From Alberta’s Health Advocate: changes to the Mental Health Act and you

Last fall, the Alberta Legislature passed an amended Mental Health Act, with significant changes to your duties and responsibilities as a physician when you have a patient formally detained under the Act. Recently, the Court of Queen’s Bench declared sections of the Mental Health Act unconstitutional, having upheld a lower Court’s decision commonly known as the JH decision.

The Court of Appeal granted the government until March 31, 2021, to proclaim a new definition of mental disorder, but all other legally-required changes were proclaimed on Sept. 30, 2020, and are now in effect.

The new definition of “mental disorder” is narrower and excludes those with a persistent mental disorder caused solely by an acquired or congenital irreversible brain injury. However, those with an underlying mental illness in addition to the acquired or congenital brain injury may still be detained when they meet the four criteria required to issue an admission certificate.

The addition of the fourth criterion ensures detention applies only to people who can benefit from psychiatric treatment. Treatment is defined as anything done for a therapeutic, preventive or other health-related purpose and now includes mandatory implementation of a treatment plan by the second month of admission. As part of this change, the patient can request and have ready access to their treatment plan. There is also more definition around the term “harm” now embedded throughout the Act.

Amendments to the Act also provide patients with automatic access to their own relevant medical records, to prepare for Review Panel hearings and appeals to the courts, free of charge and without having to apply through a formal process under the Health Information Act. Facilities will need to develop policies and procedures to ensure patients are awarded this timely access.

Review panels have also been provided with increased authority, including the ability to request a second psychiatric opinion and order a Community Treatment Order (CTO) where appropriate.

Other key changes:

• Patients have 30 days to appeal Review Panel decisions to the Alberta Court of Queen’s Bench (increased from 14 days) – s. 43.
• “Nurse practitioners” (NPs) and “qualified health professionals” (QHPs) are defined in the
• QHPs (defined) are NPs, physicians and psychiatrists. Allows NPs to perform assessments and evaluations and supervise people who are being treated in the community.
• NPs are qualified to safely and effectively perform many functions under the Mental Health Act.
• Physician oversight is maintained where necessary for patient care and safety.
• Video conferencing can be used at designated facilities and secure locations.
• Role of the Advocate is expanded to ensure patients have information about their detention and legal rights.
• Advocate’s Office can provide some information to the patient’s “nearest relative”, restructured to enable wider use of discretion and flexibility to address issues for patients, whether or not a formal complaint has been made to the Advocate.

Physicians are encouraged to review the changes to the Mental Health Act and its regulations. If you have questions, please feel welcome to inquire to our office.

Additional resources:

• Mental Health Act
  • More information on the Mental Health Act
• Patient Advocate Regulation