The Mental Health Review Board’s new Rules of Practice and Procedure

In its 2017–2018 annual report, the Mental Health Review Board announced plans to modernize its Rules of Practice and Procedure. On August 28, 2018, the review board released the new Rules, and all review panels are expected to follow them by October 15, 2018.

The board also released a document outlining the key changes to the Rules and issued five Practice Directions documents:

The review board intends for these documents to “ensure that a patient is given a procedurally fair hearing that also proceeds expeditiously.” Many of the polices are meant to streamline the review panel hearings: they encourage both case presenter and patient (or patient representative) to come to the hearings prepared to give the review panel the evidence they need to make their decision. But several of the new rules also support patients’ rights, and this post will highlight some of those points.

A cartoon depicting a mental health review board hearing. The three-member panel sits along one edge of a large table. The patient sits with his representative on one side of the panel and the case presenter, in this case the doctor, sits on the other side.
A review panel hearing. Illustration by Jonathon Dalton.

Background

An involuntary patient can challenge their certification by applying for a review panel hearing, which is coordinated by the Mental Health Review Board. At the hearing, an independent panel consisting of a doctor, a lawyer, and a member of the community who is neither a doctor nor a lawyer decide if the patient meets all four criteria for certification. (See our rights materials for more information about the criteria.) If the panel decides that the patient does meet the criteria, the patient will remain certified; otherwise, the patient will be discharged.

The panel makes its decision based on evidence from:

  • the case presenter representing the treatment team and
  • the patient or the patient’s representative.

New rules

Reapplications after withdrawals

According to the old rules, a patient who cancelled their review panel hearing wouldn’t be allowed to apply again within the same certification period. For patients whose certification has been extended several times, this rule meant that they might have to wait months before they could apply again.

In response to the Community Legal Assistance Society’s critical report, Operating in Darkness, the board has changed this rule, now allowing patients who withdraw their review panel application to reapply in the same certification period.

Disclosure of health records to patient or patient representative

Possibly the most important changes from a patients’ rights perspective are the new rules about disclosing health records. One of the Practice Directions documents deals with disclosure specifically. It says:

  • Facilities (hospitals) have the duty to release all relevant records in their control when a patient or patient representative requests them.
  • Patients can ask for them orally. Patient representatives have to ask for the records in writing. The request should be made at least 3 days before the hearing.
  • Patients or patient reps can ask (a) to see the records or (b) to get a copy of the records. If they ask to see the records, the hospital has to give them enough time before the hearing and an appropriate location to look at them. If they ask for a copy, the hospital is responsible for the photocopying costs.
  • If the hospital doesn’t comply with the request, the patient or patient rep can ask the review board to order the hospital to disclose the health records.
  • Any document that isn’t disclosed ahead of time can’t be used in the review panel hearing unless the panel allows it. If the panel does allow it, all parties must be given 30 minutes to review it.

Helpfully, the Practice Directions document gives examples of the kinds of documents that should be disclosed (this list is quoted from the document):

• Forms and certificates (e.g. Forms 4, 6, 11, 12 and 21)
• Medical reports, including attending physician reports
• Past admission /discharge notes and summaries
• Progress reports
• Mental Health Team assessments
• Attending physician notes
• Physician/nursing/social work/occupational therapy notes
• Police reports
• Interviews with family members, friends, and neighbours
• Any document that will be referred to or relied on in the case note and presentation

To clarify:

  • Form 4 is the medical certificate. There will be two of them, and they should include written details from the treating physician about why the patient was certified.
  • Form 6 is the renewal certificate. There will be one for each time the patient’s certification was renewed.
  • Form 11 is a request for a second medical opinion
  • Form 12 is the physician’s report from the second medical opinion
  • Form 21 is a director’s warrant, issued whenever a person on leave is recalled to hospital or when a certified patient has left the hospital without permission

Case notes

The new rules require the treating physician to prepare a case note that outlines the evidence they will present at the hearing, including a list of witnesses. This case note must be submitted to the review panel and to the patient or patient rep at least 30 minutes before the hearing begins. Knowing exactly what the case presenter will present will help a patient prepare for the hearing and may help reduce anxiety about the possibility of being confronted with unexpected evidence during the hearing.

