Mercedes Perez successful in precedent setting hospital transfer appeal

Mercedes Perez successfully represented a patient detained at the Waypoint Centre for Mental Health Care in a hospital transfer appeal. The patient had been civilly detained at Waypoint’s maximum secure unit pursuant to provisions in Ontario’s Mental Health Act. He applied to the Consent and Capacity Board for a transfer to the North Bay Regional Health Centre. The North Bay hospital objected to the proposed transfer.

After carefully considering the evidence, the Board ordered the patient’s transfer but the North Bay hospital appealed primarily on the basis that its internal hospital policy prohibited civilly detained patients from occupying designated “forensic” beds.

The appeal was heard in the Superior Court of Justice in North Bay and marked the first appellate consideration of the Board’s transfer powers granted by way of legislative amendment in 2015. In dismissing the appeal, the Court agreed that internal hospital policies respecting the designation of beds cannot oust the Board’s jurisdiction to order patients transferred between hospitals.

The Court held:

The legislative scheme now provides the Board with the jurisdiction that it lacked before the P.S. v. Ontario case, namely to “supervise the security level, privileges, therapy and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests”. It would defeat the legislative intent if a Hospital could overcome it by adopting an internal policy. If the legislature had wished to make the consent of the facility a prerequisite to transfer, this could have been done […]

The Board now has authority to override discretionary Hospital decisions respecting transfer, security levels, privileges, leaves of absence, access to the community, and access to vocational and rehabilitative programming. To restate it succinctly, a designated Schedule 1 psychiatric facility, like North Bay, cannot opt out of the Mental Health Act detention and the Board’s review scheme by enacting an internal Hospital policy.

The decision of the Honourable Justice David J. Nadeau can be read here at this link.