The charter rights of a woman detained at Delta Hospital and other facilities for almost a year had been “egregiously and repeatedly violated” by the Fraser Health Authority, a B.C. Supreme Court judge has ruled.
In a recent decision released this week, Justice Lisa Warren determined the detaining of the woman, identified in court documents as A.H., against her will during 2016 and 2017 was unacceptable.
“Notwithstanding these clear expressions of a desire for legal help, A.H. was not given the opportunity to actually speak to a lawyer until July 12, 2017,” Warren noted in her reasons for judgement.
“Again, A.H. was involuntarily detained for more than nine months before she had the opportunity to speak with a lawyer regarding her detention. She was not informed of her right to counsel without delay, she was given no reasonable opportunity or assistance to exercise that right, her ability to access counsel was actively interfered with, and her express assertions about wanting a lawyer were ignored…”
In October 2016, FHA staff determined for her own good to detain the 39-year-old, described as cognitively impaired as well as having been sexually abused by her mother. She also has two children who are in the care of the Ministry of Children and Families.
Noting the woman of First Nations decent was vulnerable, and will likely continue to require support and assistance, Warren said the FHA had justifiable reason to legally detain the woman under the Adult Guardianship Act, but the health authority didn't apply for a court order and never gave her reasons for her detainment in writing.
Even though she asked for one, she was told she couldn't speak to a lawyer during her detainment at Delta Hospital, where was sometimes restrained to her bed. She had escaped on several occasions, only to be returned by police who told staff they couldn’t detain her unless they applied for a certificate of involuntary admission under the Mental Health Act. It would allow them to detain her for 48 hour and staff applied, but kept her for months afterward. She was eventually transferred to a secure ward at Surrey Memorial Hospital.
"She was frequently observed crying, telling staff, 'I feel like I'm in jail,'" Warren wrote.
Hospital staff didn't even acknowledge she was even a patient and allow visitors until January 2017, when she could see her kids. The woman was later moved to Timber Creek Tertiary Care Facility in Surrey.
She was finally allowed to contact a lawyer in July 2017 and her lawyer filed a petition against Fraser Health in August of that year.
After that, the FHA applied for a court order under Adult Guardianship Act to keep the woman at Timber Creek and a provincial court judge granted the health authority that order, but also ruled the FHA needed to find a support and assistance plan with a residential placement. In total, she spent 11 months and 13 days detained.
Noting Fraser Health detained an adult, against her will, for nearly a year, without any independent oversight, Warren found that the health authority violated the woman’s charter rights from October 2016 to September 2017.
“The detention decision deprived A.H. of her liberty, the most fundamental of her rights. The consequences could scarcely have been more serious. It is apparent that A.H. did not understand the basis for her detention or the reasons for it. She expressed, multiple times during the course of the detention, confusion about her ongoing detention, repeatedly asking why she could not go home.”
Warren also noted if Fraser Health thought it was necessary to detain A.H. for her safety pursuant to the AGA, it should have applied promptly for an order and ensured that she was able to exercise her right to counsel and right to have the validity of her detention determined.
Fraser Health has not issued a comment on the ruling.
