the british columbia review panel: factors influencing decision-making

International Journal of Law and Psychiatry, Vol. 23, No. 2, pp. 173–194, 2000Copyright © 2000 Elsevier Science LtdPrinted in the USA. All rights reserved

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173

The British Columbia Review Panel

Factors Influencing Decision-Making

Isabel Grant,* James R. P. Ogloff,† and Kevin S. Douglas‡

Introduction

In Canada, administrative tribunals exercise substantial authority in decidingthe fate of individuals who have been civilly committed.

1

These tribunals makedecisions regarding committed individuals who want to reject some aspect oftheir care, either a refusal to take medications or a desire to leave the hospital.In British Columbia, Review Panels deal exclusively with individuals seekingrelease whose physicians will not release them from hospital. The Panel’s taskis to determine whether the conditions for involuntary detention continue tobe met. When the Panel releases someone, it is by definition against medicaladvice. Review Panel members are sometimes criticized by hospital staff andin the media for interfering with “medical” decisions for which they have littleexpertise. In fact, however, the tribunals are legal, and not medical, decision-makers, whose role is to determine whether the statutory requirements foroverriding an individual’s choices have been met.

*Faculty of Law, University of British Columbia, Vancouver, British Columbia, Canada.

†SFU/UBC Program in Law and Forensic Psychology, Simon Fraser University, Burnaby, British Colum-bia, Canada.

‡SFU/UBC Program in Law and Forensic Psychology, Simon Fraser University, Burnaby, British Colum-bia, Canada.

This research was made possible in part by a grant awarded to the authors by the British ColumbiaHealth Research Foundation. The authors are grateful to Mr. Allan Tuokko, Coordinating Chair of ReviewPanels, and Mrs. Vidya Sharma, the Office Manager of the Review Panel Office, for their support of thisproject and for their assistance. In addition, the authors thank Lindsey Jack, Tonia Nicholls, Sharon Agar,Darren Nicholls, and Wendy Houtmeyers for their assistance with this study.

Address correspondence and reprint requests to James R. Ogloff, Program in Law and Forensic Psy-chology, Simon Fraser University, Burnaby, British Columbia, Canada ,V5A 1S6.

1

Mental Health Act, R.S.B.C. 1996, c. 288; Mental Health Act, R.S.N.W.T. 1988 c. M-10; Mental HealthAct, S.Y.T. 1989–90, c. 28; Mental Health Act, S.A. 1988, c. M-13.1; Mental Health Act, R.S.N.W.T. 1988, c.M-10; Mental Health Act, S.S. 1984–85–86, c. M-13.1; c. M-13.1; Mental Health Act, R.S.M. 1987, c. M110;Mental Health Act, R.S.O. 1990, c. M-7; Mental Patients Protection Act, R.S.Q. 1977 c. P-41 (as amended);An Act to Amend the Mental Health Act, S.N.B. 1989, c. 23 (as amended); NS-Hospitals Act, R.S.N.S.1989, c. 208; Mental Health Act, R.S.P.E.I. 1994, c. 39; Mental Health Act, R.S.N. 1990, c. M-9.

174 I. GRANT, J. R. P. OGLOFF, and K. S. DOUGLAS

The present study examines one such tribunal, the British Columbia ReviewPanel, with a view to clarifying the factors that influence decision-making anddetermining how patients released by the Panel fare in the community.

2

Wehave gathered data for all the patients in the largest provincial mental healthfacility who applied for a Panel in the calendar year 1994 (

N

5

279). In this ar-ticle, we present the results of the 90 patients who went on to complete Re-view Panels during the calendar year. We examine the factors that influenceReview Panel decision-making for these individuals. Further, we followed 248individuals into the community, either after being released by the ReviewPanel or by their physicians later in the same calendar year, in order to iden-tify relevant differences between the two groups.

The article begins with a brief overview of civil commitment and review inBritish Columbia in order to set the framework within which the Review Paneloperates. After setting the stage we move on to present the findings of ourstudy that are relevant to review panel decision-making. Finally, we discussthe implications of the findings for law reform relating to the Review Panel.

The Legal Regime

Involuntary Commitment

On November 15, 1999, a revised Mental Health Act was brought into forcein British Columbia. While the revised Act does affect the legal regime of theReview Panel process, the present study was conducted under the former re-gime. As such, the discussion of the law here is based on the Act that was inforce at the time of the study. The British Columbia Mental Health Act givesphysicians almost complete control over the civil commitment process. Com-mitment requires the certificates of two physicians who have examined theprospective patient within 14 days prior to admission.

3

These physicians neednot be psychiatrists nor need they have had an ongoing relationship with thepatient. The physicians must certify that they have examined the prospectivepatient not more than 14 days prior to the date of admission to hospital andthat:

1. the person is a mentally disordered person;2. the person requires medical treatment in a Provincial mental health facil-

ity;

and

3. requires care, supervision, and control in a Provincial mental health facil-ity for the person’s own protection or for the protection of others.

4

The definition of a mentally disordered person is set out in § 1 and includesa “mentally retarded or mentally ill person.” The definition of a mentally illperson overlaps with the commitment criteria themselves. The person must besuffering from a disorder of the mind that seriously impairs the person’s ability

2

R.S.B.C. 1996, c. 288.

3

§ 22.

4

See § 22(3), emphasis added.

BRITISH COLUMBIA REVIEW PANEL 175

to react appropriately to his or her environment or to associate with othersand who “requires medical treatment

or

makes care, supervision and controlof the person necessary” for the person’s protection or for the protection ofothers.

5

Once civilly committed, an individual will be detained initially for a periodnot to exceed 1 month, after which the commitment can be renewed by a phy-sician or the director of the facility for a further month.

6

The second renewal isvalid for a period of 3 months,

7

after which all renewals are for 6 months.

8

Thepresent Act provides no specific criteria for a renewing physician to apply.

9

The civilly committed individual in British Columbia has no right to refusetreatment. Treatment authorized by the director of the facility is “deemed tobe given with the consent of the patient.”

10

Thus, in British Columbia, commit-ment carries with it a virtual certainty of treatment.

