The Mental Health Review Board schedules and conducts review panel hearings for involuntary patients who want to challenge their certification. (If you want to learn more about what review panels do and how to apply for one, our rights materials may help.) Last year was the first time the board published an annual report, which I summarized in a blog post.
The board has seen tremendous shifts over the past couple of years, with a new chair implementing a restructuring plan, a move from the Ministry of Health to the Ministry of the Attorney General, and a corresponding physical move to a new office.
This year’s annual report offers a glimpse of the progress and effects of this restructuring. Here are a few highlights, along with some of my reactions.
Commitment to the Access to Justice Triple Aim
The Mental Health Review Board has endorsed the Access to Justice Triple Aim as a framework to guide their activities. According to Access to Justice BC, the Triple Aim consists of:
- improved population access to justice
- improved user experience of access to justice, and
- improved costs.
In adopting the Triple Aim, the Mental Health Review Board has also committed to measuring how well it’s meeting these goals. Improving access to justice for involuntary patients means removing barriers that can make it hard for patients to apply for, prepare for, and attend review panel hearings.
Accomplishments over the past year
The Mental Health Review Board listed the following achievements as part of its restructuring plan:
- • New Rules of Practice and Procedures;
- • New Practice Directives;
- • New Form 7 simplifying the application process for patients;
- • Constructive solutions to the majority of concerns raised in the Community Legal Assistance Society report, entitled, “Operating in Darkness: BC’s Mental Health Act Detention System”, released to the public in November 2017;
- • New patient-oriented website at www.bcmhrb.ca;
- • New training materials and hearing handbook for Board members;
- • First annual training session on procedural fairness for Board members hosted in conjunction with the Ombudsperson Prevention Initiatives Program;
- • Recruitment, orientation and training of 38 new members to the Board;
- • Completion of a Ministry initiative collocating five tribunals in a shared workplace that promotes collaborative working relationships, mobile and remote work styles;
- • Modernizing operations through technology and transitioning to a paperless office;
- • Planning, development and implementation of a new case management system. (p. 4)
Statistics on review panel hearing applications and costs
The bulk of the report covered the statistics that the Mental Health Review Board has been tracking, including the number of review panel applications, the number of hearings, the number of patients who had legal representation at their hearings and the cost per hearing.
The number of applications for a review panel hearing dropped from 2,155 last year to 2,092 this year. Without knowing the total number of certifications, I don’t know if the proportion of applications grew or decreased, but the Mental Health Review Board hopes to report per-capita data once its new case management system comes online.
A lower number of applications doesn’t necessarily mean that patients aren’t getting access to justice: if they feel that the decision to detain them was procedurally fair, it’s possible that they wouldn’t feel the need to challenge that decision. On the other hand, a drop in applications could also result from barriers to information or understanding. Qualitative research to ask patients if they know about the function of the review panel and why they chose to apply or not to apply for a hearing may uncover such barriers. (One possible barrier that I’ve mentioned in a previous post is the new Form 7, which doesn’t appear to have been co-developed or user tested with involuntary patients.)
It will be interesting to see if awareness of clinicians’ responsibilities to give patients rights information arising from the Office of the Ombudsperson’s report, Committed to Change, will have an effect on the rate of applications in the coming year.
The Mental Health Review Board seems concerned about the high cancellation rate: only 39% of applications proceeded to full hearings, and the rest were cancelled because patients withdrew their applications (37%) or were decertified before the hearing (17%). According to the report, 7% of applications were cancelled for “Other” reasons, but examples of those reasons aren’t given, and I’m curious to know what they are.
Like a drop in applications, cancellations could suggest an access-to-justice problem—for example, patients feeling pressured by their treatment teams to cancel their hearings—or they could happen as patients’ respond to treatment or change in their understanding of the function of a review panel hearing. Cancellations and postponements are costly, and the Mental Health Review Board intends to start collecting data on reasons for cancellation (see “New case management system” below).
Sixty-seven percent of applicants had legal representation at their hearings, up from 63% last year. The Mental Health Review Board says that this trend is “moving in the right direction,” but I’d like to find out why a third of all applicants are still going unrepresented, especially since funding from the Legal Services Society now ensures that anyone who asks for representation will receive it. Are patients making an informed choice in declining representation, or do they face barriers to understanding what a representative can do for them? Qualitative research could help answer this question.
The report also gives statistics on the decision outcomes from represented patients’ hearings—whether they were detained, not detained, or “other.” Again, “other” isn’t explained in the report. I’d like to learn what other outcomes are possible from a review panel hearing.
