British Columbia’s Mental Health Care
On the Topic of Mental Health Law in British Columbia – There Is News
About a year ago we posted a page on this topic about the dilemma in British Columbia, a Province in Canada, and its seemingly overly strict interpretation of their laws about treating people with psychiatric diagnoses. The law is called the Mental Health Act. Under this Act people who are involuntarily detained, or out of the hospital on leave, have no right to give or to refuse consent for any psychiatric treatment. Under the law they are said to have consented, “deemed to consent”, to all psychiatric treatment. Medications can be given against their wishes. The Law would even allow electroconvulsive therapy that they don’t want. This situation holds even when they would be capable of making their own treatment decisions. They aren’t even allowed the right to a substitute decision maker, a legal representative or family member, to give or refuse consent on their behalf.
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The Legal Battle
A nationally respected disability rights organization called the Council of Canadians with Disabilities (CCD) has been challenging British Columbia’s interpretation and enforcement of these forced psychiatric treatment laws. Two legal entities, the Community Legal Assistance Society (CLAS) and the law firm McCarthy Tétrault LLP, have been representing the Council of Canadians with Disabilities to pursue what is called a “Charter Challenge” to the “deemed to consent” provisions in the laws called the Mental Health Act, the Representation Agreement Act, and the Health Care (Consent) and Care Facility (Admission) Act. The government of British Columbia has been battling for five years to keep the “Charter Challenge” from even getting to court.
The Big June 23, 2022 Breakthrough Decision
The case rose through the court system all the way up to the Supreme Court of Canada. And, the Supreme Court ruled on June 23, 2022, that the “Charter Challenge” to these forced psychiatric treatment laws can continue, that is, can get into court. The Supreme Court rejected the British Columbia government’s five-year legal campaign to stop the “Charter Challenge” by the Council of Canadians with Disabilities. The Supreme Court rejected the government’s appeal and, further, confirmed that the Council of Canadians with Disabilities has the legal right to move their case forward. And, even more remarkable, the Supreme Court ordered British Columbia government to pay for all legal costs that were generated by the unnecessary five-year delay.
More About the Decision of the Supreme Court of Canada
Michael A. Feder, Kings Counsel, is one of the lawyers with the law firm McCarthy Tétrault LLP, and he argued the case on behalf of the Council of Canadians with Disabilities. Mr. Feder said, “The Supreme Court unanimously and decisively resolved the standing question in CCD’s favor. This ruling has broad importance for access to justice and for ensuring discriminatory and other unconstitutional laws can be challenged in court.” Heather Walkus is the Chair of the Council of Canadians with Disabilities. She added, “This decision is a victory for all grassroots and community organizations standing up for the legal rights of people who face barriers accessing justice. This would not have been possible without the support of all the community organizations who showed up to intervene in the Supreme Court of Canada on this critical issue.”
The Pathway to Hope and the Rights-Advisor Service
Alongside these developments in the court system, the Attorney General announced in the Spring of 2022 new legislation and a new service. How this aligns with the lawsuits is not clear. The Province of British Columbia put forward legislation that is proposed to assist those in a mental health situation or crisis to understand their rights and to have access to the supportive services available. The legislation supposedly will amend the Mental Health Act to give access to an independent legal rights advisor for those involuntarily admitted under the Mental Health Act. The plan is for these advisor services to be ready in 2023. The services mostly will be “virtual”, that is, by telephone or videoconference. But, they can be in-person at times. The services will come from a team of independent rights advisors who will provide information and answer questions about rights and options under the Mental Health Act.
So, If That’s The News, Here’s the Problem The News Is Meant to Solve
A year ago we detailed the upset of some citizens in British Columbia. It’s the only Province in Canada that has latched onto what are seen as outdated interpretations of the Canadian Charter of Rights and Freedoms. We had put an article about the situation in our monthly Newsletter, and in response heard more about the complaints from people in British Columbia who knew extensively about the legal cases. We at the Neuroscience Research and Development Consultancy feel that it’s important to know what’s going on in different parts of the world regarding medical care for schizophrenia, bipolar disorder, and similar medical conditions.
More Details on The Whole Situation
Forced Treatment for Mental Health Conditions in British Columbia
This whole situation has really blown up into quite a problem. Especially loud among the Canadians in British Columbia are the voices of families of individuals with severe mental illness such as schizophrenia and bipolar disorder. Here’s the dilemma. Patients in British Columbia can be tossed into treatment whether they consent to it or not. And family members who try to step in to help with treatment decisions are ignored. Worse than just ignored, they are blocked from assisting with their relative’s needs. It’s a complicated situation, so if you want to know more, read on.