Clothing

The new rules explicitly state that patients are allowed to wear whatever they want to the review panel hearing, including their own clothes. Operating in Darkness had raised the issue that not allowing patients to wear their own clothes—and forcing them to appear in hospital pyjamas or gowns—would unfairly bias the panel members by giving the impression that the patient belonged in hospital.

Critiques and questions

These documents mark an important step in bolstering patients’ rights when they apply for a review panel hearing. Since the Mental Health Review Board moved from the Ministry of Health to the Ministry of the Attorney General, the changes it’s made to review panel procedures do seem to reflect more of an orientation toward individual rights and access to justice.

An unfortunate side effect is that the review board’s public documents are rife with unnecessarily legal and complex language, which can be inaccessible and even intimidating to involuntary patients, particularly those who have cognitive difficulties. (For example, “prior to the commencement of,” which appears in several of the Practice Directions documents, could easily read “before” with no loss of meaning.)

Some of my research participants who had experienced certification had asked me about access to their health records. With these new rules, it seems that if the hospital refused to give records to a patient, the patient could simply request a review panel hearing and ask for the records that way. These rules may prompt hospitals to be more forthcoming about sharing records, either out of a sense of fairness to all patients or as a way to prevent people from applying for hearings when all they want are their records.

Most of these documents seem to have been written for the facility or for patient reps. Many of them are relevant to patients, but none of them are addressed to patients explicitly. And it’s unclear if patients in hospital would (a) have internet access to read these online, (b) know what to look for and where to find them.

Although patient reps should rightly have guidance about their rights and responsibilities before and during a review panel hearing, these documents miss a therapeutic opportunity to empower patients by speaking to them directly. Health practitioners are trained, for example, to speak to the patient  even when an interpreter is present, and the same principle should apply here, even if the patient has representation.

Further, these new documents may not be enough direction for self-represented patients to know what to do.

Some of my research participants wanted more information to close the gap between applying for the review panel hearing and attending or presenting at the review panel hearing. After they apply with Form 7, all patients should automatically get further details to answer the “Now what happens?” question that inevitably comes up. This document should be patient-centred, in plain language, and include information about:

  • Who can represent them
  • How they can request their records
  • How they can prepare their evidence
  • How they can arrange for witnesses

among other relevant topics, ideally to be determined by consulting directly with patients.

The Community Legal Assistance Society has a brief guide for patients who are representing themselves. This document outlines what a review panel hearing involves, but the feedback from my research participants is that they’d appreciate more procedural guidance, and it seems that a document like the Practice Directions guidelines but for patients and in plain language would fit the bill. The board—or, alternatively, either the Ministry of Health or the Ministry of the Attorney General—would also have the authority to require that facilities provide this information to patients when they apply for a hearing.

Feedback to the board

According to the Mental Health Review Board’s website, “The Board will be collecting feedback on the implementation of the new Rules and Practice Directions over the next six months with the aim of making any necessary revisions in early 2019.”

I’ve never participated in a review panel hearing and so am not sure if I’m allowed to give feedback, but beyond the creation of an additional patient-centred document, I’d also ask the review board to:

  • add Form 5 to its Practice Directions document about disclosure
  • add definitions of each form (as I did above) to that Practice Directions document
  • amend section 10 of rule 23, which reads

(10) Observers may be permitted to attend the hearing with prior approval of the Board or with approval of the panel at the commencement of the hearing.

to include consent of the patient. Sometimes observers are clinical staff or trainees who want to learn what a review panel involves. This kind of education can be quite useful for staff, but in my opinion, the presence of these kinds of observers should only be allowed if the patient agrees they can be there.

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