11

This deemed consentprovision has never been the subject of a constitutional challenge under theCanadian Charter of Rights and Freedoms.

12

Review of Commitment

The Mental Health Act provides three mechanisms to challenge involun-tary commitment.

13

Section 33 allows a person to apply to the Supreme Courtof British Columbia asking for an order prohibiting admission to a mentalhealth facility or an order for discharge. The court must be “satisfied thatthere is or was sufficient reason and authority for the admission” and, if so, canorder the individual be detained. Similarly, if the court is not so satisfied, ad-mission can be prohibited or the patient discharged. Once the detained indi-

5

§ 1, emphasis added. Note that the italicized words indicate that the requirement for civil commitmentis stricter than the definition of a mentally ill person. The use of

and

in the commitment criteria means thatthe person must need hospitalization and care, supervision, and control, whereas the § 1 definition uses thedisjunctive “or” between these two criteria.

6

§ 24(1)(a).

7

§ 24(1)(b).

8

§ 24(1)(c).

9

There is new legislation in British Columbia that is not yet proclaimed. Mental Health AmendmentAct, 1998. Bill 22 (S.B.C. 1998, c. 35). The new provisions widen the commitment net. § 22(3)(c)(iii) wouldrequire that the patient requires care, supervision, and control in or through a designated facility to preventthe person’s or patient’s substantial mental or physical deterioration or for the protection of the person orpatient or the protection of others.

Thus, under this provision physical or mental deterioration would be sufficient to warrant commitment,it would not be necessary to show that the individual needs protection him/herself or for others.

10

§ 31.

11

In fact, Form 5 of the Regulations, which must be completed to authorized treatment of an involuntarypatient, requires either the patient’s signature granting consent, or the signature of a physician indicatingthat the patient is incapable of consent. In practice, however, it appears that a refusal by the patient willinevitably result in a finding of incompetence without any specific competency assessment required.

12

See, however, Fleming v. Reid (1991), 4 O.R. (3d) 74, 82 D.L.R. (4

th

) 298.

13

§ 6(2) of the Regulations under the Act requires that a person civilly committed must be informed ofthe reasons for detention, their right to counsel, and the means of review available under the Act.


vidual has raised some facts suggesting the detention is improper,

14

the direc-tor of the facility must establish, on a balance of probabilities, that thedetention is warranted.

15

To support commitment, § 33 requires only a findingthat the applicant is a mentally disordered person, that is, that the person issuffering from a mental disorder and

either

requires medical treatment

or

needs care, supervision and control for his or her own protection or the pro-tection of others. The commitment criteria, unlike § 33, require both theseconditions to exist.

16

The British Columbia Supreme Court has given a broadinterpretation to the phrase “medical treatment.” Thus, for example, an eld-erly man’s need for nursing care was sufficient to meet the criteria of needing“medical treatment.”

17

There are very few cases under this section, probablybecause of the time and cost involved and because of the courts’ reluctance tointerfere with the exercise of medical discretion in the few cases that come be-fore it.

Section 33(3) expressly retains the patient’s right to apply for habeas corpusor other prerogative writ if, for example, it is alleged that the documentationunder which the individual is detained is invalid.

18

Such remedies could also besought on the basis that the individual’s Charter rights have been violated.

By far the most frequently utilized mechanism to review civil commitmentis that of the Review Panel. The Review Panel is a three-person administrativetribunal to which an involuntarily detained individual may apply to review hisor her detention at designated periods throughout the involuntary commit-ment. While there may be only a handful of § 33 applications in a year, the Re-view Panel receives hundreds of applications each year. In 1994, for example,there were approximately 941 applications to the Review Panel throughoutthe Province and a total of 309 hearings completed.

19

The panel consists of three members: a chairperson, a hospital appointeeand a patient appointee. The Chairpersons are appointed by the Minister ofHealth. Most, but not all, have legal training. Each Panel will also have a “hos-pital appointee,” a physician who is appointed by the facility in which the indi-vidual is detained.

20

The hospital appointee does not “represent” the hospi-tal’s position (which is always in favor of detention), but rather providesmedical expertise to the tribunal that is hearing the case. The patient appoin-tee is someone, other than a family member, nominated by the person apply-ing for the panel.

21

As with the hospital appointee, the role of the patient ap-

14

Robinson v. Hislop (1980), 114 D.L.R. (3d) 620 (B.C.S.C.).

15

Hoskins v. Hislop (1981), 121 D.L.R. (3d) 337 (B.C.S.C.).

16

For a discussion of these differences, see Greggor v. Riverview Hospital, [1992] B.C.J. No. 694 (S.C.).

17

Robinson,

supra

, note 14.

18

See Winder v. British Columbia (Review Panel under Mental Health Act) (1994), 86 B.C.L.R. (2d)331(C.A.) at 334

aff’g.

(1993) 82 B.C.L.R. (2d) 261 (S.C.).

19

Review Panel, Annual Report, 1994. As is obvious from these numbers, there is a large number ofapplications which do not proceed. In 1994, for example, 316 applications were withdrawn, 113 patientswere discharged, 164 patients had their status changed to that of a voluntary patient, 22 patients whoapplied were not eligible, 4 hearings were postponed, and 1 patient died while the application was pending.

20

§ 25(5)(b).

21

§ 25(5)(c).


pointee is not to “represent” the applicant’s position (which is always in favorof release), but rather to ensure that the applicant’s side is fully heard and con-sidered by the tribunal.

22

If, as is often the case, the applicant has no one to ap-point, an appointee will be chosen from one of a number of organizations thatprovide volunteers, for example, the British Columbia Civil Liberties Associa-tion, the Canadian Mental Health Association, or the Legal Services Society.The applicant has the right to have a lawyer present, but, at the time of writ-ing, the legal aid regime in the province only funds the Mental Health LawProject, which provides paralegals for persons wanting an advocate at theirpanel.

