By Kevin Love, Lawyer with the Community Law Program
Today, the government of British Columbia is continuing its five-year campaign to prevent the courts from reviewing the province’s outdated and unconstitutional Mental Health Act (the “MHA”). After losing in the BC Court of Appeal, the government has now gone all the way to the Supreme Court of Canada in a bid to throw out a Charter challenge brought by the Council of Canadians with Disabilities (CCD) to the sections of the MHA and related legislation that strip people of their basic psychiatric health care consent rights. The government says this Charter challenge should only be allowed to go forward if an individual actually detained under the MHA is willing to endure the years of stress, hardship, and expense associated with taking the case to court. The government of BC has said repeatedly that it is committed to improving access to justice in our province. Their continuing tactic of pursuing technicalities through our courts so the real legal issues never get addressed denies access to justice to people struggling with the deficiencies of our mental health system.
BC’s approach to forced psychiatric treatment has been widely criticized by the United Nations, academics, the BC Ombudsperson, and other non-profit organizations.[1] Courts have already ruled that systems like ours are unconstitutional.[2] So why is the BC government fighting so hard to keep CCD’s case out of court? There is no other province in Canada that still deems every single person under mental health legislation to be incapable of providing consent to psychiatric treatment without any meaningful assessment of the person’s capacity. In BC, even people who have been living independently in the community for months have no right to control their psychiatric treatment if their doctor decides to keep them controlled under the MHA. People who do need support making treatment decisions are also stripped of their right to have a friend, family member, or an appointed representative act as a supportive or substitute decision maker. The hospital can simply administer whatever treatment it wants, often without explaining what that treatment entails.
It’s time for change. BC should be a leader in mental health care, not the last province clinging desperately to an outdated and unconstitutional system. People with lived experience and the organizations who support them are ready to come to the table to help build a world-class health care system whenever the BC government is willing to stop fighting and start making meaningful change.
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[1] B.C. Ombudsperson, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act (March 2019) at 48, 53; R. Dhand & K. Joffe, “Involuntary Detention and Involuntary Treatment Through the Lens of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms” (2020), 43 Man. L.J. 207, at 223; M. Groves, “Suggested Changes to BC’s Mental Health System Regarding Involuntary Admission and Treatment in Non-Criminal Cases” (Position Paper of the BC Civil Liberties Association, 2011); S.N. Verdun-Jones & M.S. Lawrence, “The Charter Right to Refuse Psychiatric Treatment” (2013), 46 U.B.C. L. Rev. 489, at 513-19; S. Nunnelley, “Coercive Care in Civil Mental Health Law: An Autonomy Lens” (Munk School of Global Affairs, University of Toronto, 2015), at 6-10; I. Grant & R. Dhand, “Charter Challenge to B.C. Mental Health Act Long Overdue”, Vancouver Sun (23 September 2016); B. Froese, “British Columbia, Equality, Dignity and Inclusion: An Evaluation of British Columbia’s Mental Health Laws, Policies and Service Standards” (Report to the B.C. Law Foundation, 2017); U.N. Special Rapporteur on the Rights of Persons with Disabilities, “End of Mission Statement” (12 Apr. 2019); Canadian Centre for Elder Law, Conversations About Care: The Law and Practice of Health Care Consent for People Living with Dementia in British Columbia (2019), at 36-37; Dhand & Joffe, at 222-48; Standing Senate Committee on Social Affairs, Science and Technology, Out of the Shadows at Last: Transforming Mental Health, Mental Illness and Addiction Services in Canada, at 70, 84 (May 2006).
[2] See for example Fleming v. Reid (1991), 82 DLR (4th) 298 and Starson v. Swayze, 2003 SCC 32