Alberta’s Mental Health Law Unconstitutional – What does that mean for BC?
A recent court case from Alberta shows how far BC’s mental health law needs to go to support the human rights of people being detained and involuntarily treated. The Alberta courts found that several aspects of the Alberta Mental Health Act were unconstitutional and struck down the laws – giving the government time to write new mental health laws that fulfill the human rights of involuntary patients.
Mental health laws are provincial so each province has its own legislation – but what does this mean for BC? How do the safeguards in BC’s Mental Health Act compare with Alberta’s?
The JH v Alberta Case
The case was brought by JH, a member of a First Nation in BC who was working in Alberta. JH was 49 years old with no history of mental illness when he was hit by a car and suffered injuries to his leg and back. JH went to the hospital for treatment related to those injuries and after 20 days in the hospital, he tried to leave. Instead, he was certified under the Alberta Mental Health Act and involuntarily detained. In more than nine months of detention, he left the hospital to go outside only twice.
There were lengthy delays in connecting him with the Alberta Patient Advocate office, but once finally connected, that office helped him arrange for a hearing to challenge his detention and helped him find a lawyer to represent him. He and his lawyer took his case to the Alberta courts, who found that not only were JH’s constitutional rights violated by his treatment, but also the Alberta Mental Health Act itself was unconstitutional.
The Alberta Court of Appeal identified four general failings of Alberta’s Mental Health Act:
1. The criteria for detention were too broad – the Act deprived involuntary patients of freedom more than was necessary to provide mental health treatment. The Act allowed detaining people to protect them from harm that was unconnected to a mental disorder.
2. The review of detention was not frequent enough – the Act guaranteed that an independent review of detention would automatically take place after six months. Involuntary patients could seek a review of their detention before that, but the onus was on them to ask for it. The Court found that this was not a sufficient safeguard because it creates a risk that people would be detained for longer than is necessary.
3. No guarantee the detaining facility will disclose records in time to prepare for a hearing – when an involuntary patient’s detention was reviewed, the Act did not require the detaining facility to disclose medical records in time to ensure that patients and their advocates could know and prepare for the case they were going to meet at the hearing. The Court found this was procedurally unfair.
4. The legislation did not ensure access to legal advice and representation – even though the Alberta government has funded an independent Patient Advocate office that involuntary patients can ask to speak with to get assistance exercising their rights, patients have to initiate the service. The Court found that Act did not guarantee that the important constitutional right to get independent legal advice and representation was automatically fulfilled for everyone.
How Does BC’s Mental Health Act Compare?
If the safeguards in Alberta’s Mental Health Act were found insufficient to fulfill important constitutional rights, how does BC’s Mental Health Act compare? Not well. All the failings identified in the Alberta Mental Health Act are present in BC’s Mental Health Act – or worse.
This table sets out the key reasons the Alberta Court of Appeal found Alberta’s Mental Health Act unconstitutional, compared with BC’s Mental Health Act. BC’s Act contains all the same problems and some are worse.
Detention and involuntary treatment has a significant impact on an individual’s dignity and human rights. Safeguards like automatic reviews and independent legal advice and advocacy are crucial tools to ensure that when our health systems take such a serious step, it does so in a way that ensures transparency to avoid discrimination and misuse of power. While illegal detentions and rights violations can occur to any involuntary patients if there aren’t sufficient checks and balances in place to monitor how our mental health system is functioning, this is even more likely to occur to people who experience more marginalization and discrimination in state systems, such as Indigenous people.
The Alberta government is taking steps to reform their Mental Health Act to make sure there are better safeguards in place. It’s time for BC to reform our laws to make sure that our mental health system respects the important human rights protected in our constitution.