B.C.’s Fraser Health Authority (FHA) violated a woman’s fundamental rights to liberty and freedom from arbitrary detention when it held her for 11 months without telling her why, BC Supreme Court has ruled.
The FHA detained the woman, called A.H. in court documents, involuntarily without judicial authorization or any independent oversight from October 6, 2016, to September 22, 2017, said a ruling dated February 22 but posted March 11.
“FHA detained an adult, against her will, for nearly a year, without any independent oversight,” Justice Lisa Warren ruled. “This was a severe interference with A.H.’s most fundamental rights.”
A.H. was purportedly held under B.C.’s Adult Guardianship Act.
The FHA maintained in court proceedings the legislation allowed it to hold a person without their agreement if they were being abused or neglected, incapable of giving consent or where in order to preserve their life or property.
The court described A.H. as a vulnerable woman with cognitive impairments, mental health issues, and a history of substance abuse, family violence and sexual abuse. She was diagnosed with fetal alcohol syndrome in April 2017.
Until her detention, she was residing primarily at her mother’s house with her mother and other members of her family. She has two children who are in the care of the Ministry of Children and Families.
A.H.’s involvement with FHA began in 2013 with reports she was being abused. Later reports indicated she was pressured to drink alcohol and take drugs, and that she didn’t have clean clothes or sufficient food.
FHA had begun preparing plans to take care of A.H., the court said.
On October 6, 2016, staff picked her up and took her to Delta hospital where she disclosed that “she had been forced to perform sex acts by her mother in exchange for drugs, and that her mother gave her drugs to ensure her compliance,” the court said.
She was held under the act and given no reasons. She escaped twice that month, returning to her mother’s house where she was again apprehended and returned to hospital by police against her will, the court said.
Following a third escape, A.H. was taken to Surrey Memorial Hospital but, said the court, there was no evidence certifiable under the Mental Health Act.
No court order was applied for to continue the detention and, the court said, no reasonable explanation was given for that omission.
She was physically restrained and encouraged or even pressured to take medication, the court said.
“She was frequently observed crying, telling staff, ‘I feel like I’m in jail,’” the court said.
A.H. was also subject to a “do not acknowledge” protocol. “If anyone called or attended the hospital, the staff would deny her presence there,” the court said.
She was then transferred to Timber Creek Tertiary Care Facility for mental health and substance use issues and was allowed visits from her family and boyfriend.
For the first nine months of detention, A.H. asked to speak with a lawyer but was not allowed to do so. She wanted to get out of the legal guardianship situation.
It was only on July 7, 2017, that A.H. spoke with a lawyer who began the proceedings that resulted in the current ruling.
The court proceedings began September 7. On the same day, FHA and Community Living British Columbia filed an application in provincial court for a support plan for A.H. An assistance plan was approved November 6, 2017.
Warren noted FHA has now provided direction to staff about procedures to advise detainees of a right to a lawyer.
Spokeswoman Tasleem Juma said FHA is aware of the judgment.
“We are currently reviewing the decision and considering our next steps,” Tuma said. “It would be premature for us to comment any further at this time.”
Warren noted a scarcity of legal decisions around such issues.
However, the B.C. Office of the Ombudsperson in a report released March 7 brought similar issues to light.
A study by ombudsperson Jay Chalke’s office, of people involuntarily admitted to provincial psychiatric facilities, found they had no or incomplete paperwork in almost three-quarters of cases.
Some five admission forms are legally required for completion when a person is involuntarily committed. Chalke’s report found the completion rate of those forms was about 28 per cent.