Apply for Review Panel Hearing
Where an involuntary patient wishes to become a voluntary patient or be discharged from hospital and his/her request to the attending physician to change his/her status has been denied, a patient may apply for a review panel hearing by filling in a Form 7: Application for Review Panel Hearing (PDF, 36KB). The application form may be obtained from hospital staff or the community mental health team. An involuntary patient is entitled to a hearing to determine whether his/her detention should be continued. Generally, a patient is eligible to apply for a hearing after the initial admission on two certificates and after each renewal of his/her certificate.
The application for a review panel hearing may be made by a patient or by someone else on the patient's behalf. The application must be made in writing and signed. In order to protect a patient's privacy and ensure confidentiality, the Board does not accept applications for review by e-mail.
Submit the Application
The completed form (Form 7: Application for Review Panel Hearing [PDF, 36KB]) should be given to the hospital staff who will then give the form to the director or designated staff member for faxing to the Mental Health Review Board office. A rights advisor or other person may deliver the patient's application directly to the Board office. Where the patient is on leave, arrangements for a review panel hearing may be made through the patient's community mental health team. The form may be sent to the Board office by fax or mail or by hand delivery.
Notification of Hearing Date
Within a day or two after a completed Form 7: Application for Review Panel Hearing (PDF, 36KB) is delivered to the Board office, staff will telephone the patient's hospital ward or community mental health team to schedule a hearing. Usually on the same day, staff will set the time, date and place of hearing and orally communicate this information to the hospital or community mental health team. The hearing is usually held at the designated facility (e.g. hospital) where the patient is located. When a patient is on extended leave, the hearing is usually scheduled in the community where the patient resides. Occasionally, the hearing is conducted by videoconference if panel members are not available in the general region. Approximately a week before the hearing date, Board staff will fax a letter to the hospital ward or community mental health care team to verify the date, time, and place of the hearing in writing.
- during the first period (one month) of detention, within 14 days after a completed Form 7, "Application for Review Panel Hearing", is delivered to the Board office;
- during the second period (one further month) of detention, within 14 days after a completed Form 7 is delivered to the Board office;
- during the third period (three further months) of detention, within 28 days after a completed Form 7 is delivered to the 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 Board office, provided that 90 days have elapsed since the conclusion of any previous hearing.
See also Rules 5.0 and 8.0 of Rules of Practice and Procedure.
Section 25(3) of the Act gives the Board chair authority to shorten the time period during the fourth or subsequent periods. 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.
Patient's Right to Legal Representation Form
As soon as the hearing is scheduled (i.e., within a day or two of the board receiving the completed Application for Review Panel Hearing form), board staff will fax a Patient's Right to Legal Representation form to the hospital ward or community mental health team. The Patient's Right to Legal Representation form acknowledges receipt of the application form and advises the patient of his/her right to seek counsel. Patients can make their own arrangements for counsel/representation or obtain free representation from the Community Legal Assistance Society's Mental Health Law Program (MHLP).
The MHLP provides patients with information and assistance regarding the review process and provides advocates to represent patients at review panel hearings throughout the province. As the MHLP has a limited number of legal representatives and operates on a first-come first-served basis, a legal representative may not always be available. If MHLP cannot provide a legal representative, it will refer the patient to Access Pro Bono for possible legal representation. Many patients who are represented at review panel hearings are represented by paralegals or advocates from the MHLP, or alternatively Access Pro Bono. Patients seeking to make their own arrangements for counsel may call the Lawyer Referral Service (604-687-3221 or 1-800-663-1919).
On the Patient's Right to Legal Representation form, the patient must select one of the following options: (1) I will make my own arrangements for a lawyer or a non-lawyer agent/advocate/family member to attend at the hearing (an agent/advocate can be anyone I choose to speak on my behalf); (2) I cannot afford a private lawyer and request that this form be forwarded to MHLP and, if no legal representative is available through MHLP, to Access Pro Bono; or (3) I do not want a legal representative (a lawyer, agent, advocate, etc.) and will represent myself at the hearing. If the patient wants to select option #2, he/she should complete the form as soon as possible. The patient must complete and sign the form and the hospital or mental health team will fax it to the board.
Preparing for the Hearing
To prepare for the hearing, patients may wish to watch the videos entitled "How to Prepare: First Steps" and "In-Person Hearings" at the Guide to Administrative Law website and/or refer to the provincial Guide to the Mental Health Act 2005 (PDF, 5.1MB).
Patients should consider contacting the Mental Health Law Program at the Community Legal Assistance Society (604-685-3425 or toll free 1-800-685-6222) or a lawyer to assist or provide representation at the review panel hearing. Patients may be represented at the hearing by an advocate/agent who is not a lawyer (Mental Health Act, section 24.2 and Administrative Tribunals Act, section 32). An advocate/agent can be a friend or anyone chosen by the patient to speak on his/her behalf.
Patients should meet with their advocate before the hearing to prepare and gather evidence to support their case - such as contacting people who can speak as witnesses in support of their application for discharge. The best witness is someone who actually witnessed an event or series of events. A witness can attend the patient's hearing in person. If the witness is unable to attend, the patient's advocate can bring a letter from the witness and arrange to have the witness available to answer questions by phone at the hearing. Oral evidence is preferred as it allows participants at the hearing, including review panel members, to clarify the evidence through questions, as well as providing the panel with a better opportunity to assess the weight/persuasiveness of the evidence. The review panel will give more weight to relevant and reliable evidence.
Family members or others 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 advocate. If neither party wishes to call the family member or other person as a witness, 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 to 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).
