The Council of Canadians with Disabilities v. Attorney General of BC court case challenges the “deemed consent” laws in the Mental Health Act and related legislation. “Deemed consent” means that the law says all involuntary patients have consented to any psychiatric treatment approved by the hospital, without the need for any assessment of whether the individual is actually capable of making their own treatment decisions. This includes involuntary patients living independently in the community. The case argues that this is a Charter violation of the rights of involuntary patients.

The BC government decided to bring a procedural challenge to get the case thrown out without a trial, rather than answering the issues about whether the “deemed consent” model violates the rights of involuntary patients. Recently, the Supreme Court of Canada decided to hear the government’s challenge about whether the case is allowed to go to trial. Unfortunately, there is false information being spread about what the case is actually about and what it could do.  This chart clears up some of the most common misinformation.

✘   The case is trying to abolish the Mental Health Act.

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✘   The case is trying to abolish detention in hospital, or make it harder to involuntarily admit and detain someone under the Mental Health Act.

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✘   If the case succeeds, it means there will be no involuntary treatment in BC.

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✘   The case is arguing that all involuntary patients should have the right to refuse treatment.

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✘   The case is arguing that people who are incapable of making psychiatric treatment decisions can still make their own decisions to refuse treatment.
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✘   If the case succeeds, health care providers won’t be able to treat someone in an urgent or emergency situation without first seeking consent, which could delay treatment.
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✘   The case is trying to import a health care consent model from another place in Canada (like Ontario) into BC.
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✘   The case argues against all psychiatric treatments.
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✘   The appeal in the Supreme Court of Canada right now might strike down involuntary treatment or change the Mental Health Act.
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   The case challenges only one subsection of one provision of the Mental Health Act. It also challenges two related paragraphs of the Representation Agreement Act and the Health Care (Consent) and Care Facility (Admission) Act that enable the deemed consent model by overriding the usual health care consent rights.

   The case does not challenge the criteria, time periods, or process for involuntary admission and detention. Nothing about the criteria, time-periods, or process for detaining people in hospital will change because of the case.

    If the case succeeds and the “deemed consent” laws are struck down, the BC government can make new laws that comply with the Charter. There are many other models of health care consent for psychiatric treatment decisions across Canada. Indeed, BC is the only province that continues to use this “deemed consent” model.

   The case argues that people should be assessed to see whether they are actually capable of making psychiatric treatment decisions. Only people who are assessed as being capable of making treatment decisions should be allowed to make their own decisions.

   The case argues that people should be allowed to plan ahead for a time of crisis to involve a trusted family member or friend in treatment decisions in the event they are unable to make decisions themselves.

    Health care providers are authorized to provide treatment in urgent or emergency situations without seeking consent under a distinct emergency provision in the Health Care (Consent) and Care Facility (Admission) Act. The case does not challenge this emergency provision. The case is not arguing that health care providers need consent from the individual or anyone else before providing treatment in a mental health emergency.

    The case does not take a position on any other health care consent models from other places in Canada. If the case succeeds, it will be up to the government to decide which is best. The government could also create its own new model.

    Many people benefit greatly from psychiatric treatment. The case takes no position at all on any psychiatric treatments. The case simply argues that people with mental disabilities and their loved ones should have the same rights to access effective treatment and make meaningful recovery plans just like everyone else.

    The Supreme Court of Canada is considering whether the Council of Canadians with Disabilities has standing (the legal right) to bring the case forward. The Supreme Court of Canada is not considering whether to strike down or change any section of the Mental Health Act.