CLAS’s client, the Council of Canadians with Disabilities (CCD), started its court case to challenge BC’s laws governing consent to treatment for involuntary psychiatric patients over nine years ago. On the last day of what was a lengthy and expensive trial, the government announced that it was repealing one of the central provisions that CCD has been challenging for nearly a decade: section 31(1) of the Mental Health Act.
For over forty years, this section has granted facilities that detain involuntary patients an unreviewable power to impose psychiatric treatment without consent from the patient, their family members, or legal representatives. By deeming involuntary patients to consent to any treatment authorized by a facility’s director, section 31(1) created an exception to the consent-based framework that governs all other medical care in the province.
Section 31(1) of the Mental Health Act was clearly unconstitutional and needed to be repealed. But CCD is concerned that the government’s timing, approach, and messaging has created confusion for health care workers, involuntary patients, and the public at large.
For decades, the government insisted that the deemed consent provision in section 31(1) of the Mental Health Act was what allowed facilities to treat involuntary patients without obtaining consent from them or their families. But now, as it repeals section 31(1), the government claims it was never anything more than a “limited liability shield”. According to its new position, the ability to treat without consent comes instead from the power to sign a form under section 8(a) of the Act.
This eleventh hour reinvention of the Mental Health Act, which contradicts everything the government has previously said both inside and outside of the courtroom, appears to be based on the litigation strategy recently adopted by Counsel to the Premier, who took over this case late in the day from lawyers employed by the Attorney General’s office.
CCD strongly disagrees with the government’s position. As CCD has maintained — and will continue to maintain throughout this litigation — the legal authority to administer involuntary psychiatric treatment depends on section 31(1). CCD will ask the Court to find that by repealing section 31(1), the government has removed, without replacing, an essential component of the legal authority to provide treatment to involuntary psychiatric patients without following the ordinary rules of health care consent. This is why it is so confusing to hear the government say that the amendments in Bill 32 are about shielding health care workers from liability.
These amendments are not a serious attempt to address BC’s longstanding Charter non-compliance. CCD will therefore continue its lawsuit notwithstanding the repeal of section 31(1) of the Mental Health Act.
And more importantly, beyond the current litigation, British Columbians have been promised a comprehensive review of the Mental Health Act. The government must deliver. CCD wants to see thoughtful and comprehensive reforms that ensure access to the highest quality health care without violating fundamental rights.
No other province or territory in Canada delivers involuntary psychiatric treatment in this manner, and British Columbia should not either. The province’s outcomes over the past four decades have not been better than those in the rest of the country. Many would say they have, in fact, fallen short. Bill 32 will not change this. Piecemeal amendments like those contained in Bill 32 accomplish little more than creating confusion.