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.