In Committed to Change, a report detailing the failure of the mental health system to uphold the rights of involuntary patients hospitalized under the Mental Health Act, the BC Ombudsperson issued 24 recommendations “to ensure the rights of people with serious mental illness are respected and public confidence in our mental health system is enhanced.” (BC Ombudsperson 2019, p. 3)
One of the recommendations is that, “By March 31, 2020, the Ministry of Health update and reissue the Guide to the Mental Health Act to incorporate the changes made arising from this report and other changes.” (BC Ombudsperson 2019, p. 98)
The most recent edition of the Guide to the Mental Health Act was published by the Ministry of Health in 2005 “in consultation with individuals, families, police, physicians, other health care professionals and advocacy and service organizations” (Ministry of Health 2005, p. iv) with the aim of providing clarity and consistency in the interpretation and application of the Mental Health Act—legislation enacted in 1996 and last substantively amended in 1998. The legislation itself is vague and arcane in several places, and the Guide is meant to help the various stakeholders in the mental health system better understand their rights and responsibilities under the law.
In the years since the Guide was published, a lot has changed. For example:
- A major court case, Mullins v. Levy, supplied a definition of “examination” by a physician under Section 22 of the Mental Health Act;
- Form 18.1, which notifies near relatives that an involuntary patient has applied for a review panel hearing, was introduced;
- Form 7, used to apply for review panel hearings, was substantially revised;
- The Mental Health Review Board moved from the jurisdiction of the Ministry of Health to the Ministry of the Attorney General;
- The Mental Health Review Board issued revised Rules of Practice and Procedure;
- The Ministry of Mental Health and Addictions was created.
Further policy changes will likely arise both from the Ombudsperson’s Committed to Change report and from Operating in Darkness, the Community Legal Assistance Society’s critical report on BC’s mental health system.
The Guide, as physician Sam Naccarato told me in an interview, “needs a rewrite badly,” (personal communication, May 5, 2016) and I welcome the Ombudsperson’s recommendation as an opportunity to revise this important document to better serve its users.
In addition to simply being outdated, the 2005 Guide has several other deficits:
Language is antithetical to patient-centred care
Psychiatric nursing researcher Maja Kolar, who did a critical discourse analysis of the Mental Health Act as well as the Guide to the Mental Health Act, found that the language in the Guide reinforced power imbalances between clinicians and patients, to the detriment of patient autonomy and agency:
In the Act and Guide, nurses are positioned to engage in correctional, punitive and therapeutic methods, which may be consistent with the MHA, yet are at odds with their professional responsibilities to advocate and preserve safety, autonomy, dignity and well-being of the patient. Such methods do not align with contemporary best-practices, such as trauma and violence informed care or harm reduction. (Kolar 2018, p. 48)
In particular, the way the Guide is written doesn’t encourage patient engagement in treatment planning, which has been shown to increase patients’ likelihood of reaching their recovery goals and continuing to engage with the mental health system after discharge (Linhorst 2006, p. 89):
Healthcare practitioners are centered throughout the Act and Guide. Consultation and collaboration with patients and their families within the MHA are practically absent and further not obligated, in relation to actions involving consent processes, treatment planning, Extended Leave, and rights notification. All decision making authority remains with the physician, nurse and police officer. Healthcare practitioners and police are further protected from liability in relation to performing any functions within the MHA. Opportunities to assess and ensure the ethical and appropriate application of involuntary treatment under the MHA exist, however requirements on policy levels are severely limited, if not entirely absent. The Act and Guide utilize and depend heavily upon an official, bureaucratic, biomedical discourse in an attempt to construct it as neutral and objective, obscuring the power of those constructing it, and entrenching existing power relations. (Kolar 2018, p. 70)
The certification periods after recall are poorly explained
Some certified patients may be released from hospital and placed on extended leave, which means they can live in the community but remain certified and subject to involuntary treatment. Recall is when a patient on extended leave must be rehospitalized. During recall, the certification and renewal periods are reset. (For information about certification periods, please refer to my research team’s rights materials.)
In other words, for someone in a six-month renewal period, for example, a rehospitalization means they revert to a one-month certification period, which may be renewed by another month, then three months, and finally periods of six months. Thus, recall entitles them to more opportunities to be notified about their rights and to act on them.
