Mullins v. Levy et al., (2009) 264 B.C.A.C. 197 (CA)

• Judge: Kirkpatrick, Chiasson and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 13, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 264 B.C.A.C. 197 (CA);2009 BCCA 6

Mullins v. Levy (2009), 264 B.C.A.C. 197 (CA);

    445 W.A.C. 197

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.050

Stephen Norman Mullins (appellant/respondent by cross-appeal/plaintiff) v. Dr. John Levy, Dr. Joelle Materi, Dr. Rua Roxanne Mercier, Dr. Soma Ganesan, Vancouver Hospital & Health Services Centre, Western Pacific Security Group Ltd., Geoff Brown, Donna Wright, Robert Coleman, Raymond Weipprecht and Cyrus Farivar (respondents/appellants by cross-appeal/defendants) and British Columbia Schizophrenia Society (intervenor) and The Attorney General of British Columbia (pursuant to Notice of Constitutional Question)

(CA033348; 2009 BCCA 6)

Indexed As: Mullins v. Levy et al.

British Columbia Court of Appeal

Kirkpatrick, Chiasson and Bauman, JJ.A.

January 13, 2009.

Summary:

Mullins voluntarily went to a hospital suffering from "panic attacks", which he attributed to stress, not a "mental illness". Mullins had prepared a written note that he was not to be committed or medicated without consent. A resident psychiatrist determined that he was in need of psychiatric assistance and set out to have two psychiatrists provide the required medical certificates to have Mullins involuntarily committed under the Mental Health Act. Security staff were told to prevent Mullins from leaving the hospital while he was being certified for involuntary committal. Mullins attempted to leave and was physically restrained. He was medicated and involuntarily committed for five days. Mullins brought an action for damages against the defendant doctors, security personnel and the hospital for assault and battery, false arrest and imprisonment and breaches of the Mental Health Act and Mental Health Regulation. Mullins claimed that he did not suffer from a "mental illness" and that his detention was unlawful. As s. 16 of the Act provided immunity from suit for parties acting in good faith and without an improper purpose, Mullins challenged the constitutionality of the Act. Mullins' constitutional challenge expanded at trial to claim that the involuntary committal and treatment provisions of the Act violated ss. 7, 8, 9, 11 and 12 of the Charter. Further, Mullins claimed that the Health Care (Consent) and Care Facility (Admission) Act discriminated against persons with mental disorders (Charter, s. 15). The Charter claims, brought on behalf of all persons suffering from a mental disorder, were brought by Mullins as a person claiming not to suffer from any mental disorder.

The British Columbia Supreme Court, in a judgment reported [2005] B.C.T.C. 1217, allowed the action in part and awarded Mullins $15,000 general and aggravated damages. Although Mullins was a mentally ill person under the Act, the resident and two psychiatrists were liable for false imprisonment, as the medical certificates were invalid where signed before conducting the required "examinations" under the Act. The security personnel and an orderly were liable for their role in detaining Mullins where there was no reason to believe that he was violent or dangerous. The hospital was vicariously liable. Claims against the remaining defendants were dismissed and Mullins was found to have lacked direct standing or public interest standing to challenge the Act and Regulation. Mullins appealed. The defendants found liable cross-appealed.

The British Columbia Court of Appeal dismissed Mullins' appeal and allowed the defendants' cross-appeal. The action against all defendants was dismissed. There was no error in finding that Mullins was mentally ill under the Act or in finding that he lacked direct interest standing or public interest standing to challenge the constitutionality of the Act and Regulation. The trial judge erred in finding that the medical certificates were invalid. The required "examination" was conducted and Mullins' detention during the certification process was lawful, as was his subsequent involuntary committal.

Civil Rights - Topic 1392

Security of the person - Health care (incl. mental health) - Committal or disposition - Mullins claimed that the trial judge erred in upholding a medical diagnosis that he was a "mentally ill person" under the Mental Health Act and in failing to find that his involuntary committal to hospital for five days violated his right to security of the person (Charter, s. 7) in a manner not in accordance with the principles of fundamental justice - The British Columbia Court of Appeal held that the trial judge did not err in finding that, at least at the relevant time, the evidence established that Mullins was "mentally ill" within the meaning of the Act - Notwithstanding that Mullins lacked standing to constitutionally challenge the Act, the court opined that the trial judge did not err in concluding that any deprivation of his liberty under the provisions of the Act was done in accordance with the principles of fundamental justice - See paragraphs 67 to 70, 90 to 95.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - Mullins was involuntarily committed and medicated under the Mental Health Act after two psychiatrists signed medical certificates that he was a mentally ill person who had to be detained for his own protection - Mullins was released after five days - Mullins claimed that he suffered panic attacks that were stress-related and was not mentally ill - As s. 16 of the Act provided immunity from suit for parties acting in good faith and without an improper purpose, Mullins challenged the constitutionality of the Act to preclude the defendants from claiming immunity - At trial, Mullins' constitutional challenge broadened to challenging the involuntary committal and treatment provisions of the Act as violating ss. 7, 8, 9, 11 and 12 of the Charter - Further, Mullins claimed that the Health Care (Consent) and Care Facility (Admission) Act discriminated against persons with mental disorders (Charter, s. 15) - The Charter claims were brought on behalf of all persons suffering from a mental disorder by a person who claimed not to suffer from a mental disorder - The British Columbia Court of Appeal affirmed that Mullins lacked standing to bring the Charter challenge - As a person who denied being mentally ill, Mullins had no direct interest standing to litigate the Charter rights of persons who did suffer from a mental disorder - Further, Mullins did not have public interest standing to bring the Charter challenge, as he failed to establish that there was "no other reasonable and effective way to bring the issues before the court" - Only someone who had a mental disorder as defined by the Act had standing to challenge the constitutionality of the Act - See paragraphs 53 to 66.

Persons of Unsound Mind - Topic 83

Detention - Lawfulness of detention - [See Persons of Unsound Mind - Topic 213 ].

Persons of Unsound Mind - Topic 213

Committal - Involuntary committal - Procedure - Medical certificates - Mullins went to a hospital suffering from "panic attacks", which he attributed to stress, not mental illness - A resident psychiatrist determined that Mullins needed psychiatric help, as he was suffering a "manic" episode which was escalating - While she set out to have two psychiatrists provide the required medical certificates to have Mullins involuntarily committed under the Mental Health Act, she alerted security staff to prevent Mullins from leaving the hospital pending the certification - When Mullins tried to leave, he was restrained, medicated and involuntarily committed for five days - Mullins brought an action for damages against the various defendants for assault and battery, false arrest and imprisonment, and breaches of the Mental Health Act and Mental Health Regulation - Mullins claimed that he was not mentally ill, so his detention was unlawful - The trial judge held that Mullins was "mentally ill" as defined under the Act, but that the medical certificates required for his committal were invalid because the "examination" required under s. 22(2) of the Act was not complete where the psychiatrists had not personally interviewed Mullins - The British Columbia Court of Appeal held that the trial judge misinterpreted "examination" by requiring a personal interview in all cases, including those where the patient's behaviour made an interview unsafe, impracticable or even impossible - In this context, "examination" meant "observing the person, reviewing the patient's chart (if there is one), reviewing the available history and collateral information, and where possible (in the sense that the person complies) and necessary (in the sense that the information to be gained is not available from other sources) conducting a personal interview with the person to be admitted. ... Once the physician has gathered sufficiently reliable information to make the diagnosis that the person is mentally disordered and in need of treatment and protection, then a court ought not lightly interfere with that decision provided it is made in good faith and with reasonable care." - The trial judge erred in finding the medical certificates invalid, because the proper "examination" was conducted - The resident's decision to have security detain Mullins pending the obtaining of the certificates was reasonable - The security personnel were not liable for forcibly detaining Mullins because they had a common law duty to protect third parties from dangerous or violent patients in the process of being certified - See paragraphs 96 to 158.

Persons of Unsound Mind - Topic 235

Committal - Involuntary committal - Grounds - Best interest of person committed - [See Persons of Unsound Mind - Topic 213 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See Civil Rights - Topic 8583 ].

Cases Noticed:

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 57].

Stinson Estate v. British Columbia et al. (1999), 133 B.C.A.C. 15; 217 W.A.C. 15; 70 B.C.L.R.(3d) 233; 1999 BCCA 761, refd to. [para. 63].

Christian Labour Association of Canada et al. v. B.C. Transportation Financing Authority et al. (2001), 156 B.C.A.C. 18; 255 W.A.C. 18; 91 B.C.L.R.(3d) 197; 2001 BCCA 437, refd to. [para. 63].

604598 Saskatchewan Ltd. v. Liquor and Gaming Licensing Commission (Sask.) (1998), 163 Sask.R. 104; 165 W.A.C. 104; 157 D.L.R.(4th) 82 (C.A.), refd to. [para. 63].

PSC Industrial Services Canada Inc. v. Ontario (Minister of the Environment) (2005), 202 O.A.C. 93; 258 D.L.R.(4th) 320 (C.A.), refd to. [para. 63].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 63].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 68].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 78].

McCorkell v. Riverview Hospital (Director) (1993), 81 B.C.L.R.(2d) 273; 104 D.L.R.(4th) 391 (S.C.), refd to. [para. 78].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 85].

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 88].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 88].

Schmidt v. Katz (1954), 13 W.W.R.(N.S.) 654 (Sask. Q.B.), refd to. [para. 97].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 133].

ter Neuzen v. Korn - see Neuzen v. Korn.

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 133].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Conway v. Fleming et al. (1999), 123 O.A.C. 107 (Div. Ct.), affd. (1999), 43 O.R.(3d) 92; 173 D.L.R.(4th) 372 (C.A.), leave to appeal denied (2000), 259 N.R. 395; 139 O.A.C. 398 (S.C.C.), refd to. [para. 147].

Lawson v. Wellesley Hospital, [1978] 1 S.C.R. 893; 15 N.R. 271; 76 D.L.R.(3d) 688, refd to. [para. 150].

Statutes Noticed:

Mental Health Act, R.S.B.C. 1996, c. 288, sect. 16(1)(f) [para. 43]; sect. 22 [para. 33].

Authors and Works Noticed:

Roach, Kent, Constitutional Remedies in Canada (2006 Looseleaf Update), p. 5-2 [para. 59].

Counsel:

N.D. Mullins, Q.C., for the appellant;

D.W. Pilley, for the respondents, Dr. John Mark Levy, Dr. Joelle Materi, Dr. Rua Roxanne Mercier and Dr. Soma Ganesan;

J.G. Dives, for the respondents, Vancouver Hospital and Health Sciences Centre, Western Pacific Security Group Ltd., Geoff Brown, Donna Wright, Robert Coleman, Raymond Weipprecht and Cyrus Farivar;

L. Mrozinski, for the Attorney General of British Columbia.

This appeal and cross-appeal were heard on October 8-10, 2008, at Vancouver, B.C., before Kirkpatrick, Chiasson and Bauman, JJ.A., of the British Columbia Court of Appeal.

On January 13, 2009, Kirkpatrick, J.A., delivered the following judgment for the Court of Appeal.