Everything you want to know about changes to the Mental Health Act in Alberta.

• Author: Marshall, Mary

The Mental Health Amendment Act, 2007 received Royal Assent on December 7, 2007, and was proclaimed into force in stages. (1) The first set of amendments was proclaimed into force on September 30, 2009. (2) The remaining amendments were proclaimed into force on January 1, 2010. (3) This article will provide an overview of the key amendments, as well as a brief explanation of the reasons for the amendments.

The three main areas covered by the amendments are as follows:

* changes in the criteria to become a formal patient;

* implementation of community treatment orders (CTO's); and

* disclosure of information to a family doctor.

These amendments have resulted in changes to the role and mandate of the Mental Health Patient Advocate and of the Review Panels.

1. Changes in Criteria to Become a Formal Patient

   The criteria have undergone a substantial revision. As of September 30, 2009, a person must meet all three of the following criteria in order to be admitted and detained as a formal (involuntary) patient:

   * suffering from a mental disorder; and

   * likely to cause harm to that person or others, or to suffer substantial mental or physical deterioration or serious physical impairment; and

   * unsuitable for admission to a facility other than as a formal patient. (4)

   The first and third criteria remain the same; as well, the definition of "mental disorder" has not changed. Mental disorder is defined as "a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary demands of life." (5)

   The second criterion has undergone significant changes. Formerly, the person must have been "in a condition presenting or likely to present a danger to the person or others." (6) As of September 30, 2009, the person must be "likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment." (7) The changes are meant to allow for earlier intervention when a person's condition is deteriorating. The amendments respond to concerns raised by families and clinicians that the former criteria only allowed for intervention after the person became dangerous. Criteria based on danger have been replaced with those based on "harm." As well, the categories of harm are not restricted; as such, the new criteria could be interpreted as applying to different types of harm, including physical, emotional, and financial. There is no reference to the immediacy or imminence of the harm. Finally, criteria based on deterioration or impairment have also been added. Under the previous criteria, in order to be admitted as an involuntary patient in Alberta, the patient had to present or be likely to present a danger to himself/herself or others. The interpretation of the Mental Health Act provisions was further constrained by case law. "Danger" was interpreted to mean a serious risk of physical harm, rather than mental or emotional harm. As well, there had to be some immediacy to the danger. This interpretation persisted despite legislative amendments that were intended to make the criteria less restrictive. The development of the case law was summarized in the Court of Queen's Bench decision in Russell v. Calgary General Hospital as follows:

   This court in M. v. Alberta (1985), 63 A.R. 14 (Q.B.) considered the requirement of danger to oneself or others. Justice McDonald found this to mean a present or imminent danger. A danger which might arise in a matter of weeks was insufficient. Despite a subsequent amendment to the legislation to include the words, "or likely to present a danger to himself or others", this court has continued to require evidence of imminent risk of harm (See Wurfel v. Alberta Hospital (Edmonton), [1999] A.J. No. 868). (8) The purpose of changes to the involuntary committal criteria was explained as follows during second reading of what was then Bill 31:

   Mr. Speaker, the first key amendment will revise the involuntary admission criteria. The current Mental Health Act allows for the apprehension, examination, and involuntary admission of personswho are, one, "suffering from mental disorder"; two, are unwilling to be admitted voluntarily; and, three, are "in a condition presenting or likely to present a danger to [self] or others." The courts in Alberta have interpreted the last criterion to mean imminent physical danger. Family members of individuals with mental illness express concerns about this situation. They are also concerned that their loved ones often do not receive the treatment they need until they reach the point of being a danger to themselves or others. In response to these concerns the admission criteria have been amended to say "likely to cause harm to the person or others" so that earlier intervention is permitted. The criteria have also been amended to include the concept of "substantial mental or physical deterioration" on the part of the patient, which again permits earlier intervention. Mr. Speaker, this is very, very important. This is something that, certainly, my constituents have been asking for, and in talking to other MLAs, many constituents across Alberta are asking for changes to the Mental Health Act that will allow earlier intervention. (9) In the majority of other Canadian jurisdictions, the criteria for involuntary admission are less restrictive (e.g. the Ontario criteria include "likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person"). (10)...