In addition to the three panel members, the hospital must appoint an indi-vidual to present the hospital’s case and the arguments in favor of detention.This is not a statutory position but has been developed through ministerialguidelines. One reason for having a “presenter” is to retain the independenceof the physician member of the tribunal by detaching him or her from the hos-pital’s case. The practice also eliminates the need for the attending psychiatristto present the case for detaining his or her own patients. In practice, the pre-senter is usually a physician (and occasionally the treating physician) and notsomeone with legal training. Prior to the scheduled panel, the “presenter” maymeet with the attending physician, review the applicant’s records and meetbriefly with the applicant to assess his or her mental state. At the hearing, thepresenter reads to the tribunal members first from the legal documentationunderlying the detention and then notes and reports from the applicant’s hos-pital chart, outlining the medical/psychiatric/social work history and other per-tinent facts about the individual’s history.

The British Columbia Court of Appeal has held that the Review Panel doesnot have the jurisdiction to assess the legal validity of the applicant’s commit-ment.

23

Rather, the jurisdiction of the Review Panel is limited to assessingwhether the medical justification exists for the continued detention of the ap-plicant. If the Panel decides that detention is not justified, it does not dischargethe applicant. It is for the Director of the facility to discharge the individual.

24

In 1991, the Ministry of Health adopted guidelines to formalize the ReviewPanel procedure and to ensure a degree of consistency across panels. None-theless, the Review Panel is still somewhat informal. While the Chairpersonhas the authority to summon witnesses, third-party testimony is very unusual.The applicant is almost always present throughout the hearing, although theChairperson can decide to exclude the applicant from the entire panel or from

22

At the time this structure was designed, patients appearing before the Panel rarely had lawyers or ad-vocates supporting their case. For years, the patient appointee was the only means of ensuring that the pa-tient’s position was fairly put to the tribunal. Even now, while the Charter and the Mental Health Act regu-lations require that every person civilly committed be informed of his or her right to counsel, the provinciallegal aid regime will only fund paralegals for Review Panels.

23

Winder,

supra

, note 18.

24

While the Court stated that it is for the Panel to assess the medical justification of the continueddetention, in fact most Review Panels make decisions based on whether the legal criteria for commitmentset out in the Act are still met. Thus the Court’s characterization of the decision as a medical one is puzzling,particularly given that there is only one medical representative on the panel.


parts of it if particularly sensitive evidence is being given.

25

The standard forexclusion is whether it is in the applicant’s “best interest,” although in practicesometimes exclusion is requested by the hospital or a third party because ofconcerns about the applicant’s reaction to hearing the testimony of the thirdparty or of his or her physician.

26

While there is a right to counsel, lawyers arerarely present. Most applicants are represented by paralegals, specificallytrained in Review Panel advocacy. The advocates are not always available forhearings. The result is that the applicant is sometimes in the position of choos-ing between proceeding unrepresented or delaying the panel and facing a fur-ther period of involuntary hospitalization. In most cases, the Panel gives its de-cision immediately following the hearing, although the regulations allow adelay of up to 48 hours.

27

Review panels are not open to the public or thepress. Generally, the hearings are recorded so that there will be an audiorecord of the proceedings. Written reasons are provided for the Panel’s deci-sion, although these are generally brief.

The Mental Health Act provides no specific criteria for the Review Paneldecisions, although most panels follow the three commitment criteria outlinedabove: the presence of a mental disorder; the need for medical treatment in aprovincial mental health facility; and the need for care, supervision, and con-trol for the person’s own protection or the protection of others. The BritishColumbia Supreme Court has held that it does not violate the Charter if twophysicians recertify the individual after he or she is released by the ReviewPanel,

28

although this power should only be used in exceptional cases.

Previous Literature

Given the importance of the Review Panel in making decisions regardingliberty, it is surprising that there is such a dearth of literature, both legal andempirical, on its processes.

29

The results of the last systematic examination ofthe British Columbia Review Panel were published in a series of articles in1985–87.

30

These studies examined which involuntary patients applied for aReview Panel, what factors best predicted Review Panel decision-making, andhow patients released by the Review Panel function in the community as com-pared to those who are ultimately released by their physicians.

25

In the present study of 90 panels examined, not a single patient was excluded from the hearing.

26

§ 5(11) of the Regulations.

27

§ 5(13) of the Regulations.

28

Greggor,

supra

, note 16.

29

The leading text on mental health law in Canada is Gerald Robertson, M

ENTAL

D

ISABILITY

(2d ed.1994).

30

J. Gray, A. Clark, J. Higenbottam, B. Ledwidge, & J. Paredes,

Review Panels for InvoluntaryPsychiatric Patients: Which Patients Apply?

, 30 C

AN

. J. P

SYCHIATRY

573 (1985) (hereinafter

Which PatientsApply

”); J. Higenbottam, B. Ledwidge, J. Paredes, M. Hansen, C. Kogan, & Linda Anne Lambert,

Variables Affecting the Decision Making of a Review Panel

, 30 C

AN

. J. P

SYCHIATRY


Variables Affecting a Review Panel

) and B. Ledwidge, W. Glackman, J. Paredes, R. Chen, S. Dhami, M.Hansen, & H. Higenbottam,

Controlled Follow-Up of Patients Released by a Review Panel at One and TwoYears after Separation

, 32 C

AN

. J. P

SYCHIATRY


Review Panel Follow-Up

).


The research conducted focused on a few specific questions, and the proce-dures for Review Panel hearing have become more formalized since that time.First, the investigators studied which patients tended to apply to the ReviewPanel for a hearing.

31

The “typical” Review Panel applicant tended to be amale under 30 years of age who was uneducated, unskilled, and unemployed.The applicant was most likely a schizophrenic who was transferred to River-view from another institution, and had problems with work, school, and par-ents. The applicant was also likely to have problems with alcohol abuse, and tohave normal orientation and memory, and no mental retardation or epilepsy.

Second, the factors that affect the decision-making of a Review Panel werealso studied.

