Everyone deserves to control their own health care

In BC, people with involuntary status under the Mental Health Act have no right to make decisions about their psychiatric treatment. The law says that everyone with involuntary status is ‘deemed’ to consent to all forms of psychiatric treatment and can be forcibly administered psychotropic medications and electroconvulsive therapy. The deemed consent law also prevents people from making a plan while they are well about psychiatric treatment they want when they have a crisis and prohibits family members or friends from making psychiatric treatment decisions for people with involuntary status.

In September 2016, the Council of Canadians with Disabilities and two individuals who had experienced forced psychiatric treatment filed a Charter challenge to the deemed consent laws. The case challenges the deemed consent laws in BC that remove any right for involuntary patients to make psychiatric treatment decisions, either for themselves or through a trusted family member or friend. In October 2017 the two individuals discontinued their participation in the case and the case is proceeding with the Council of Canadians with Disabilities. The Council of Canadians with Disabilities is represented by lawyers at the Community Legal Assistance Society and the law firm McCarthy Tétrault.

I was not given any say

My clothes were stripped off me and I was pinned down by four male security guards while someone injected a needle into my backside. I was not given any say in my treatment, and even my mom was not allowed to make decisions for me. I’ve learned how to manage my depression with cognitive behavioural therapy and support from my family. I want to be able to direct my own treatment and recovery.

Sarah was 24-years-old when she voluntarily went with her mother to a BC hospital for help with feelings of depression. Sarah was then involuntarily detained and treated. She says being forcibly medicated is terrifying and dehumanizing.

BC is the only place in Canada where everyone with involuntary status is “deemed” to consent to all forms of psychiatric treatment, without safeguards like an assessment of their capacity to make treatment decisions, recourse to an independent decision maker, and an effective way for involuntary patients to challenge that treatment. This disturbing approach to forced treatment reinforces harmful stereotypes by equating having mental health problems with being incapable of participating in their own recovery. People who have been forcibly treated can be traumatized by the experience and delay or avoid seeking mental health services again in the future, which ultimately undermines access to mental health care.

Case Updates

November 2020: We were disappointed to learn that the government now intends to take its fight against the Council of Canadians with Disabilities’ (“CCD”) public interest standing all the way to the Supreme Court of Canada. The Attorney General of BC has sought leave (permission) to appeal the BC Court of Appeal decision finding that CCD was wrongly denied public interest standing. It has now been over four years since CCD filed its Charter challenge to BC’s outdated laws that violate the health care and consent rights of people detained under the Mental Health Act. Rather than showing leadership by reviewing BC’s outdated laws, or even letting a judge decide whether the laws are constitutional, the BC government continues to argue that CCD should not be allowed to stand up for people who face barriers accessing the court system.

Past Case Updates

August 2020: In August 2020, the BC Court of Appeal overturned a decision that had dismissed the Council of Canadians with Disabilities’ Charter challenge to the laws governing forced psychiatric treatment in BC. The Court of Appeal’s decision confirms the importance of grassroots organizations that stand up for the legal rights of people who face barriers accessing the justice system.

The decision under appeal found that CCD lacked standing (the legal right) to bring the case forward. CCD appealed, arguing that people with mental disabilities, particularly those detained under the Mental Health Act, face many challenges when trying to access the courts. Unless community groups and organizations take important issues forward, unconstitutional laws may never get reviewed. The Court of Appeal allowed the appeal and agreed that CCD’s case was improperly dismissed.

See our press release here.

August 2018: In August 2018, nearly two years after this case started, the BC government brought an application arguing that the Council of Canadians with Disabilities (“CCD”) should not be allowed to bring the case to trial. The government said that CCD did not have “standing” – or the legal status – to stand up for the rights of people with mental disabilities in court. It is very common for non-profit organizations to file Charter challenges to laws that impact the communities they serve because marginalized individuals often face barriers to launching and sustaining lengthy court cases. However, on October 12, 2018 the BC Supreme Court decided that CCD did not have standing and dismissed the case before it went to trial (read the decision here). CCD has appealed the BC Supreme Court’s decision.

Public interest standing is an important way to improve access to justice for marginalized communities. People with mental disabilities, particularly those detained under the Mental Health Act, face many barriers to accessing the courts. Charter cases take many years and significant resources to wind through the courts. Individuals who file Charter challenges face the risk of public exposure of their identity, stigma and discrimination, a loss of privacy over confidential psychiatric records, the risk of court costs being awarded against them, potential reprisal from health care providers and personal supporters, and significant stress and upheaval in their lives. For these reasons, many important cases would never get to court unless non-profit organizations like CCD come forward to take on important Charter challenges.

It is disappointing that the government chose to challenge the ability of non-profit organizations to represent the communities they serve in court instead of coming to court to address the issues. The serious questions raised by this Charter challenge about the rights of people with mental disabilities deserve to be considered in court.