the review panel may take up to 48 hours to reach a decision. Section 25(2.8) of the Mental Health Act requires that within 48 hours after the hearing a review panel must decide whether or not the patient's detention should continue. Reasons must be provided within 14 days from the decision; a review panel is usually able to come to a decision immediately following the hearing. Section 25(2.9) of the Mental Health Act requires that after the decision has been made, the review panel must, without delay, deliver a copy of its decision to the director and to the patient or the patient's lawyer or advocate. Where the decision is to discharge the patient, the director must do so. When a patient is discharged, the facility must send the patient's near relative a completed Form 17: Notification to Near Relative (Discharge of Involuntary Patient) (PDF, 48KB) (section 34.2(2)(a)). (The patient nominates the near relative to be notified using Form 15: Nomination of Near Relative (PDF, 48KB). If the patient is incapable of making a selection, the director or a designate must make the selection.)
The attending physician, the director, or director's designate presents the evidence for the facility in support of continued detention. The facility's representative does not require legal counsel.
If the patient desires, he/she may be represented at the hearing by a lawyer or advocate who is not a lawyer (Mental Health Act, section 24.2 and Administrative Tribunals Act, section 32). An advocate can be a friend or anyone chosen by the patient to speak on his/her behalf. The lawyer or advocate makes submissions in favour of discharge of the patient.
Evidence is usually given by the patient himself/herself but there can be witnesses speaking in his/her favour. Witnesses for the patient can give evidence in person, by phone/teleconference, or in writing to support the patient's argument for discharge. If a witness submits a letter, the patient's advocate can arrange to have the witness available to answer questions by phone/teleconference at the hearing. Oral evidence is preferred because it allows participants and review panel members to ask questions to clarify the evidence, and provides the panel with a better opportunity to assess the weight/persuasiveness of the evidence. Evidence presented at a review panel hearing must be relevant to the hearing, and the panel may exclude anything that is unduly repetitive (Mental Health Act, section 24.2 and Administrative Tribunals Act, sections 40(1) and 40(2)). Family members and others may be witnesses for either the hospital or the patient, or with the permission of the review panel, may otherwise give evidence or make submissions at the hearing (Mental Health Act, section 25(2.4)). Unless the patient agrees or the review panel orders otherwise, witnesses should remain outside of the hearing room to ensure their evidence is untainted by the patient's evidence and the evidence of other witnesses.
- to do so could reasonably be expected to result in immediate and grave harm to the (patient's) safety or medical or physical health; or
- to do so could reasonably be expected to threaten anyone else's safety or mental or physical health or interfere with public safety.
The following documents are usually presented as evidence by the detaining facility at the hearing:
- Admission/renewal certificates
- Admission note by the physician (or discharge note in the case of patients on extended leave)
- Specific notes made for presentation to the review panel by the attending physician, including a note summarizing the patient's history of hospitalization, successful and unsuccessful treatment, and, if applicable, compliance with treatment plans in the community. In addition, the note should make an assessment of whether the patient is likely to comply with the treatment plan in the community.
- Current and relevant psychology, social work and nursing reports, doctors' progress notes/orders and psychiatric assessments from the file, including patient's response to medication.
The patient may also provide other evidence including calling witnesses to give evidence that support his/her argument in favour of discharge. The evidence may be submitted in writing or presented orally at the hearing (in person, by phone/teleconference, or a combination of the two).
Review panel decisions are based on evidence presented at the hearing only. However, section 24.3 of the Mental Health Act gives the review panel power to compel witnesses and order production of a document or other item in a person's possession or control that is admissible and relevant to an issue in an application.
Section 22 of the Mental Health Act provides for the admission of a person to a designated facility as an involuntary patient. In considering whether the patient meets the criteria for continued hospitalization, the review panel must consider the patient's current functioning status as well as history of hospitalization and treatment compliance. All reasonably available evidence must be considered. The review panel must consider the likelihood that the patient will comply with a treatment plan that the physician considers likely to prevent involuntary hospitalization (section 25(2.1)). The evidence is then used to decide if the section 22 criteria is met (section 25(2)).
To reach a decision on an application regarding an involuntary patient, the review panel applies the following criteria:
- is the patient suffering from a disorder of the mind that seriously impairs the person's ability to react appropriately to his/her environment or to associate with others (definition from section 1 of the Mental Health Act);
- is the patient requiring psychiatric treatment in or through a designated facility;
- is the patient requiring 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 the protection of others; and
- can the patient be suitably admitted as a voluntary patient?
If a majority of the review panel is satisfied by the evidence presented at the hearing that all four criteria above continue to describe the condition of the patient, the review panel must determine that the detention of the patient should be continued (section 25(4.1)). If the majority of the review panel does not conclude that a patient meets all four criteria above, the review panel must find that the patient should be discharged under the Mental Health Act. The decision of the majority of the review panel is a decision of the Review Board (section 24.2 and Administrative Tribunals Act, section 26(5)).
In the case of a person under the age of 16 admitted under section 20 on the request of a parent or guardian, the review panel must only decide if the person continues to meet the criteria set out in the Mental Health Act for a person with a mental disorder which includes the need for psychiatric treatment.
To be involuntarily committed/detained, does the person have to be in danger of causing bodily harm to him/herself or others?