32

In this study, the profile obtained differentiated Review Panelapplicants who were likely to be released from those who were not likely to bereleased. The “typical” person released by the Review Panel was representedat the hearing by a lawyer, was unmarried, and was likely to have beendeemed “capable” under the Patients’ Estate Act. Those who were releasedtypically spent less time in hospital, and were out of hospital longer since thelast admission, than those who were not released by the Panel. The releasedgroup were also more likely to have been on a waiting list for a boardinghome, and were judged by their attending psychiatrist as being less dangerousto self than those who were not released. Those who were released typicallyhad a history of drug abuse, but were judged as having less psychopathologythan those patients who were not released.

The final study involved a follow-up of those who were released by the Re-view Panel.

33

The findings from this study were relatively straight-forward:those who were released by the Review Panel were no more likely to be read-mitted during the year released (43%) than were those released by physicians(45%). Two factors emerged as good predictors of re-admission: severity of ill-ness and nonresponsiveness to treatment.

The present study seeks to update and augment the information found inthose older studies to determine the extent to which the Review Panel processhas changed over the past decade, particularly in light of the attempts made toadd more formality and legal process to the system. It must be noted that thepopulation at Riverview Hospital has changed rather dramatically over thepast 25 years. In 1974, for example, the combined populations of Riverviewand the affiliated geriatric facility Valleyview

34

was 2,647. The combined pop-ulation in 1985, just before the two institutions merged, was 1,158. Finally, thetotal population of Riverview, in 1994, 8 years after the two institutionsmerged, was 789.

35

Given this consistent decline, one can speculate that, as thenumbers declined, only the most seriously ill individuals would continue to behospitalized, whereas those whose illnesses were less serious would be more

31

Which Patients Apply

,

ibid..

32

Variables Affecting a Review Panel

,

supra

, note 30.

33

Review Panel Follow-Up

,

supra

, note 30.

34

Valleyview is the geriatric facility that was merged with Riverview in March 1986.

35

This information was provided by the Medical Records Department at Riverview Hospital. Thenumbers cited are year-end figures.


likely to be released. In other words, it is possible that the 1994 Review Panelsaw a more seriously ill group of applicants. This change in the nature of thepopulation at Riverview Hospital must be kept in mind when considering thedata that follow.

Method

Patient Files

Patients’ files from the hospital and Review Panel Office for all involuntarypatients in the province’s largest psychiatric hospital, Riverview Hospital, whoapplied for a Review Panel hearing in the 1994 calendar year (

N

5 279), werecoded for demographic, psychiatric, and criminal history information. Thesample of 279 refers to the number of applications to the Review Panel from theprovincial psychiatric hospital in the calendar year, not to the number of individ-ual applicants. Eighty-nine Review Panel applications were not considered be-cause they were a second Panel for the same individual in that calendar year.

Each file was coded by research assistants who were graduate students inpsychology. The data obtained from the file included numerous demographic,psychiatric, and criminal history information. One quarter of the files wererated by two coders who were blind to one another’s ratings. The level of in-ter-rater reliability obtained was high.36 The files included information frompsychiatrists, nurses, social workers, and any form of testing undergone by thepatient. Follow-up information was available for 248 subjects. The follow-upconsisted of criminal records checks, searching hospital admissions records,and examining coroner’s files.

Results

Table 1 reveals the break down of all applications under the Act in 1994.Table 2 looks more specifically at the sample once the files of repeat-panel ap-plicants are excluded. Of the 190 total first Review Panel applications, 90(47.37%) went on to result in completed panels. Seventy-three applicants(39.18%) canceled their panel before it took place. Of the completed panels,31 patients were released (34.44%) and 59 were detained (65.56%).

For the 90 panels that were completed, we examined which variables weresignificant in predicting release or detention for those individuals. Table 3 pre-sents those variables that were statistically significant predictors of release/de-tention at the Review Panel (p , .05).

There were several other variables that approached significance, some ofwhich were related to the significant variables. The following tables groupvariables according to subject matter and include all variables where p , .10.These categorizations are made for descriptive purposes only and some vari-ables may be included in more than one table, such as, for example, substance

36See K. S. Douglas, J. R. P. Ogloff, T. L. Nicholls, & I. Grant, Assessing Risk for Violence Among Psy-chiatric Patients: The HCR-20 Violence Risk Assessment Scheme and the Psychopathy Checklist: ScreeningVersion, 67 J. CONSULT. CLIN. PSYCHOL. 917–30 (1999).


abuse, which we have included as both a clinical variable and an adjustmentvariable.

Demographics and Family History

Our sample was comprised of 54 men (60%) men and 36 women (40%)women. The mean age at discharge was 38.75 years, with the age ranging from18–77 years. There were very few demographic variables that showed statisti-cally significant differences between those detained by the Panel and those re-leased. Table 4 presents those demographic variables approaching signifi-cance.

Two of the findings regarding ethnicity warrant mention. First, there was asignificantly higher proportion of Caucasians in the detained group than in thereleased group. Second, there was a higher percentage of First Nations indi-viduals in the released group, although this latter difference was not statisti-cally significant (p , .081). Table 5 shows the racial break-down of the ReviewPanel sample. Caucasians were detained at a significantly higher rate thanmembers of other ethnic groups. However, since Caucasians comprised almost80% of the sample, it is difficult to draw conclusions from this finding.

While there was no statistically significant differences between the rate ofrelease for men and for women, the results regarding gender are nonethelessinteresting. Table 6 presents the rates of release and detention for men and forwomen.

Table 6 reveals that women were detained at a higher rate than were men.In the present study, 75% of the women who had completed Review Panelswere detained while only 59.26% of the men were detained. These results did

TABLE 1Total Applications to the Review Panel in 1994 at Riverview Hospital

N n (%)

Total number of persons applying for review panel in calendar year 279Subsequent panels excluded for individuals already in study 89 (31.45)Total number of first Review Panels applications in the calendar year 190 (68.55)

TABLE 2First Review Panel Applications for Calendar Year

n (%)

Patient’s status changed to informal before panel 27 (13.92)Panel cancelled by patient 73 (39.18)Patient detained by review panel 59 (30.93)Patient released by review panel 31 (15.98)Total 190 (100)


not show a statistically significant difference (p , .124), but the trend is partic-ularly striking in light of the findings of the 1985 study,37 which found that menwere detained at a higher rate than were women.

