By Amy Smart, The Canadian Press
VANCOUVER — A woman’s rights were violated when she was held in hospital for almost a year without being given written reasons for the detention or an opportunity for legal advice, a British Columbia Supreme Court judge has ruled.
In a ruling released this week, Justice Lisa Warren describes the 39-year-old woman as “highly vulnerable,” who suffers from cognitive impairments, mental health issues and fetal alcohol spectrum disorder.
The ruling says staff at the Fraser Health Authority had good reason to believe the woman, identified only as A.H., had been abused and was at risk of serious harm when she was taken into care in October 2016.
But the judgment says there is also “no doubt” the authority could have promptly applied for a court order authorizing the provision of support for her.
The authority’s “failure to take that step 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,” the decision says.
The Supreme Court ruling says the authority had received several reports that A.H. was being physically and sexually assaulted by her mother, pressured to drink alcohol and take drugs, and that she did not have enough food or clean clothing.
On Oct. 6, 2016, a First Nations Health and Social Services staff member invited A.H. to go shopping, but took her to Delta Hospital instead of taking her home.
A.H. told 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, the ruling says.
The authority told the court that it held the woman as an emergency measure to protect her and told her verbally that she had to remain in hospital for her safety, but no written reason was ever provided.
“A.H. did not want to be detained,” the ruling says.
She ran away from the hospital three times and returned to her mother’s home. After her last escape, A.H. was transferred to Surrey Memorial Hospital, where she was kept in a “secure ward” for almost eight months. She was then transferred to an adult mental health facility across the street.
A doctor’s assessment in November 2016 said A.H. “does not understand why services are being offered,” and that even “at the simplest level, she can not link the provision of support to concerns about her safety.”
Despite concluding she was incapable of making decisions about the support she needed, the authority failed to ask the court to apply an assistance plan without her consent, Warren says in her ruling.
While A.H. was detained she was subject to “significant constraints,” and her requests to go outside for fresh air were denied, it says.
“She was frequently observed crying, telling staff, ‘I feel like I’m in jail.’ ”
She was tied to her bed with mechanical restraints at least once and was “pressured” to take medication, including for sedation, and then banned from using a phone or the internet when she called a taxi to return home, the judgment says.
The woman was also subject to a “Do Not Acknowledge” protocol, so that if anyone called or attended the hospital, the staff would deny her presence there.
She was gradually allowed visits with her children, could walk the grounds of Surrey Memorial Hospital under supervision, and allowed to write letters to her family and boyfriend, starting in January 2017.
But the ruling says in the nine months after her initial detention, she was not told she could speak with a lawyer and was given a highlighted copy of the Adult Guardianship Act, but said she wasn’t given enough information to understand exactly why she was detained.
When she told staff she was unhappy with her detention, she was told “there was no way to challenge” it, the ruling says.
Fraser Health Authority said Wednesday that it was reviewing the decision and considering next steps.
On Sept. 22, 2017, a provincial court judge granted the health authority an order requiring it to provide support and assistance until the end of the month, to be followed by a Community Living B.C. support plan.
In that decision, the judge said he didn’t believe A.H.’s situation could fairly be considered an emergency 11 months after the “real emergency” presented itself, but that the authority’s continued care was necessary to protect her from harm.