Delta Hospital. (Grace Kennedy photo)

Fraser Health detained a patient illegally for a year, judge rules

The Delta woman was not allowed to contact a lawyer, denied access to a phone or the internet

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, identified only as A.H., had her rights under section 7 of the Canadian Charter of Rights and Freedoms were 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.



sasha.lakic@northdeltareporter.com

Like us on Facebook and follow us on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Samantha Lenz, resort manager for Oceanside RV Resort, says she continues to turn people away, who are looking for a permanent spot to winter on the Saanich Peninsula. (Wolf Depner/News Staff)
Tourism operators hope Canadian Snowbirds flock to B.C.

Provincial tourism industry hopes to compensate ‘monumental financial losses and hardship’

Patrol officers from VicPD’s Esquimalt division responded to a call about hateful graffiti in Macaulay Park Wednesday evening. (Black Press Media file photo)
Anti-Semitic, hate-based graffiti found in Esquimalt park

Police seek suspects after fresh hate-based graffiti found Wednesday evening

Vancouver Island-based Wilson’s Transportation has expanded to fill some of the routes left unserviced by Greyhound as of Nov. 1, 2018. (Black Press files)
B.C. bus companies say they need help to survive COVID-19

Like airlines, motor coaches have lost most of their revenue

Victoria police are asking for people's help identifying the suspect of a sexual assault that occurred early Oct. 29. (Black Press Media file photo)
VicPD searching for suspect in sexual assault incident

A woman was sexually assaulted at the 800-block of Cormorant Street just before 4 a.m. Oct. 29

Victoria City Council approved two new affordable housing developments during its Oct. 22 council meeting. (Courtesy of Victoria City Council)
Victoria approves 72 new affordable housing units

Council approved new developments at 736 Princess Ave. and 330 Michigan St.

A woman wears a face mask and plastic gloves while browsing books as a sticker on the floor indicates a one-way direction of travel between shelves of books at the Vancouver Public Library’s central branch, after it and four other branches reopened with limited services, in Vancouver, on Tuesday, July 14, 2020. (THE CANADIAN PRESS/Darryl Dyck)
B.C. reports 234 new COVID cases, 1 death of senior who had attended small birthday party

Roughly 5,700 people are isolating due to being exposed to a confirmed case

A deer was spotted in October 2020 in Prince Rupert, B.C., with a bright pink yoga ball stuck in its antlers. (Kayla Vickers/Chronicles Of Hammy The Deer Official Page)
Hammy 2.0? Prince Rupert deer spotted with bright pink yoga ball stuck in antlers

The BC Conservation Officer Service is aware of the deer roaming around the city

President Donald Trump speaks at a campaign rally in Allentown, Pa. on Oct. 26. (AP Photo/Alex Brandon)
POLL: How closely are you following the U.S. presidential election?

It may feel like it’s been going on forever but the U.S.… Continue reading

RCMP. (Phil McLachlan - Black Press Media)
Kelowna Mountie hit with 2nd lawsuit in 2 months for alleged assault

Const. Julius Prommer is accused of breaking a woman’s knee during while responding to a noise complaint

Hirdeypal Batth, 24, has been charged with sexual assault and forcible confinement in relation to an incident in August 2020. (VPD handout)
Man, 24, charged with sex assault after allegedly posing as Uber driver in Vancouver

Investigators believe there could be more victims outside of the Vancouver area

Pilot Kevin Maher participated in a flyover of a ceremony at the Cobble Hill cenotaph on Oct. 22 in a 1940 North American (Noorduyn) Harvard aircraft. (Robert Barron/Citizen)
Cobble Hill remembers lost military members with ceremony, flyover

Annual event commemorates those who died in non-combat roles

Adam Ireton holds his son Weston, along with Kristen and Beckett as they celebrate Weston's last day of treatment for lukemia. (Kristen Ireton photo)
799 days: ‘Super’ Weston defeats cancer

‘Weston is disease-free now, so we will be going into a period of checkups and things until he’s 18’

B.C. Premier John Horgan and Washington Gov. Jay Inslee arrive for annual Cascadia conference in Vancouver, Oct. 10, 2018. They have agreed to coordinate the permanent switch to daylight saving time. (B.C. government)
B.C. still awaiting U.S. approval to eliminate daylight saving time

Clocks going back one hour Nov. 1 in Washington too

Anyone with information on any of these individuals is asked to call 1-800-222-TIPS (8477) or visit the website victoriacrimestoppers.ca for more information.
Greater Victoria Crime Stoppers wanted list for the week of Oct. 27

Greater Victoria Crime Stoppers is seeking the public’s help in locating the… Continue reading

Most Read