This point is poorly explained in the Guide, and the confusion surrounding recall is, according to Naccarato, “the number one cause of someone being decertified accidentally… I think it confuses the patient, it confuses the physician, it confuses everybody… They have to go through that certification process again, which is quite traumatic. They go through that unnecessarily. It’s expensive and bad for the patient as well.” (personal communication, May 5, 2016)
The Guide has usability and sustainability problems
At more than two hundred pages, the length of the Guide is a particular issue. Said psychiatric nurse and researcher Angela Russolillo, “The size of it is daunting…You only end up reading small portions of it…. But I’ve never read the whole thing. I don’t plan on reading the whole thing.” (personal communication, January 18, 2016)
But it doesn’t have to be that long—there’s quite a bit of repetition that can be cut with a thoughtful structural edit.
At its current length, a major usability problem is its lack of an index. Some topics appear in unintuitive places that can’t be easily found through the table of contents. Because I was using the Guide extensively for my own research, I prepared a back-of-the-book subject index to make my work easier and have shared the index with several other researchers and clinicians who asked for it. (Download the index to the Guide here; it was reviewed for accuracy by Gerrit Clements, legal consultant to the Ministry of Health on the Mental Health Act and a main contributor to the Guide.) I offered it to the Ministry of Health, but I don’t think it was ever uploaded to their site and made publicly available.
The inflexibility of the Guide’s as a PDF file and the inevitability of continual changes to the Act call for the Guide to the Mental Health Act to be made into a living document that can be updated as needed—when case law affects the interpretation of the Act, for example, or when the Act or Mental Health Regulation is amended—and made available as web content.
Interested stakeholders could sign up to be notified whenever substantive changes to the Guide are made.
The Guide has a nebulous target audience
Another problem with the Guide is the lack of clarity on the document’s intended audience.
In some ways the Guide plays the role of a clinical practice guideline, to be used mostly by clinical staff and hospital administrators, but it also has appendices targeted to physicians, paramedics, family care partners, and police.
Strikingly, the document doesn’t speak directly to patients, referring to them exclusively in the third person. It doesn’t include an appendix especially for patients, although much of the information in the guide is directly relevant to their hospitalization and care. Some of my interviewees who experienced certification recall being given the Guide to read when they asked about the Mental Health Act and their rights. One of them said that he found the amount of information overwhelming and that “it wasn’t very helpful.”
Separate documents tailored to each major stakeholder group—clinicians, police, advocates, patients, family care partners—might be more effective in helping readers discern what information is relevant to them. Although these stakeholders were consulted when the Guide was created, the feedback from many of these end users suggests that consultations alone aren’t enough. Revising the Guide gives us the chance to co-create content with each group. Making the content modular and offering it to specific stakeholder groups on a searchable site, much like the Mental Health Review Board has done on its website, would improve usability and sustainability.
PDFs and print copies would still have to be made available for quick reference, especially where an internet connection isn’t readily available. A single-source publishing workflow could make creating updated PDFs for printing relatively straightforward.
Contributing to a new Guide
Together, Kolar and I are perfectly positioned to help revise the Guide in a meaningful way. Because of our respective research, both of us have been steeped in the language and content of the Guide. Between the two of us, we have:
- clinical experience with certified patients
- experience with critical discourse analysis
- experience in equity-oriented care
- experience with patient-oriented research and integrated knowledge translation
- experience with co-creation and user testing of patient health education materials
- interview data from people with lived experience of certification
- focus group data from clinicians about implementation of the Mental Health Act
- editing, indexing, publishing, and project management expertise
- plain language and health literacy knowledge
We have the skills and knowledge to contribute substantially to the new Guide and hope the Ministry of Health will consider our involvement.
BC Ombudsperson, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act. Victoria: Office of the Ombudsperson, 2019. Retrieved from https://www.bcombudsperson.ca/sites/default/files/OMB-Committed-to-Change-FINAL-web.pdf.
Kolar, Marina Maja. “Involuntary and coercive psychiatric treatment: a critical discourse analysis of British Columbia’s Mental Health Act.” MSN thesis, University of British Columbia, 2018.
Linhorst, Donald M. Empowering People with Severe Mental Illness: A Practical Guide. New York: Oxford University Press, 2006.
Ministry of Health, Guide to the Mental Health Act (Rev. ed.). Victoria: Ministry of Health, 2005. Retrieved from http://www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf.