Civil Commitment and the "Unsuitable" Voluntary Patient

Introduction Under Alberta's Mental Health Act, three requirements must be satisfied before someone may be detained in psychiatric facility as an involuntary (formal) (1) The patient must be (1) suffering from disorder as defined in the Act, (2) likely to cause to self or others or to suffer substantial or physical deterioration or serious physical impairment, and (3) to be admitted to (or continue at) the psychiatric facility other than as formal By comparison with its two neighbours, the third criterion has received very little attention--from legislators, judges, academics, and (perhaps) even in practice. For example, the two other criteria have been the subject of important legislative changes over the years. The recent amendments to the Mental Health Act have focused attention on the second criterion, and in particular, the shift from danger to harm and mental or physical deterioration. (2) Likewise, the definition of the first criterion--mental disorder--was the subject of significant amendment when the Act last underwent substantial revision (in 1988), with the previous definition--lack of reason or lack of control of behaviour (3)--being changed to the current definition: 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. (4) By contrast, the third criterion remains exactly the same as it was when the Mental Health Act was first enacted in 1972--unsuitable for admission to facility other than as formal patient. (5) Also, when compared to the amount of case-law dealing with the first two criteria, there is very little judicial discussion of the meaning of the third criterion. Hence, the purpose of the present article is to discuss the third criterion--what does it mean to be unsuitable to be in psychiatric facility other than as formal patient? The Unwilling Patient As Peter Carver has pointed out, (6) the underlying purpose of the third criterion is to ensure that certification for involuntary hospitalization occurs only in the last resort, where an individual cannot be admitted to psychiatric facility on voluntary basis. The most obvious (and most common) example of this being satisfied is where the individual refuses to be admitted or to stay voluntarily. By definition such person is to be at the facility other than as formal This is recognized by case-law, (7) and it is also why patients at Review Panel hearings are typically asked what they will do if their certificates are cancelled by the panel. A response which indicates that the patient intends to leave the hospital if the certificates are cancelled generally would be taken as satisfying the third criterion for certification. (8) Conversely, however, where the patient expresses willingness to remain at the hospital voluntarily, this does not necessarily mean that the third criterion is absent. The patient's statement must be assessed in all the circumstances, including factors such as insight, judgment, impulsivity, and history of leaving the hospital contrary to medical advice. This assessment may well lead to the conclusion that the patient's stated willingness to remain as voluntary patient is not reliable, (9) and hence the third criterion is satisfied. The Mentally Incompetent Patient Another situation where person would be for hospital admission (or continuation) other than as formal patient is where that person lacks the capacity to consent to being voluntary Confinement within hospital constitutes the tort of false imprisonment unless it is done with the consent of the patient, (10) and as with all cases of consent, the defence is valid only if the person giving the consent has the capacity to do so. …

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