Withdrawal of a Request for a Hearing
A patient may withdraw their request for a hearing at any time prior to the hearing (Mental Health Act, section 25 (2.7). This request should be in writing and faxed to the Board office as soon as possible. See Rule 7.0 in the Rules of Practice and Procedure.
If you cannot attend your hearing due to illness or if you need more time to gather evidence or find an advocate, you can request to have your hearing rescheduled for another date. This request should be communicated to the Board office as soon as possible. See also Rules 13.0, 8.0 and 15.6 in the Rules of Practice and Procedure.
At the Hearing
A review panel is comprised of three or more members appointed from the Board and includes a medical practitioner, a lawyer, and a person who is neither a medical practitioner nor lawyer (Mental Health Act, sections 24.1(2), 24.1(3)). Normally, the lawyer member is designated to chair the review panel hearing.
Review panel hearings are held in private to protect the privacy of the patients (section 25(2.5)). Family members and others wishing to observe the hearing without participating in it may normally do so only with the consent of the patient and the review panel.
The following documents are usually presented as evidence 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, as well as successful and unsuccessful treatment and, if applicable, compliance with treatment plans in the community. In addition, the note should provide 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 give evidence and call witnesses to give evidence in support of his/her argument for discharge. Evidence from a witness may be submitted in writing or presented orally at the hearing (in person, by phone/teleconference, or a combination of the two).
Normally review panels do not review patient treatment records before or after a review panel hearing and only consider evidence, including hospital records, presented at the hearing. In exceptional cases, the review panel may compel a person to give evidence at a hearing and may order disclosure of documents under section 24.3.
The hearing is recorded on a small tape recorder (Mental Health Act, section 24.2 Administrative Tribunals Act, section 35). The Mental Health Act requires that records of the proceedings of a hearing be kept for at least one year (Mental Health Act section 25(9)). The chair of the review panel begins by introducing members of the panel and identifying the names and roles of all other participants at the hearing. The hearing procedure to be followed is described and any procedural questions are answered. The case presenter then presents evidence for the facility to support its case for the continued detention of the patient. The case presenter is usually the treating physician or the director of the designated facility. The facility representative does not require legal counsel. The case presenter's presentation is followed by questions from the patient or his/her advocate and the review panel.
The patient or his/her advocate then presents the case for discharge from involuntary status. The patient's advocate makes submissions in favour of discharge. Most of the evidence is usually given by the patient himself/herself but there may be evidence from witnesses to support the patient's case. Unless the patient agrees or the review panel orders otherwise, witnesses will remain outside of the hearing room except when giving evidence or making submissions to the review panel. This is to ensure their evidence is untainted by the patient's evidence and the evidence of other witnesses. Evidence presented at a review panel hearing must be relevant to the hearing and the panel may exclude anything that is not relevant or that is overly repetitious (Mental Health Act, section 24.2 and Administrative Tribunals Act, sections 40(1), 40(2)). After the patient has presented his/her case, the case presenter and review panel may ask questions of the patient and witnesses.
Each party is then offered an opportunity to make closing arguments or submissions. The purpose of closing arguments is to permit each party to summarize its case. New evidence cannot be submitted in closing arguments. Closing arguments usually summarize the significant evidence as the party sees it and what the party would like the panel to draw from the evidence. The case presenter usually presents closing arguments first, followed by closing arguments from the patient or patient's advocate. The parties and witnesses then leave the hearing room and the review panel deliberates.
See also Rules 14.0, 15.0, 16.0 and 17.0 in the Rules of Practice and Procedure.
After the Hearing
The review panel decides whether the detention of the patient should be continued. The review panel applies section 1 definition of a "person with a mental disorder" and the criteria provided in section 22 of the Mental Health Act -specifically section 22(3)(a)(ii) and (c). The criteria are as follows:
- Is the patient suffering from a disorder of the mind that seriously impairs the his/her ability to react appropriately to the environment or to associate with others;
- Does the patient require psychiatric treatment in or through a designated facility;
- Does the patient require care, supervision and control in or through a designated facility to prevent his/her substantial mental or physical deterioration or for his/her own protection or the protection of others; and
- Can the patient suitably be admitted as a voluntary patient.
When considering whether the patient meets the criteria for continued hospitalization, the review panel must consider the patient's current functioning as well as his/her history of hospitalization and treatment compliance. All reasonably available evidence must be considered. The review panel must consider the likelihood that if discharged, 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)).
If a majority of the review panel is satisfied by the evidence presented at the hearing that all four criteria set out above continue to describe the condition of the patient, the review panel must conclude that the detention of the patient should be continued (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.
When a person under the age of 16 is admitted under section 20 by 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 Act for a person with a mental disorder which includes the need for psychiatric treatment.
A review panel is usually able to come to a decision very shortly after the hearing (within thirty minutes) and can give an oral decision then on whether or not the patient's detention should continue. However, the review panel may take up to 48 hours to reach a decision. Section 25(2.8) of the Act requires that, within 48 hours after the hearing, a review panel must decide whether or not the patient's detention should continue and reasons must be provided within 14 days after the determination has been issued.
Section 25(2.9) of the 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. When 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.)
See also Rule 18.0 in the Rules of Practice and Procedure.
Application to the Courts
When there is reason to believe the review panel incorrectly applied the law or otherwise made a decision that was not within its statutory jurisdiction, the patient or his/her advocate may apply to the courts for a judicial review (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 by judicial review 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)). However, habeus corpusis 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. In both situations, 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. Procedures for applications to court, including judicial reviews, are more formal than review panel procedures. There is no charge for a review panel hearing whereas fees must be paid for an application for a court proceeding.