Court decision shows barriers to enforcing human rights under Mental Health Act

On August 26, 2020 the BC Court of Appeal released the latest decision in the years-long constitutional court challenge to the “deemed consent” sections in the Mental Health Act and related laws. While the case raises serious questions about whether the current law complies with the Canadian Charter of Rights and Freedoms (“Charter”) the most recent court decision doesn’t answer those questions. But it does show why we need to think of strategies in addition to litigation in order to create change to BC mental health laws.

Background of the case

In BC the law says that every adult is presumed to be capable of giving, refusing, or revoking consent to health care.(1) Health care providers must not provide health care without consent(2) and there are specific rules in place if someone cannot give consent to ensure that the people in an adult’s personal support network, like a spouse, an adult child, a parent, a sibling – the people who know them best – are able to make decisions on their behalf.(3)

But, if you have involuntary status under BC’s Mental Health Act, the deemed consent laws say that you are “deemed” to have already provided consent to any kind of psychiatric treatment authorized by a health care provider.(4) This creates a legal fiction: you have not given your consent to the health care, nor has anyone in your personal support network, but the law says that consent already exists. The deemed consent laws include an override on all the health care consent rights and prohibitions on using planning documents like advance directives and representation agreements.(5) That means if you have involuntary status under BC’s Mental Health Act you are not entitled to the same rights everyone else is.

In 2016, the Council of Canadians with Disabilities and two individuals who had experienced forced psychiatric treatment filed a claim in BC Supreme Court alleging that these deemed consent laws violate human rights under the Charter. Learn more about the case here.

Where the decision leaves Mental Health Act reform

Instead of proceeding to a trial where the validity of these human rights claims could be decided, the BC government chose to make an application that argued the case should not be allowed to go to trial. The BC Court of Appeal’s recent decision is part of a long and complex process in which the courts decide whether, for procedural reasons, the litigants that filed the case can proceed. Four years after the original claim was filed, that question has still not been answered.

This graphic shows in very simplistic form the process BC is using to fight the case. As a result of the most recent decision, the case is basically back where it started four years ago.

Why is it so hard to enforce human rights through the courts in BC?

The recent decision makes clear how difficult it is to bring a court case to assert human rights under the Charter in BC.

It is hard for any individual to launch and sustain constitutional cases for the years it takes this litigation to wind its way through the court systems, and that’s especially true for people who experience marginalization and barriers due to a disability. That’s why constitutional litigation in Canada is often advanced by public interest organizations, whether that’s the Canadian Doctors for Refugee Care bringing a case about the Charter rights of refugees(6) or the BC Civil Liberties Association and John Howard Society challenging legislation impacting prisoners,(7) or the Empowerment Council proceeding with a constitutional challenge to mental health legislation impacting the rights of involuntary patients.(8)

Another access to justice barrier people who have experienced involuntary psychiatric treatment under the Mental Health Act face is how to even get connected with lawyers to get legal advice and representation. When you are detained in Canada, you have a constitutional right to legal advice. But there is no legal aid funded service in BC to provide legal advice when you are detained under the Mental Health Act. We are far behind the rest of Canada on this – BC is one of the few Canadian provinces that does not have any form of legal advice service for mental health detainees.(9) This might be part of the reason that while other provinces mental health legislation has evolved in response to constitutional challenges over the years, it’s been decades since a constitutional challenge to BC’s Mental Health Act has made it to court.(10)

Litigation is not the only way to create change

The reality is that, while enforcing rights through the courts is crucial and important, it is not the only way to change law. Even if this Charter challenge is successful, a court will only order the BC government to correct the human rights violations in the deemed consent laws; it will not tell the government what the new laws should be. And it would not address any of the other human rights issues in the rest of the Mental Health Act.

The BC government does not need to wait until a court orders change to modernize the Mental Health Act. The government can reform law at any time based on consultation with the people and organizations impacted by the law. Other Canadian jurisdictions have taken the initiative to find their own solutions: they have hired retired Supreme Court of Canada judges(11) or independent researchers(12) to conduct systemic reviews to evaluate whether their legal framework was serving people and fulfilling constitutional requirements and promoting human rights.

The approximately 15,000 people detained under the BC Mental Health Act each year should not have to wait years for a case to wind its way through courts. Just imagine what the BC Mental Health Act could look like now if the BC government had, instead of fighting the ability of a disability group to bring a human rights case to court, used the last four years to transform the law to promote human rights principles and evidence-based best practices.

Sources:

(1) Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 3(1) [HCCCFA Act].

(2) HCCCFA Act, s. 5.

(3) HCCCFA Act, ss. 11, 16.

(4) Mental Health Act, R.S.B.C. 1996, c. 288, s. 31

(5) HCCCFA Act, ss. 2(b) and (c); Representation Agreement Act, R.S.B.C. 1996, c. 405, ss. 11(1)(b) and (c).

(6) Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651.

(7) British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62.

(8) Thompson and Empowerment Council v. Ontario, 2013 ONSC 5392.

(9) Ombudsperson’s Special Report No. 42, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act, (March 2019), p. 84.

(10) See for example, PS v Ontario, 2014 ONCA 900; JH v Alberta Health Services, 2019 ABQB 540.

(11) Minister of Health and Wellness, “Report of the Independent Panel to Review the Involuntary Psychiatric Treatment Act and Community Treatment Orders”, by Gérard V. La Forest and William Lahey (Halifax: Minister of Health and Wellness, submitted 10 July 2013).

(12) Ontario Ministry of Health and Long-Term Care, “Report on the Legislated Review of Community Treatment Orders, Required Under Section 33.9 of the Mental Health Act”, Dreezer & Dreezer Inc. (December 2005).