When Statutory Powers Distract: Involuntary Detention and Treatment Laws, and Liability for Harm
journal contributionposted on 29.10.2019, 09:29 by Wendy E Bonython;Bruce B Arnold
Appellate courts have rejected claims of misfeasance by statutory authorities vested with involuntary detention and treatment powers under mental health legislation, treating them as statutory liability matters. We argue that requirements for exercise of involuntary detention powers were factually absent in each of the key cases (McKenna, Presland, KirklandVeenstra, and Crowley) and consequently the relevant statutory powers were unavailable. Reliance on statutory liability is misguided and these ratios should be avoided. Instead, negligence claims based on breach of the medical practitioner’s duty to patients, which survives activation of the involuntary powers, may provide a more appropriate basis for considering future claims of this class.