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PUBLIC HEALTH - Health units - Powers - To order quarantine, isolation or detention of individuals

Thursday, October 22, 2020 @ 6:10 AM  


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Appeal by the Minister of Justice and Solicitor General of Alberta and Alberta Health Services from a judgment declaring the detention provisions of the Mental Health Act constitutionally invalid. The respondent, JH, suffered significant injuries after being hit by a vehicle. He spent five months in hospital, during which he lost his identification and apartment. He was homeless upon discharge and resided in a shelter. Shelter staff brought the respondent back to hospital due to infection of his prior injury. He was admitted for 20 days for knee surgery and other tests. The respondent sought discharge. Instead, he was certified under the Mental Health Act and involuntarily detained for nine months. The respondent, age 49, was an Indigenous person with no prior history of mental health issues. He was diagnosed with a neurocognitive disorder and detained due to the likelihood of self-harm and the risk of relapse to use alcohol. He was treated with anti-psychotic medication despite a medical opinion that he did not require treatment. A Review Panel upheld the certification of the respondent. On appeal, the Court of Queen’s Bench held that Alberta Health Services failed to establish that the respondent met the criteria for detention. The Court subsequently determined the respondent’s constitutional challenge to the detention provisions and declared the provisions unconstitutional. The trial judge found that the Act’s criteria for detention were overbroad and procedurally unfair. Declarations of invalidity were suspended for 12 months to enable legislative amendment. The Province appealed. 

HELD: Appeal dismissed. The purpose of the Act was to permit the state to restrict the liberty of individuals with significant mental health disorders where necessary to provide protection through treatment. Its effect was to deprive patients of liberty beyond what was required to achieve that purpose. Therefore, the Act was overbroad and in violation of s. 7 of the Canadian Charter of Rights and Freedoms (Charter). The Act did not provide for a highly individualized assessment and consideration of a patient’s specific condition and treatment needs. In addition, the provision for indefinite detention overreached the purpose of the Act. A review panel’s power to only cancel or renew a certification did not permit tailoring the degree of restraint or liberty to individual cases. The review criteria did not define or qualify harm, resulting in the Act capturing individuals like the respondent who suffered from cognitive impairment or developmental disorders. The review process fell short of achieving procedural fairness, as it did not ensure a patient knew the case to be met. Although the Act provided a right to representation, it did not ensure the presence of an advocate for a patient. The trial judge was correct in finding the Act created the potential for arbitrary detention contrary to s. 9 of the Charter. The court declined to read in operational requirements and upheld the declarations of invalidity.

J.H. v. Alberta (Minister of Justice and Solicitor General), [2020] A.J. No. 948, Alberta Court of Appeal, S.J. Greckol, E.A. Hughes and J. Antonio JJ.A., September 11, 2020. Digest No. TLD-October192020007