Will forcing health authorities to complete all Mental Health Act forms help patients better understand their rights?

Poor form completion rates

In the recently released report, Committed to Change, the BC Office of the Ombudsperson detailed disturbing findings that involuntary patients aren’t consistently told about their rights under the Mental Health Act. Further, family care partners aren’t always told that their loved ones have been detained. These stories are appalling, but will enforcing better record keeping prevent these scenarios from happening?

According to the Mental Health Act, when a person is admitted as an involuntary patient under a medical certificate (Form 4):

  • They’re supposed to learn their rights by being read and given Form 13.
  • They’re supposed to nominate a near relative to notify about their hospitalization, using Form 15.
  • Their care team is supposed to send Form 16 to that near relative. Form 16 tells the near relative that the person (a) has been detained and (b) has rights under the Mental Health Act. This form is supposed to be sent or given to the near relative immediately after the person has been admitted.

The BC Office of the Ombudsperson found:

  • Form 13 in only 49% of patient files,
  • Form 15 in only 43% of patient files, and
  • Form 16 in only 32% of patient files.

In response to these poor compliance rates, the Office of the Ombudsperson issued this recommendation:

Recommendation 9: By June 30, 2019, the Ministry of Health and the Ministry of Mental Health and Addictions work together with the health authorities to establish clear and consistent provincial standards aimed at achieving 100 percent compliance with the involuntary admissions procedures under the Mental Health Act through the timely and appropriate completion of all required forms.

In other words, these three forms should appear in 100% of patient files. But will mandating 100% compliance solve the problem of patients and family care partners not knowing patients’ rights?

I don’t believe they will.

Reasons for poor compliance

I alluded to the disconnect between form completion and rights comprehension in a previous post about this Ombudsperson’s report. Poor compliance with form completion could be an indicator of staff who are flippant about patients’ rights, but on its own, it may not necessarily mean that patients and family care partners aren’t being informed about patients’ rights. Clinicians could be telling patients and care partners about their rights without using the forms but in a way that better meets their information needs. Conversely, excellent compliance may not necessarily mean that patients and family care partners are being given a good understanding of patients’ rights.

The root of the problem is that none of these forms were co-designed with their end-users. Form 13, as my research has found, has unnecessarily complex language and an inappropriate tone for patients to read and understand. Form 16 is written in a similar way and may not be appropriate for near relatives to read and understand, either. Further, there’s evidence that the forms don’t fit naturally into the clinical workflow. In some cases, the timing of when clinicians are expected to give them to patients or near relatives doesn’t make practical sense and might even interfere with giving patients timely care.

For example, when the Office of the Ombudsperson asked health authorities for reasons their forms weren’t properly completed, they responded as follows:

One health authority told us that Forms 15 and 16 do not have to be completed until a second Form 4 is completed. In taking this position, the health authority relied on a “Mental Health Act Clinical Practice Standard Q&A” document that it had developed. However, this position regarding the timing of completion of Forms 15 and 16 is not consistent with the Mental Health Act, which requires the director to give notice to an involuntary patient’s near relative immediately upon admitting the patient under the first Form 4 medical certificate and, by necessary implication, requires the director to give the patient the opportunity to nominate that near relative. (p. 66)

Two health authorities told us it was their practice to refrain from completing Forms 13, 15 and 16 until after a second Form 4 was completed (meaning the patient had already been detained for up to 48 hours), despite the Mental Health Act requiring these forms to be completed immediately upon admission under a first Form 4 medical certificate. (p. 76)

One Form 4 allows the hospital to hold the patient for up to 48 hours, and a second Form 4 allows the hospital to hold the patient for up to a month. Certain Mental Health Act rights—like the right to apply for a review panel hearing or a second medical opinion—don’t take effect until after that second Form 4 is signed. Further, several (but not all) of my research participants who’d experienced involuntary hospitalization readily told me that when they were first admitted, they weren’t in a state of mind to understand information. They may also have been too ill to provide contact information for a near relative. And if an involuntary patient is released before the end of the first 48 hours, they could be home before the paperwork makes it to the near relative, especially if hospitals have no way of sending it other than by mail.

In many ways, it makes sense to wait until the second Form 4 to complete Forms 13, 15, and 16.

The Office of the Ombudsperson also recommends the following:

Recommendation 6: By January 1, 2020, the health authorities develop a process…to confirm receipt of each Notification to Near Relative (Form 16) by its addressee, and, if the form was not received, to issue a further Form 16 to another near relative of the patient.

This added step of confirming receipt makes sense on the surface but puts yet another administrative burden on clinicians and may be a barrier to the patient-care workflow.

Should patients be told, immediately after admission, where they are, why they’re being held, and the fact they can contact a lawyer, as required by section 10 of the Canadian Charter of Rights and Freedoms? Should clinicians make every effort to contact a family care partner as soon as possible? Absolutely. But I think forcing 100% compliance on Forms 13, 15, and 16 is the wrong way to go about this. In fact, my biggest fear is that imposing an audit culture on clinicians when they’ve had no say in how the forms should be used will breed clinician resentment of the very concept of patients’ rights, which is the exact opposite outcome we want to achieve.

Moving toward a solution

Cartoon of clinicians sitting around a table. One of them is talking. A researcher listens.
Asking front-line staff to co-design a better system that focuses on the right outcome may be more productive than enforcing 100% form completion according to the existing legislation.

The way the Mental Health Act currently expects clinicians to complete these forms clearly isn’t working. Just as it’s not fruitful to blame patients for non-compliance with their treatment, it’s not productive to blame health authorities for failing to meet a standard in the legislation without some in-depth interrogation into why they’re not meeting that standard. It’s easy to place the blame on the possibility that “they 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), but that statement paints an incomplete picture. The 80+ clinicians in my focus groups cared deeply about patients’ rights and wanted to discuss the best strategies for providing that information given the constraints of the involuntary admissions process. I’m sure they’d have tremendous wisdom and insight to contribute to co-designing a new system that would:

  • ensure patients and care partners get the information they need,
  • fit well within the clinical workflow, and
  • accommodate record-keeping needs for accountability.

That record-keeping system may involve something more complex than forms—for example, narrative notes in a patient’s chart, which isn’t as easy to audit—but right now the compliance rate of form completion within the existing legislation is measuring the wrong outcome, and using that as your metric might encourage clinicians to check off the box without considering why the box exists in the first place.

The Office of the Ombudsperson is expecting the health authorities to develop a system to achieve 100% compliance by June of this year. That  doesn’t allow enough time for co-design with front-line staff to occur in any meaningful way. And it doesn’t open the possibility of adjusting the legislation itself to better accommodate the realities of the involuntary hospitalization process. Further, any changes to process, especially ones that require brand-new infrastructure to track and enforce form completion, is going to take a lot of resources, and it’s unclear how much the health authorities will get from the Ministry of Health or the Ministry of Mental Health and Addiction to make this happen.

All of this said, Recommendation 9 is only one of 24 that the Office of the Ombudsperson issued, and some of the other recommendations would address the problems I point out. For example, additional clinician training (Recommendations 12 and 13) might help foster a more rights-positive culture among clinicians. An independent rights-advice service (Recommendation 21) might increase the likelihood that patients will understand their rights. But they don’t obviate the need to co-design the law with the stakeholders that the law most affects. Without co-design, there will always be non-compliance.

One Reply to “Will forcing health authorities to complete all Mental Health Act forms help patients better understand their rights?”

  1. It makes me feel good to see somebody so thoughtful and well-written advocate for some of the most vulnerable people. What you write about had never directly affected my life, but it exists in my community and I should be more aware of it. Thank you for what you do.

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