The Supreme Court of British Columbia has ruled that the Fraser Health Authority violated a woman’s Charter rights by detaining her against her will for almost a year and denying her access to a lawyer.
In her ruling on Feb. 22, Justice Lisa Warren concluded that the 39-year-old Indigenous woman, identified only as A.H., had her rights under section 7 of the Canadian Charter of Rights and Freedoms violated by Fraser Health, “placing her in mechanical restraints, subjecting her to visitor, phone and internet prohibitions and restrictions, and denying her the ability to leave the facilities for fresh air.”
Though the health authority will not face legal consequences, the judge wrote that acknowledging A.H.’s Charter rights were violated “will go some way to restoring her dignity” and deter Fraser Health and similar organizations “from exercising their authority in an unconstitutional manner in the future.”
In her judgment, Warren said at first the health authority had justifiable reasons to keep the woman at three of its hospitals in Delta and Surrey from October 2016 to September 2017.
However, the judge said Fraser Health not only failed to apply for a court order authorizing support services for A.H. in a timely manner, but also did not spell out why she was being detained or give her an opportunity to hire a lawyer. Because of that, Warren said, the health authority had detained the woman illegally.
“There is no doubt that on Oct. 6, 2016, FHA staff had good reason to believe that A.H. had been abused and that she was at risk of serious harm,” Warren wrote in her ruling.
“FHA’s failure to [get a court order] and its decision to instead detain A.H. for nearly a year, without providing her with clear and written reasons for the detention or the opportunity to obtain legal advice, under conditions that significantly violated her residual liberty, is inexplicable.”
Investigations by Fraser Health prior to the detention in October 2016 determined that A.H. was subjected to physical and sexual abuse by her mother.
Staff came up with a plan to take A.H. shopping for new clothes as the ones she had at her mother’s were not clean. Instead of taking her back home, staff admitted her to Delta Hospital with the reasoning that “there was an unacceptable risk to her safety should she be permitted to return home to her mother,” according to Warren’s judgment, released on Monday, Feb. 25.
“Upon A.H.’s admission to Delta Hospital, A.H. disclosed to a hospitalist 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.”
Just as soon as A.H. was taken to hospital, she tried to escape and go back to her mother’s home. She tried to escape three times from Delta Hospital between Oct. 11 and Oct. 17.
“Each time, she returned to her mother’s house and each time the police returned A.H. to hospital against her will,” Warren wrote.
“Following the third escape from Delta Hospital, A.H. was involuntarily admitted to [Surrey Memorial Hospital] instead of Delta Hospital because a secure ward was available in Surrey.”
Fraser Health argued it had authority to detain the woman under the Adult Guardianship Act, which says a designated agency such as the authority has the power to detain an person against their will to “prevent serious physical or mental harm to the adult” and “the adult is apparently incapable of giving or refusing consent.” That includes “any emergency measure that is necessary to protect the adult from harm.”
The woman stayed at Surrey Memorial until June 23, 2017, at which point she was transferred to Timber Creek Tertiary Care Facility. Until then, she was not allowed to use the phone and had restrictions placed on her internet use because she had called a cab during one of her escapes. In addition, staff did not allow her to leave the building.
“She was denied requests to go outside for fresh air,” the report goes on.
“She was frequently observed crying, telling staff, ‘I feel like I’m in jail.’ On at least one occasion, she was physically restrained with mechanical restraints that tied her to the bed. At other times, she was told she would be so restrained if she did not agree to stay in the hospital. At times, she was strongly encouraged, if not pressured, to take medication, including for sedation, in the face of her protestations.”
Because of her “do not acknowledge” designation, staff denied her presence at the hospital to anyone calling or trying to visit her. It wasn’t until January 2017 that staff acknowledged A.H. was a patient at Surrey Memorial and allowed her to receive visitors aside from First Nations health and social services staff.
“In March 2017, A.H. was permitted to leave the ward within the SMH grounds while accompanied by a social worker or FN staff member,” Warren went on.
“In May of 2017, she was permitted to leave the ward during the day with one-on-one support whenever she wished. A comfort fund was established so she could make purchases during her outings. Staff noted that she ‘was very excited about … getting fresh air and having access to small amounts of money for comforts’.”
Upon transferring to Timber Creek in June 2017, A.H. was allowed to leave as she desired to go to addictions counselling and community events. Her boyfriend and her kids also visited her regularly.
Despite repeatedly telling Surrey Memorial staff she wanted to hire a lawyer, Warren noted, A.H. said they told her they could not help. On July 11, 2017, staff gave her contact information for the Community Legal Assistance Society and a day later she spoke to a lawyer for the first time since her initial detention.
“There are staff notations in A.H.’s medical records indicating that on March 16, 2017, A.H. was upset about the constraints imposed on her and said she was going to hire a lawyer,” the judge noted.
“On June 12, 2017, she said she wanted a lawyer to help her ‘get out of Adult Guardianship;’ and, on June 26, 2017, she asked about access to a lawyer to challenge her detention.”
On Aug. 2, 2017, A.H. and her lawyer, Laura Johnston, filed a petition alleging Fraser Health was wrong in detaining the woman under an “emergency measure” for almost a year without a proper court order.
As A.H. and her lawyer waited for her petition to be heard in court, Fraser Health and Community Living BC applied for an order which would have authorized the health authority to keep A.H. at Timber Creek until Sept. 30, 2017, and for the latter to take over the services in Abbotsford afterwards.
Judge Robert Hamilton granted the order but found it too cumbersome for A.H. to relocate to Abbotsford, ordering instead that CLBC find the woman a residence in Richmond, Delta or Surrey. Hamilton ruled that 11 months after A.H.’s initial detention, her case was not an emergency, but that it was still necessary for her to be under Fraser Health’s authority as a protective measure.
A.H. and her lawyer appealed that decision, saying it was Hamilton’s opinion that continued detention was needed to protect her from harm and did not pertain to the actual legality of the detention. In Warren’s judgment, she noted that any decision by Hamilton were not binding upon her.
Warren concluded that A.H.’s Charter rights were violated through arbitrary detention; by not promptly giving her written reasons for her detention; by not allowing her to contact a lawyer; by Fraser Health not seeking a court order for her detention; and by depriving her of “her residual liberty and security of the person” by physically restraining her and restricting her visitation and communication rights.