Committed to Change—the Ombudsperson’s critical new report about involuntary patients’ rights

Over 2017 and 2018, the BC Ombudsperson’s Office investigated whether hospitals in the province were meeting their Mental Health Act obligations to safeguard involuntary patients’ rights by filling out the required forms at admission. On March 7, 2019, the report of this investigation, Committed to Change, was made public.

Overview of the report

The Ombudsperson asked designated facilities—hospitals and psychiatric units in the province that are authorized to hold people for treatment under the Mental Health Act—for copies of the following forms from patients who were admitted in June 2017:

• Form 4—medical certificate
• Form 5—consent to treatment
• Form 6—renewal certificate
• Form 13—notification of patients’ rights
• Form 15—nomination of near relative
• Form 16—notification to near relative about the patient’s detention and rights

When a person is first admitted under the Mental Health Act, a doctor must sign a Form 4 medical certificate and should also list on that form the ways the patient meets the four criteria for involuntary hospitalization. (For more information on the four criteria, see our rights materials.) The Form 4 is the legal document that allows patients to be kept in hospital against their will for treatment. One Form 4 allows the hospital to hold someone for 48 hours, and a second Form 4 allows the hospital to hold that person for up to 1 month.

The doctor is supposed to write the treatment plan on Form 5, the consent to treatment. The patient should be asked to read and sign the consent to treatment. When patients aren’t willing or able to sign the form, someone else must sign it on their behalf.

At admission, patients are supposed to receive information about their rights through Form 13. They’re also supposed to be asked to nominate someone to serve as their near relative using Form 15. (For more information about near relatives, see our previous post about their rights and responsibilities.) That near relative is supposed to be notified about the patient’s detention and rights via Form 16.

According to the Mental Health Act and Mental Health Regulation, for every admission, patients should have Forms 4, 5, 13, 15, and 16 in their file. But the Ombudsperson’s investigation found an overall compliance rate of only 28% across the province, with some health authorities performing considerably worse than others.

As the Ombudsperson writes, “These forms are not mere paperwork. Where the state is exercising the extraordinary power to remove a person’s liberty, legal documentation is a fundamental requirement that must be observed.” (p. 2)

Further, among the forms that had been completed, especially Forms 4 and 5, the Ombudsperson found that health authorities’ descriptions of:

• the reasons for certification (Form 4) and
• the proposed treatment (Form 5),

both of which should be specific to the patient and clearly written, were in many cases inadequate. For example, several facilities used rubber stamps that broadly and vaguely described possible psychiatric treatments. In other cases, Form 5 listed non-psychiatric treatments, which aren’t authorized by the Mental Health Act. Many forms were unsigned, undated, or completed outside the statutory time limits.

These practices show that the health authorities, as well as the Ministry of Health and Ministry of Mental Health and Addictions, “have not developed a culture within the mental health care system that places sufficient emphasis on the importance of an involuntary patient’s legal rights.” (p. 3)

In response to these troubling findings, the Ombudsperson has issued 24 recommendations, including that:

• health authorities stop using boilerplate language on their forms
• health authorities stop authorizing non-psychiatric treatment on Form 5
• the Ministry of Health and health authorities review and revise training for staff involved in admissions under the Mental Health Act
• the Ministry of Health revise the Guide to the Mental Health Act to reflect this report’s recommendations
• the government create and fund, through the Legal Services Society, an independent rights advice and advocacy service.

According to the report, health authorities were surprised at how poorly they fared in the investigation and committed to doing better.

My first impressions

This report touches on many of the issues we talk about on this blog, and over the next few weeks I plan to write some posts with deeper analysis into specific aspects of the report’s findings and recommendations. But for now, here are a few first impressions:

Patients aren’t getting rights information consistently

This report provides important evidence to support the notion that patients aren’t receiving their Form 13 rights information as they should. When people who have experienced involuntary hospitalization say they were never told about their rights, some may question whether they weren’t told at all or whether they were told but don’t remember because of their illness or the chaos of admission. In fact, the Ombudsperson found that only 49% of patient files had a Form 13, and only 13% of patient files had a Form 13 that was completed on the day of admission.

Even if patients receive Form 13, that may not be enough

If all institutions reached 100% compliance in giving patients their Form 13 rights information at admission, they would fulfill their legal obligations, but what our research shows is that patients may still not properly understand their rights, because Form 13 is not the best way of communicating that information. If the true goal of the legislation is to safeguard patients’ rights, patients must be able to understand those rights, and our rights materials can help. We’ve already partnered with some health authorities to implement the materials in hospitals and hope that all other health authorities will follow suit.

If you work for a health authority that doesn’t yet use our patient-co-created rights materials, let your leadership team know about us so that they don’t have to reinvent the wheel.

We have experience and research on clinician training

Similarly, the report recommends deploying clinician training. Our research team has already developed a curriculum and format that have been very well received. I’d be happy to collaborate on customizing our training to your needs if you get in touch.

The government must commit to revising and co-designing the legislation

Finally, asking the health authorities to improve practices to increase compliance is an important step, but one of the reasons for the lack of compliance may be that the legislation imposes requirements that may interfere with clinical workflow.

For example, the report says, “One health authority told us that Forms 15 and 16 do not have to be completed until a second Form 4 is completed.… However, this position regarding the timing of completion of Forms 15 and 16 is not consistent with the Mental Health Act.” (p. 66)

The health authority’s practices are understandable in some ways: certain Mental Health Act rights, like the right to a review panel hearing or the right to a second medical opinion, don’t kick in until a second Form 4 is signed. And although a person’s next of kin should certainly be notified as soon as possible after admission, if they stay for less than 48 hours, sending Forms 15 and 16, especially if done by mail, could seem impractical.

The logistics of completing and sending the forms interferes with their use, and the Ministry of Health should consult the users of those forms to revise them to be as frictionless to use as possible. Instead of simply requiring 100% compliance, the government should instead revisit the Mental Health Act and Mental Health Regulation, including all forms, with all stakeholders playing a part in co-designing legislation that upholds patients’ rights as well as their timely treatment.

More commentary to come

I thank the Ombudsperson’s report for highlighting the importance of patients’ rights, which has been the focus of my team’s research. Stay tuned for posts that take a closer look at:

• the recommendation for the government to create a rights advice and advocacy service
• the role of the public guardian and trustee in safeguarding patient rights
• the right of patients to access their own records.

Do you have an idea for a post that stems from this report? Please get in touch!

News coverage of the report

• CBC News: “B.C. didn’t honour legal rights of involuntarily detained mentally ill patients: ombudsperson”
• Global News: “B.C. government fails in informing mental ill patients involuntarily admitted to facilities of their legal rights”
• Globe and Mail: “B.C. hospitals are ignoring rules on involuntary mental-health patients, ombudsperson finds:
• Surrey Now-Leader: “B.C. hospitals fail to meet rights of mentally ill patients admitted involuntarily: report”
• Times Colonist: “Many involuntarily admitted to psychiatric facilities without proper paperwork: report”
• Vancouver Sun: “B.C. didn’t meet rights of involuntarily detained mentally ill patients: report”