This video resource is part of The Recordings Project, a project of HereToHelp” and the BC Schizophrenia Society.

Gerrit Clements, JD, is a practising health lawyer and teacher who has given legal advice to health care providers and governments since 1974. He was involved in the planning and writing of all B.C. legislation on consent, substitute decision-making, advance care planning and adult guardianship for 28 years. See below for Mr. Clements’ full bio and for a more detailed overview of what is covered in the video.

 

 

or listen directly from the Vimeo site here.

Gerrit Clements Bio

Gerrit Clements, JD, is a practicing health lawyer and teacher. He is an adjunct professor at the University of Victoria and the University of Northern British Columbia where he teaches health care law, and ethics and law in nursing, respectively. He also teaches health law at the university of the Fraser valley and at Vancouver community college as well as mental health law at Vancouver Island University.

He has given legal advice to health care providers and governments since 1974. From 1981 to 2007 he was senior legal advisor to the ministry of health. In that capacity he gave legal advice to the bc government with respect to the mental health act, including all court challenges and significant amendments. He was responsible for all editions of the guide to the mental health act from 1996 to 2005.

Mr. Clements was involved in the planning and writing of all B.C. legislation on consent, substitute decision-making, advance care planning and adult guardianship for 28 years. Much of his knowledge and experience in this respect is collected in the 2012 annotated British Columbia incapacity planning legislation, adult guardianship act and related statutes.

For 40 years, he has provided interpretations of these and other health laws to health care professionals as well as relevant education at over three thousand conferences and workshops across the country. He was a member of the minister’s advisory committee on ethical issues in health care in B.C. from 1993 to 1998. He is a member of the provincial forum for clinical ethics support and coordination (2010-present) and a member of the central Okanagan clinical ethics committee (2007-present).

Summary of Questions and Topics Covered in the Video

Note: The following summaries (along with the video text summaries) are paraphrased from the video and were not written by Mr. Clements. For the clearest, most detailed and accurate version, please refer to Mr. Clements speech in the video.

  1. Explain to me what designated facilities are and what the criteria are for involuntary admission.
  2. What would happen if a person arrives at a facility without a ‘pink’ (form 4)?
  3. “Clarification of the term ‘protection’ in BC law, the McCorkell Decision”.
    Summary: BC Supreme court clarified that admitting and treating a person under the mental health act is constitutional, in accordance with the principles of fundamental justice. The term ‘protection’ was clarified by the court to include protection from likelihood of physical harm to themselves or others, and additionally to include financial harm, vocational harm, family harm and social harm.
  4. This is going to be very different for physicians trained in other countries or provinces. Can you summarize what is different in practice for those physicians?
    Summary: BC’s criteria for involuntary admission include not just physical harm, but also financial, vocational, family and social harms. Each are sufficient on their own to certify a person who requires protection from them.
  5. If a facility is not designated under the mental health act and there is an emergency, what can they do to help that person?
    Summary: If a person is certified in a non-designated facility, they need to be transferred to a designated facility as soon as is humanly possible. For example, police are permitted to take a person to be examined at any medical facility, even if not designated, but from there the patient must be transferred to a designated facility, who must accept them.
  6. The subject of what constitutes an examination has been clarified in the courts. Can you describe that?
    Summary: An examination can include any one of: observing the person, reviewing the chart, reviewing the available history and collateral information, conducting a personal interview where possible or the information isn’t available from other sources.
  7. Does the freedom of information and protection of privacy act allow sharing of information with family members? Under what conditions is that allowed?
    Summary: Any information that is necessary for the follow up care for providers to know, regardless whether they are paid providers or family / friend caregivers, they can be disclosed. Any information can be disclosed by the CEO of the health authority or their delegate to prevent harm from happening to a person or persons. If you are allowed to disclose information to prevent harm, then ethically, you should.
  8. Can you speak to considerations around discharge, particularly when there is a risk that the person won’t follow the treatment recommendations after discharge, and you’ll like to minimize the possibility that they’ll again be detained under the act?
    Summary: There are three bodies that can authorize discharge from hospital or extended leave: physicians (usual case), review panel or the court. These decision makers are required to consider any patterns of past hospitalization and whether there is a likelihood that the person will discontinue treatment, relapse and require hospitalization again. It’s not about whether the person meets the conditions under the act now, but whether they have a history of going off treatment and getting ill again when discharged.
  9. Can you explain how conditional leaves / extended leaves work and how that can be used as an option? (similar to “community treatment orders” in other provinces).
    Summary: Persons on conditional or extended leaves from hospital must continue with treatment in the community, must live in an environment that is conducive to living safely in the community.
  10. What are the restrictions on how long a leave can go on and how is that reviewed?
    Summary: The process is the same for extended leave as for when someone is in hospital under involuntary admission, with reviews at one month, 3 months, before end of 5th month, six further months. They will also have to see their physicians and case worker while they are on leave. If at any point they are not doing well in the community, then they can be recalled to hospital (usually by a physician in the community) or the conditions of the leave can be changed.
  11. What are the discharge conditions when ending an extended or conditional leave? Is there ever a duty to continue the leave even if the person is doing well?
    Summary: Reviews of conditional leaves must also look at whether the person is likely to discontinue treatment and have a relapse if the leave is ended, based on past experience.
  12. Please describe the police authority to take a person into custody and to a physician for an examination under the act, focusing on key issues for a physician to understand?
    Summary: If the police believe that a person apparently suffers from a mental disorder, and they believe their safety or those of others may be at risk, they can take them to a physician for an examination. This includes risk due to self neglect caused by their illness. A warrant is not required and the police are allowed to rely on information provided by others. When this process fails, anyone, such as a family member or friend, can speak to a provincial court judge and ask for a court order to have the police find the person and the hospital must admit and examine them for 48 hours.
  13. What are the issues around notice to relatives?
    Summary: The patient and a close friend or relative designated by the patient must be informed of the patient’s rights, regardless of whether the patient is likely to understand. This obligation overrides the patient’s right to privacy, in that someone MUST be told but the patient can designate which relative or friend is notified. A relative or friend must be notified when the patient is admitted, discharged, or a review panel hearing is scheduled.

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