Aggression and Self-Harm in Community

Table 7 sets out the results for variables relating to aggression and self-harmbefore hospitalization subject to study. Table 7 reveals that the only one ofthese variables that was higher in the detained group was self-harm within 2weeks prior to admission. All the other variables regarding aggression andself-harm were found at a higher rate in the released group, including attemptsat suicide within 2 weeks prior to admission. Again, though, because the abso-lute numbers are low, it is difficult to draw definitive conclusions concerningthe meaning of the data.

Other Adjustment Problems in the Community

Table 8 presents those variables that reflect adjustment problems otherthan violence or self harm. Unlike Table 7, other adjustment problems in thecommunity all were more frequent in the detained group. There was a veryhigh rate of prior hospitalization in the entire sample, with over 95% of sub-jects having been hospitalized previously. This rate reached 98% for those

TABLE 3Significant Differences Between Released and Detained Subjects (p , 0.5)

Released Detained

Variable n (%) n (%) x2 (p)

Parents separated 14 (45.16) 14 (23.73) 4.36 (.037)Presently living common law 4 (12.90) 1 (1.69) 4.87 (.027)Caucasian 19 (61.29) 50 (84.75) 6.25 (.012)Self-report of past violence 11 (35.48) 10 (16.95) 3.90 (.048)2–4 past violent incidents 26 (83.87) 36 (61.02) 4.95 (.026)Problems adjusting in community settingsa 7 (22.58) 27 (45.76) 4.65 (.031)Prior breach of court order or failure to appear 1 (3.23) 14 (23.73) 6.15 (.013)Uncooperativeness on admission 16 (51.61) 18 (30.51) 3.85 (.05)Verbal aggression against copatients 8 (25.81) 30 (50.85) 5.55 (.019)Ever experienced delirium tremens 7 (22.58) 2 (3.39) 8.32 (.004)Released to live alone 19 (63.33) 23 (41.07) 3.88 (.049)

aCommunity settings refers to residential facilities in the community, such as group homes or boardinghomes.

37Variables Affecting the Review Panel, supra, note 30. In the 1985 study, there were no statistically sig-nificant gender differences between the detained and released groups (64% of the released group weremale; 71% of the detained group were male). However, gender did contribute to a discriminant functionanalysis with “male” being associated with detention. The authors interpret this to mean that gender, as partof a pattern of variables, and not on its own, differentiated the two groups.


who were detained by the Review Panel. The rate of having breached a courtorder or failed to appear in court was seven times higher for the detainedgroup than the released group.

Adjustment in Hospital

Table 9 sets out several variables dealing with the individuals adjustmentproblems during the current hospitalization. The only hospital adjustmentvariable that was predictive of release was uncooperativeness at the time ofadmission. All the other adjustment variables were found at a higher rate inthe detained group.

Clinical Variables

The present study examined numerous clinical variables relating to psychi-atric diagnosis, symptomology, medication, and treatment. Of the variablesconsidered, Table 10 reveals that only one, the experience of delirium tre-mens, differed significantly between individuals released and those detainedby the Review Panel.

TABLE 4Demographics and Family History

Released Detained


Caucasian 19 (61.29) 50 (84.75) 6.25 (.012)*First Nations 3 (9.68) 1 (1.69) 3.05 (.081)Parents separated 14 (45.16) 14 (23.73) 4.36 (.037)*Mother with history of mental illness 4 (12.90) 17 (28.81) 2.88 (.090)Did not finish elementary school 0 (0.00) 5 (8.47) 2.78 (.095)Presently living common law 4 (12.90) 1 (1.69) 4.87 (.027)*

*p , .05.

TABLE 5Racial Background

Released Detained

Race n (%) n (%) x2 (p)

Asian 1 (3.22) 0 (0) 1.93 (NS)Biracial 1 (3.22) 0 (0) 1.93 (NS)Caucasian 19 (61.29) 50 (84.74) 4.36 (.012)*East Indian 0 (0) 1 (1.69) 0.53 (NS)First Nations 3 (9.65) 1 (1.69) 3.05 (.081)Other 3 (9.65) 3 (5.08) 0.69 (NS)

*p , .05.


A history of delirium tremens was found at a much higher rate in the re-leased group. All of the other clinical variables that approached significancewere found more often in the detained group. Noncompliance with medica-tion was associated with detention, as was the presence of hallucinations anddelusions experienced concurrently.

Review Panel Variables

Numerous variables were examined relating to the composition of the Re-view Panel, its process, and its findings. The only dichotomous variables ap-proaching significance were (a) that the applicant was being released to livealone (p , .049), and (b) that the applicant was represented by an advocate atthe hearing (p , .10) with both of these variables occurring at a higher rate forthe released group. There were some nondichotomous variables that were alsosignificant. For example, in cases where there was a dissent, the identity of the

TABLE 6Outcome of Panel in Relation to Gender

Released Detained

Gender n (%) n (%) Total x2 (p)

Male 22 (40.74) 32 (59.26) 54 2.37 (.12)Female 9 (25) 27 (75) 36Total 31 59 90

TABLE 7Aggression and Self-Harm in Community

Released Detained


First violent incident before age 16 6 (19.35) 4 (6.9) 3.25 (.071)Past verbal aggression 27 (87.10) 42 (71.19) 2.88 (.090)Self-report of past violence 11 (35.48) 10 (16.95) 3.90 (.048)*2–4 past violent incidents 26 (83.87) 36 (61.02) 4.95 (.026)*Physical aggression in community settingsa 2 (6.45) 12 (20.34) 2.98 (.084)Verbal aggression in community settingsa 3 (9.67) 16 (27.12) 3.71 (.054)Prehospital self-harm

(within 2 weeks prior to admission) 0 (0.0) 5 (8.47) 2.78 (.095)Prehospital attempted suicide

(within 2 weeks prior to admission) 3 (9.68) 1 (1.69) 3.05 (.081)

aCommunity settings refers to residential facilities in the community, such as group homes or boardinghomes.