No. The criteria in section 22 of the Mental Health Act does not contain the word "dangerousness". Rather the criteria specifies that detention is to prevent substantial mental or physical deterioration or for the person's own protection or the protection of others. While the Act does not define "protection", this term includes more than risk of bodily harm. Mr. Justice Donald's ruling in the British Columbia Supreme Court case of McCorkell v. Riverview Hospital (Director)(1993), 81 B.C.L.R. (2d) 273 (S.C.) interpreted what protection means. The judge stated:
"I agree with [the]...argument that the Manitoba criteria bear a close similarity to the British Columbia standard. In the Manitoba legislation, "serious harm" is not qualified; it can include harms that relate to the social, family, vocational or financial life of the patient as well as the patient's physical condition. The operative word in the British Columbia Act is "protection" which necessarily involves the notion of harm."
A review panel makes a decision on only one issue - whether the patient continues to meet the criteria to remain as an involuntary patient (Mental Health Act, section 25(2)). Unless a majority of the review panel is satisfied by the evidence that a patient meets the criteria for involuntary status as provided in the Act, the review panel must order that the person be discharged from involuntary patient status (section 25(4.1)). Where appropriate, the patient may request admission as a voluntary patient.
The review panel has no authority to decide other issues such as the appropriateness of the patient's treatment regime or whether the patient ought to be transferred to another hospital or granted additional passes. Although section 31 of the Mental Health Act provides that treatment authorized by the director is deemed to be given with the consent of the patient, it also states that a patient or someone on the patient's behalf can request a second medical opinion on the appropriateness of the patient's treatment (see also Regulation, section 8). Requests to accommodate other wishes that the patient or family members may have can be made to the physician or hospital authority. If a patient, relative or other person has a complaint about the treatment provided to an involuntary patient, such complaints may be brought to the attention of the patient's physician, the director of a designated facility, the hospital administration, the patient care quality officer (a service available at all hospitals in BC to deal with patient complaints), the health authority, the College of Physicians and Surgeons of B.C., the College of Registered Nurses of B.C., the College of Licensed Practical Nurses of B.C., the College of Registered Psychiatric Nurses of B.C., or the provincial Ombudsperson.
The review panel does not inquire into whether a patient's initial certification (Form 4 (PDF, 42KB)) was justified. A patient, near relative, or anyone who believes there was insufficient reason or legal authority for a certificate may apply to the Supreme Court of British Columbia under section 33(2) of the Mental Health Act.
The review panel has no jurisdiction over constitutional questions, including those relating to the Canadian Charter of Rights and Freedoms, and has discretion to decline jurisdiction to apply the Human Rights Code in any matter before it (Mental Health Act, section 24.2 and Administrative Tribunals Act, sections 44, 46.2).
After the review panel decision is issued, a patient or person acting on behalf of the patient may make an application to the courts.
Where there is reason to believe the review panel incorrectly applied the law or otherwise made a decision that was not within its statutory jurisdiction, it is possible to apply to the courts for a judicial review of the decision; (see Mental Health Act, section 24.2, Administrative Tribunals Act, sections 57, 59, and Judicial Review Procedure Act). A patient or person acting on behalf of the patient may also apply for a writ of habeus corpus to bring before the court the question of whether a person is lawfully detained (Mental Health Act, section 33(3)), i.e. to have the detention decision judicially reviewed. However, habeus corpus is rarely used under the Mental Health Act and its application in a designated facility would usually be based on an alleged error or a defect in the completion of medical certificates. An application for judicial review must be filed in the British Columbia Supreme Court within 60 days from the date the review panel decision was issued; in certain circumstances the court will grant an extension of time for such filing.
In addition, a separate application to the British Columbia Supreme Court may be made under section 33(2) of the Mental Health Act for an order prohibiting admission or directing the discharge of an individual. A patient, near relative, or anyone who believes there is insufficient reason or legal authority for a certificate may apply to the court under this provision.
While it is possible to go to court without a lawyer, it is advisable to have one. Applications to court, including judicial reviews, are separate from applications to the review panel.
Review panel procedures are less formal and the hearings and decision usually occur sooner than a court proceeding. Review panels are specialized in applying the criteria under the Mental Health Act to determine whether someone should continue to be an involuntary patient. Unlike applying to the courts, there is no charge for a review panel hearing.
When can a physician recertify a patient who a review panel has found should not continue to be detained?
This question was considered in a court case Greggor v. Riverview Hospital (Director),  B.C.J. No. 694 (S.C.)) in which a patient was recertified three days after a review panel found he should not continue to be detained and before he had left the hospital. The court noted that immediate re-admission seemed unusual. Nevertheless, the judge found there is nothing prohibiting re-admission for any particular period of time after a review panel has made its findings (just as there is nothing in the Act prohibiting re-admission of a patient for any particular period of time after discharge by the hospital itself).
Most people in British Columbia requiring hospital treatment for mental disorders are voluntarily admitted to hospitals. A sizeable number of people with serious mental disorders refuse to accept psychiatric treatment. (In 2003 there were approximately 8,000 involuntary admissions.)
Without involuntary admission and treatment made possible by the Mental Health Act, these seriously mentally ill people would continue to suffer, causing significant disruption and harm to their lives and the lives of others.
With involuntary hospital admission and treatment, most people quickly improve to the point where they can continue as voluntary patients or resume their lives in the community. The vast majority of people involuntarily admitted are discharged within one month.