The report doesn’t give the decision outcome for unrepresented patients, which is a puzzling omission. Should we infer that unrepresented patients all stay hospitalized?
According to the report,
The Board is required by statute to review the treatment records of any patients on extended leave who have been involuntarily detained for more than one year, and who have not requested or had a review panel hearing during that period. The Board Chair conducts a mandatory review of the patient’s records to determine whether to order a hearing. The screening threshold is whether there is a reasonable likelihood that the patient would be discharged if a review panel hearing was held. This provides a statutory guarantee that the file of each involuntary patient will be reviewed on an annual basis. (p. 6)
The increase in the number of reviews from 158 last year to 243 this year is an encouraging trend: mandatory reviews offer patients an additional safeguard that reduces the chances that they will remain certified indefinitely if they stop meeting the criteria for involuntary hospitalization. (See our rights materials to learn more about the criteria.)
Earlier on, the report also stated that one of its goals over the next year would be “Improving the quality and transparency of the mandatory review process” (p. 1). The commitment to transparency is welcome: I don’t know what process the Mental Health Review Board uses to gather data on who’s on extended leave and what information the chair uses to assess the likelihood that a patient would be discharged. As the Office of the Ombudsperson reported in Committed to Change, patients’ records, even when they’re in hospital, are often incomplete. Patients on extended leave may have even spottier records: renewal certificates might be placed in a patient’s file but not reported to the health authority or province. Like the certificates reviewed by the Office of the Ombudsperson, renewal certificates may not have the reasons for a patient’s continued certification clearly written. Deciding whether to order a hearing for a patient based on those documents alone may not give an accurate picture of a person’s function.
More information about how records are requested and reviewed would help increase the accountability of this process. For example, just as the Mental Health Review Board has issued new Rules of Practice and Procedure for the conduct of review panel hearings, it could consider publishing the process it follows to conduct mandatory reviews.
In future annual reports, I’d like to see not just the number of cases reviewed but also the number referred to a review panel hearing.
The cost per hearing increased slightly from $1,873 to $1,916 this year, while the cost per application rose from $938 last year to $1,157. The Mental Health Review Board attributes this increase in cost per application to its efforts to increase access to justice. One of their initiatives has been to give patients information about how to appeal their review panel decision, and “for the first time in decades, two patients appealed decisions to the BC Supreme Court.” (p. 11) Giving patients information about their legal options after the review panel decision will likely help foster a sense of procedural justice and increase patient satisfaction with the review panel process.
New case management system
The report says that the new case management system is expected be launched this month (August 2019) and implies that the system will begin tracking statistics on:
- • Cost per case by geographic location
- • Number of applications/hearings per capita of involuntary patient population
- • Hearing cancellation rate by facility or health authority
- • Patient reasons for cancellation/postponement
- • Patient discharge rate by facility or health authority
- • Time to hearing/resolution for cases heard
- • Legal representation on outcome of cases heard (p. 12)
I’m most interested in a statistic that isn’t explicitly in this list: applications by facility. Facilities with especially low application rates may indicate a breakdown in the communication of rights information to patients and may be candidates for targeted training, such as our team’s information sessions for clinicians.
I look forward to next year’s report, when we’ll see the fruits of this new case management system. I’m especially curious to find out why patients are cancelling or postponing their hearings and hope that the Mental Health Review Board has chosen to collect that information in a way that lets patients give their reasons candidly and in confidence.
Areas for research
I applaud the Mental Health Review Board’s commitment to transparency—a welcome change from the decades of an almost complete lack of information about the board’s operations. I hope that the statistical reporting will get more detailed in future years.
That said, statistics can only tell us what is happening—not why it’s happening. As I mention throughout this post, I see several areas where qualitative research, such as interviews with patients, can shed light on the reasons behind the numbers. Partnering with a qualitative researcher could allow the Mental Health Review Board to confirm if it’s truly succeeding at improving involuntary patients’ access to justice.
Further, the second objective in the Triple Aim, to improve user experience, must be evaluated separately, and the metrics published in the current annual report don’t address this point. A positive user experience usually comes from the user’s perception of procedural fairness rather than on the outcome, so the numbers of people discharged via review panel shouldn’t be considered a proxy for measuring involuntary patients’ satisfaction, which can only be assessed by asking them directly. I hope the Mental Health Review Board is developing a survey or interview to perform this evaluation or will consider collaborating with a researcher to do this work and publish the findings.