*p , .05.


panel member dissenting was significantly different for those released and de-tained by the Review Panel. Hospital appointees were more likely to dissent incases where the Review Panel did not detain the individual and patient ap-pointees were more likely to dissent in cases where the individual was de-tained (p , .036) Where the subject was released, all four dissents came fromthe hospital appointee. When the subject was detained, there were four dis-sents from the patient appointee, one from a Chairperson, and one from thehospital appointee. Table 11 reveals that the identity of the psychiatrist on thepanel was significant (p , .022).

There were 14 different psychiatrists participating as hospital appointees in1994, with some doing as few as one panel. For example, of the panels Psychi-atrist 3 participated in, only 5% resulted in the release of the patient, whereas55% of the Panels in which Psychiatrist 8 was involved resulted in release. Ta-ble 12 presents the outcome of the Panel for each Chairperson.

One can also see that there is a noticeable difference between, for example,Chair 1 for whom 53.85% of the panels he or she was involved in resulted inrelease as compared to only 6.67% for Chair 3. These differences, however,were not statistically significant. The 1985 study of Review Panels revealed

TABLE 8Other Adjustment Problems in Community

Released Detained


Problems with substance abuse incommunity settingsa 0 (0.0) 5 (8.47) 2.78 (.095)

Problems adjusting in community settingsa 7 (22.58) 27 (45.76) 4.65 (.031)*Prior breach of court order or failure to appear 1 (3.23) 14 (23.73) 6.15 (.013)*Prior hospitalization 28 (90.34) 58 (98.31) 3.05 (.081)

aCommunity settings refers to residential facilities in the community such as group homes or boarding homes.*p , .05.

TABLE 9Adjustment in Hospital

Released Detained


Uncooperativeness on admission 16 (51.61) 18 (30.51) 3.85 (.05)*Inappropriate affect on admission 23 (74.19) 52 (88.14) 2.84 (.092)Aggression against copatients 10 (32.26) 30 (50.85) 2.84 (.092)Verbal aggression against copatients 8 (25.81) 30 (50.85) 5.55 (.019)*Incidents of special attention in hospital 11 (35.48) 32 (54.24) 2.87 (.091)

*p , .05.


that the presence of a lawyer was a significant predictor of release. However,by 1994 a much larger percentage of patients was represented by advocates,usually paralegals from the Mental Health Law Project. Table 13 presents thedata regarding whether or not an advocate was present for the Review Panel.This information was available in 75 cases only.

For those panels with an advocate, the release rate was over 40%, whereasfor those with no advocate, the release rate was just over 16%. Due to thesmall number of panels completed by cell, this difference was not statisticallysignificant (p , .10). Nor was there a significant difference in the results de-pending on the identity of the advocate (p , .11). There were several continu-ous variables that showed significant differences between the detained and thereleased groups, however.

The results in Table 14 reveals that the released group had more recent inci-dents of self-harm, earlier instances of aggression against staff in hospital andwere younger when first arrested. They also had fewer unauthorized absencesfrom hospital but this difference was not statistically significant. With respectto the variables regarding aggression in hospital, because the standard devia-tions for the detained group were so large, we examined the data and deter-mined that the detained group consisted of several individuals who had beenhospitalized for a long period of time, some of whom first demonstrated ag-gression as late as 500 days after admission to hospital, others whose first ag-gressive incidents ranged from 100–400 days after hospitalization. With the re-leased group, by contrast, for those who had incidents of aggression, thelongest time in hospital until that incident was 67 days.

Overall, the patients who were released spent significantly less time in hos-pital prior to the Review Panel hearing than those who were detained. Thissuggests that patients who are released are less chronically mentally ill thanthose patients who are detained by the Review Panel.

TABLE 10Clinical Variables

Released Detained


Prior hospitalization 28 (90.34) 58 (98.31) 3.05 (.081)Medication noncompliance 7 (22.58) 24 (40.68) 2.95 (.086)Inappropriate affect on admission 23 (74.19) 52 (88.14) 2.84 (.092)Labile affect on discharge 0 (0.00) 6 (10.34) 3.39 (.066)Problems with substance abuse in

community settingsa 0 (0.00) 5 (8.47) 2.78 (.095)Ever experienced delirium

tremens 7 (22.58) 2 (3.39) 8.32 (.004)*Hallucinations and delusions

experienced concurrently 1 (3.22) 9 (15.25) 2.98 (.084)

aCommunity settings refers to residential facilities in the community, such as group homes orboarding homes.

*p , .01.


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Follow-Up Results

Eighty-seven of the 91 Review Panel subjects, having been released by theReview Panel or by their physicians, were followed into the community. Thosewho were released by the Review Panel were compared to those who were de-tained by the Panel, but subsequently released by their physicians in the samecalendar year. The results for the follow-up data are presented in Table 15.

The only significant difference between the patients released by the Paneland those subsequently released by their physicians was found in the variablerelated to any arrests in the follow-up period. Of the released group 16.13% (5of 31) were arrested in the follow-up period, whereas only 3.39% (2 of 59) ofthe detained group were arrested in the follow-up period. While this is signifi-

TABLE 13Rate of Release/Detention by Presence of Advocate

Advocate present

Advocate absent

Outcome n (%) n (%) Total x2 (p)

Detained 37 (58.73) 10 (83.33) 47 2.61 (.10)Released 26 (41.27) 2 (16.67) 28Total 63 12 75

TABLE 14Continuous Variables

Released Detained

Variable M SD M SD t (p)

Hospital rating ofassaultiveness 2.3548 .8386 2.000 .8312 21.90 (.061)

Timing of most recentself-harm .1333 .5713 .5424 1.1036 2.30 (.024)*1 5 current month2 5 current year3 5 more than 1 year ago

Number of days untilaggression in hospital 11.2632 18.4627 47.7317 99.4276 1.83 (.065)

Number of days untilaggression against staff 9.4444 16.2742 60.6944 113.7159 2.65 (.012)*

Number of days until verbal aggression against staff 9.7647 16.7165 46.5429 82.1399 2.54 (.015)*

Number of unauthorized absences .5000 .8200 .9138 1.3016 1.82 (.072)

Age at first arrest 16.000 1.8708 26.000 16.1820 2.35 (.033)*

*p , .05.


cant (p , .05), the numbers are very small with a total of only seven arrestsamong the entire sample of 87. There is a slightly higher rate of violent arrestsfor those released by the Panel (3.12%) than for those released by their physi-cians (1.69%) (p , .081), but the difference was not statistically significant.Again, since there was a total of only four arrests for violent acts, it is difficultto draw firm conclusions from these figures. A comparison between the arrestrate for the Review Panel released subjects and that of the entire sample of248 individuals released in 1994, puts these results in context. Of the 248 indi-viduals followed into the community, the overall rate for any arrests for12.9%, compared with 16.13% for the group released by the Review Panel.The rate of violent arrests for the whole sample was 8.9%, as compared with9.67% for the group released by the Review Panel.