About “The Charter” and the “Charter Challenge”
“The Charter” is shorthand for a big piece of the Canadian constitution. The full name is the Canadian Charter of Rights and Freedoms. The legal and ethical intent of the Charter is to set out the rights and freedoms that Canadians believe are necessary in a free and democratic society. (It’s sort of like the Constitution and Bill of Rights in the United States.) A “Charter Challenge” is a legal court case started by citizens against the government when people believe that the government has gone too far, beyond the intent of the Charter. So, they challenge the Charter in court.
Who Are the Good Guys and Who Are the Bad Guys?
Before we get too deep into this good vs. evil discussion and start sounding like insurrectionists, we need to point out that, in the whole of the country of Canada, British Columbia is the only Province or Territory that still uses the antiquated “deemed consent” model for treating mental illness. More on this below. And the deemed consent model is a huge problem for some people.
The Council of Canadians with Disabilities Are The “Good Guys”
It’s pretty easy to see that the Council of Canadians with Disabilities, that is, the CCD, are most likely the good guys. Melanie Benard of the CCD said in an April 6, 2021 press release, “We’re appalled that the B.C. government is doing everything it can to prevent this case from getting to trial. In the meantime, people’s rights are being violated. B.C. is the only jurisdiction in Canada that still uses a ‘deemed consent’ model. The province’s outdated laws violate the Canadian Charter and the UN Convention on the Rights of Persons with Disabilities. CCD is eager to have its day in court and we hope the government won’t prevent that.” The government of British Columbia appealed the Charter Challenge to the Canadian Supreme Court.
Sadly, That Would Seem to Leave the Government of British Columbia as the “Bad Guys”
So, the good guys filed a Charter Challenge against British Columbia’s outdated Mental Health Act and related laws. The government of British Columbia tried to block that Challenge. Specifically, the Challenge that British Columbia was trying to block is a Challenge against the “deemed consent” provisions in several acts in the Charter, namely, the Mental Health Act, the Representation Agreement Act, and the Health Care (Consent) and Care Facility (Admission) Act.
“Deemed Consent” Can Be Pretty Awful
If you’re a person with a mental health medical condition, “deemed Consent” can be a miserable part of the law. That’s because “deemed consent” means that when people are involuntarily detained under British Columbia’s Mental Health Act they have no right to give consent to or refuse consent to any psychiatric treatment. And it’s only British Columbia that uses “deemed consent”. No other Canadian Province or Territory. This lack of any right to have a say in their own care is also true if they are released from the hospital on leave. “Deemed” here is a legal term. It means people detained for their mental health are “deemed” to have given consent to any and all psychiatric treatment. Even when they are mentally capable of making their own treatment decisions, they can be forced to take medication or be treated with ECT (electroconvulsive therapy).
The British Columbia Government Even Blocks the Help of Family Members
The family is barred from helping in care decisions because the law says these detained individuals do not have the right to a substitute person to help with treatment decisions. This means a substitute even like a family member. So the ill person cannot chose to have a family member step in for them to allow or refuse treatment consent.
What the Community Legal Assistance Society Says
In the same April 6, 2021 press release mentioned above, Kevin Love, a lawyer with the Community Legal Assistance Society had this to say. “We are disappointed that the B.C. government continues to fight a community group standing up for people’s rights instead of fixing the problems with B.C.’s outdated mental health laws. Access to justice is a huge problem right now. It’s hard for marginalized people living with mental health conditions to endure years of litigation, especially when the government is fighting you tooth and nail. Unless community organizations can take important issues forward, unconstitutional laws may never get reviewed.”
What’s the Community Legal Assistance Society (CLAS)?
The Community Legal Assistance Society (CLAS) is a non-profit legal aid society incorporated in 1971. I guess one would have to say they’re also one of the good guys. It’s a partnership between the private bar and community groups to provide legal aid to people facing discrimination and marginalization. It has given these free legal services to people in British Columbia since it started in 1971. It works for citizens in the areas of mental health, human rights, housing, income security, and workers’ rights. CLAS has helped tens of thousands of people over the years through law reform, test case litigation, systemic advocacy, delivery of public legal education, summary advice, workshops, and representation of clients before administrative tribunals and the courts.
What’s the Council of Canadians with Disabilities (CCD)?
The Council of Canadians with Disabilities (CCD) is a Canadian national human rights organization of people with disabilities working to make all of Canada accessible and inclusive. It was started in 1976. There are nine provincial member groups, seven national disability organizations, and one affiliate member. Its mission includes law reform, policy development, and test case litigation in support of persons with disabilities.