In terms of rehospitalization, the detained group had a slightly higher rateof rehospitalization, with 40.68% (24 of 59 individuals) of the detained groupbeing readmitted to hospital and 38.71% (12 of 31 individuals) of the releasedgroup being rehospitalized within the follow-up period. This compares with arehospitalization rate of 41.9% for the entire sample of 248. All three of thesuicides that took place for the 90 Review Panel subjects were in the group de-tained by the Review Panel.

Discussion

Before discussing the results of the study, it is important to note three im-portant points concerning civil commitment and Review Panels in British Co-lumbia. First, the legal review of the detention of involuntarily committed in-dividuals leads to some tensions between psychiatrists and the Review Panel.This occurs as a result of the perceived conflict between the committed indi-viduals’ legal rights and their need for continued psychiatric treatment. The at-tending physician can release a committed patient at any time. Once a case

TABLE 15Follow-Up Data: A Comparison of Those Released by the Review Panel and

Those Detained by Review Panel and Physician Released

Released (n 5 31)

Detained (n 5 59)


Any arrests 5 (16.13) 2 (3.39) 4.60 (.032)*Arrests for violent acts 3 (9.67) 1 (1.69) 3.05 (.081)Any physical violence 8 (25.81) 8 (13.56) 2.09 (.15)Any violence 11 (35.48) 16 (27.12) 0.68 (NS)Rehospitalization 12 (38.71) 24 (40.68) 0.03 (NS)Suicides 0 (0) 3 (5.08) 1.61 (NS)Natural death 1 (3.23) 1 (1.69) 0.18 (NS)

*p , .05.


makes it to a Review Panel hearing, the physician has already determined thatthe individual continues to meet the criteria for involuntary hospitalization.Thus, all patients released by the Panel are released against the advice of theirphysician.

Second, in addition to the tension described above, some people believethat Review Panels, while acting in accordance with the legal requirements ofthe Mental Health Act, make “errors” that lead to persons being released whowill “fail” in the community. Unfortunately, the perceptions of such failuresmay occur as a result of the lack of systematic information comparing personsreleased by the Panel and those detained by the Panel who are later releasedby physicians. As the results from this study show, persons released by thePanel differ little in their description or outcome from those detained by thePanel and later released by the hospital.

The third point to consider when interpreting the results of the presentstudy is that the population studied in this article consists entirely of personstransferred from psychiatric units that were unable to provide longer-termcare for them. As a result, the subjects of this study are probably not represen-tative of persons detained in psychiatric units in general hospitals. It is not sur-prising, therefore, that the Review Panel detains almost two thirds of patientsat Riverview Hospital. A study of Review Panels in all the psychiatric units inthe province might uncover a higher release rate than the one found in ourstudy of Riverview Hospital. The relatively low release rate at Riverview mayexplain, in part, why the nature and outcome of those released by the ReviewPanel does not differ in any dramatic way from those who are detained, butlater released by the physicians.

The results of the present study reveal that the Review Panel detains moreapplicants than it releases. The release rate in 1994 (approximately 34%) wassimilar to that found in 1985 (approximately 35%). Thus, the increased proce-dural protections for the applicant and the provision of paralegal representa-tion have not significantly increased the release rate. However, this may notbe simply because the Panels themselves have not changed much. Rather, onemay speculate that the 1994 Review Panel saw a different group of patientsthan did the 1985 Panel. Indeed, we noted earlier that the population of River-view Hospital has decreased dramatically over the past 25 years, with the re-maining population being more ill than those patients hospitalized in the1970s.

While there was a higher number of men in the study, women were de-tained at a higher rate than men, although the difference was not statisticallysignificant. It is possible that the Panel takes a more paternalistic approachto women than to men, deciding to “protect” the women by keeping them inhospital. In the 1985 study, however, the opposite result was found with menbeing detained at a higher rate than women. The 1985 results make the pa-ternalist rationale less convincing. There is nothing to suggest that the 1994Panel was more paternalistic than the 1985 Panel and, in fact, the increasedlegal representation and other procedural protections make this an unlikelyconclusion.

One could speculate that it might take a greater level of pathology to war-rant the civil commitment of a woman. The literature suggests that men are


more likely to be perceived as violent and dangerous than are women.38 It ispossible that only the most seriously ill women are committed. Thus, the pop-ulation of women going before the Panel might be more seriously ill on aver-age than the men going before the panel.

A related explanation might be that, because individuals admitted to River-view Hospital are all referred from psychiatric units of other hospitals, themales who are transferred to Riverview are not as seriously ill as the females.There may be a perception that men are more difficult to handle in the generalhospital psychiatric units. As a result, there may be a higher threshold of toler-ance for the behavior of women in psychiatric units, with those who are trans-ferred to Riverview Hospital being somewhat more seriously ill than theirmale counterparts.

In addition to gender differences, the results indicated that Caucasians weredetained at a significantly higher rate than members of ethnic groups. Theseresults parallel other findings in the literature.39 Due to the rather small num-bers of persons from ethnic minorities in the sample, one cannot draw clearconclusions from this finding. However, given the ethnic diversity of Canada,this finding warrants further research into the role of ethnicity in ReviewPanel decision-making.

The results were variable and inconclusive as to the extent to which pa-tients’ experiences with aggression and self-harm, prior to admission, werepredictive of discharge by the Review Panel. Because the number of patientswho had engaged in aggressive or self-injurious behavior in the communityprior to admission was quite small, the differences obtained are somewhatcontradictory and not particularly meaningful. For example, the releasedgroup were significantly more likely than those who were detained to have hadfrom 2-4 past violent incidents (84% vs. 61%) and to have self-reported pastviolence (35% vs. 17%). By contrast, those who were detained were signifi-cantly more likely to have been verbally aggressive in community settings(27% vs. 10%). Taken together, though, the results do not show a clear pat-tern. This may be due to the fact that an individual’s behavior in the commu-nity is not always directly related to behavior in hospital. In addition, ofcourse, for many of the patients, their aggression and self-injurious behavior isprecipitated by their mental illnesses. Thus, while in hospital, as they becomestabilized, their level of aggression and self-injurious behavior dissipates.

While the results regarding prehospitalization aggression were ambiguous,the impact of aggression while hospitalized was clearer. Those who were re-leased generally demonstrated better adjustment and behavior during theirhospitalization than who were detained. Released patients, for example, weresomewhat less likely to have been aggressive against copatients (32% vs.

38See, for example, P. D. Coontz, C. W. Lidz, & E. P. Mulvey, Gender and the Assessment of Dangerous-ness in the Psychiatric Emergency Room, 17 Int. J. Law Psychiatry 369 (1994) and C. W. Lidz, E. P. Mulvey,& W. Gardner, The Accuracy of Predictions of Violence to Others, 269 J. AM. MED. ASSOC. 1007(1993).

39V. A. Hide, Civil Commitment: A Review of Empirical Research, 6 BEHAV. SCI. L. 15 (1988); D. E.McNeil & R. L. Binder, Violence, Civil Commitment, and Hospitalization, 174 J. NERV. MENTAL DIS. 107–111 (1986).


51%), and verbally aggressive against copatients (26% vs. 51%). The releasedpatients also had less incidents of “special attention” for their behavior whilein hospital than did patients who were detained (35% vs. 54%). Thus there is adifferent pattern to the aggression exhibited prior to hospitalization, whichmight be far back in time, and to the more recent aggression in hospital. Be-cause aggression in hospital is more recent and probably better documented, itis likely that it had a bigger impact on Review Panel decision-making than didaggression at some time in the past.

The pattern of results regarding other adjustment problems experienced inthe community prior to hospitalization was clearer than that relating to pre-hospital aggression. Those who were detained displayed significantly greateradjustment problems than those who were released. For example, detainedpatients were more likely to have had problems adjusting in community set-tings (46% vs. 23%); were more likely to have had substance abuse problemsin community settings (8% vs. 0%); were more likely to have breached a courtorder or failed to appear in court (24% vs. 3%); and were slightly more likelyto have been hospitalized in a psychiatric hospital previously (98% vs. 90%).Although not overwhelming, these results do suggest that those released bythe Panel had previously demonstrated better community adjustment thanhad individuals who were detained.

Finally, as the results in Table 10 show, patients who were released wereless likely than those detained to have exhibited general clinical variables(e.g., noncompliance with medication). One notable exception was that pa-tients who were released were more likely to have exhibited delirium tremensthan those who were detained (23% vs. 3%). Although we have no data toconfirm this; the fact that so many more patients who were discharged exhib-ited delirium tremens raises the question of whether some patients are hospi-talized either because of symptoms of alcoholism or drug abuse. It is also pos-sible, of course, that comorbidity of mental illness and alcoholism is associatedwith milder or more transitory episodes of mental illness. Whatever the rea-son, this is an interesting and potentially important area that requires furtherresearch.

In addition to characteristics of individual patients, this study investigatedwhether characteristics of the Review Panels themselves systematically re-lated to which patients would be released or detained. Generally speaking,few differences emerged for those applicants who were released comparedwith those who were detained. For example, while there was some variationamong release rates across psychiatrists who were on the Panel and ReviewPanel chairs, the numbers were too small to determine whether the differ-ences were meaningful. Also, Review Panel applicants who were representedby a mental health advocate (paralegals) were more likely than patients whowere not represented to be released by the Panel.

The follow-up data revealed that the Review Panel appears to be doing itsjob reasonably well. Additional procedural protections have not resulted in ahuge number of patients being released inappropriately. The only significantdifference between the groups was in the arrest rate, with the released grouphaving a higher rate. However, when compared to the arrest rate of the wholesample of patients released that year, there is no significant difference.


As is often the case in psychiatric hospitals, the re-admission rate was highfor all subjects, but the Review Panel released group had the lowest rate of re-hospitalization, lower than both the detained group and the remainder of thesample.

The worst outcome is when a Review Panel releases a person who then goeson to harm either him/herself or others. We detected no homicides in the en-tire follow-up sample and three suicides. However, there were no suicides inthe group released by the Review Panel. All three suicides during the follow-up period were among patients who had been detained by the Review Paneland then released later by their physicians. With respect to the most serious ofharms, suicides and homicides, there were none found in the Review Panel-released group.

Conclusions

The goal of mental health legislation is to ensure treatment for those whoare seriously mentally ill and a threat to themselves or others. The correspond-ing function of the Review Panel is to provide a check on the power given todoctors to deprive individuals of their liberty in the name of psychiatric treat-ment. The Review Panel’s job is not to determine whether hospitalized per-sons could benefit from further treatment but rather to ensure that only thosewho meet the criteria of the Mental Health Act are detained. The challengefor the Review Panel system, therefore, is to strike a balance between theneeds of an individual for psychiatric treatment and his or her liberty interests.The results of the present study suggest that the Review Panels in British Co-lumbia may be achieving an appropriate balance. Somehow, even withoutproper criteria to apply on review, the Panel appears to be able to identify theindividuals who present the greatest risk of harm to themselves and to others.We would argue from these results that there is no great need to expand thepowers of the Review Panel nor to broaden the criteria for civil commitmentor for detention on review of commitment. The present study thus does notsupport the recent changes to the Mental Health Act that may well widen thenet of persons who could be involuntarily committed.

the british columbia review panel: factors influencing decision-making

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