Charter challenge to deemed consent in BC: What does this mean?
In May 2025, a trial to consider a Charter challenge to the deemed consent regime in the BC Mental Health Act will begin in BC Supreme Court. Health Justice has been granted leave to intervene to present our unique organizational perspective to assist the Court in considering the issues raised in the case. Before getting into the details of this Charter challenge, let’s take a closer look at what “deemed consent” means.
What is deemed consent?
Health care consent laws establish how health care providers must seek consent for proposed health care, like treatment. Generally, when a health care provider proposes treatment, it is the patient’s right to consent or refuse consent to the treatment based on their values, wishes, and beliefs. The law provides strong protections for patients to give or refuse consent on any grounds, including moral or religious grounds, even if the refusal will have very serious consequences, such as death.
If a health care provider is concerned that a patient may not understand the health care consent decision because of something like a mental illness or brain injury, then health care providers must assess the capability of the patient to make the decision. If the patient has capability to make the decision, the patient’s decision must be respected, even if it is one that others disagree with.
However, if the patient is assessed as incapable of making the decision, then the health care provider must seek consent or refusal to the proposed treatment from another source. This source could be:
a representative chosen by the patient in a Representation Agreement,
an instruction the patient wrote in an Advance Directive, or
a family member or friend assigned as a Temporary Substitute Decision Maker.
The deemed consent regime overrides these rights for involuntary patients when it comes to psychiatric treatment decisions. Section 31 of the Mental Health Act states that involuntary patients are “deemed” to have consented to any form of psychiatric treatment that the treatment team at a detaining facility or community-based mental health team authorizes. Since the law creates a fiction that consent already exists, involuntary patients aren’t assessed to see whether they are capable of making treatment decisions. This means involuntary patients who are capable of making their own treatment decision do not have the right to consent to or refuse the proposed treatment. It also means that if an involuntary patient is not capable of making the decision, health care providers do not have to seek consent from another source. Any plan the patient made through a Representation Agreement or Advance Directive would have no legal effect. Families and personal supporters are excluded from decision-making on behalf of their loved ones.
The deemed consent regime removes processes present in other health care consent decisions, like an assessment of capability to make the decision and seeking consent from another source (ex. Advance Directive or a trusted family member).
What can deemed consent look like in practice?
Here are fictional examples informed by lived experience expertise of what the deemed consent regime can look like in practice.
Ty is involuntarily admitted to a facility and is given a medication that has a strong sedative effect at night. As someone who has experienced gender-based violence in the past, sleeping very heavily because of the sedative effect makes her feel unsafe in the facility. She has also found her current treatment plan hasn't been meeting all of her needs and knows that being able to add in her Nation's medicines would greatly help her in her wellness journey. However, she has found that she’s been too groggy from the medication to be able to arrange access to traditional medicines and cultural supports. When Ty asks the nurse if she can take a different medication, the nurse says it’s what the doctor ordered and Ty has to take it or a medication will be forcibly injected. Two weeks later when Ty’s husband is visiting, he raises concerns with the treating psychiatrist about the side effects that he’s witnessed Ty experience with these medications. While the treating psychiatrist listens to Ty’s husband, deemed consent means there is no requirement for the psychiatrist to change the medication. Even if Ty made a Representation Agreement appointing her husband as her legal representative, the psychiatrist would still have no requirement to seek consent for medications from her husband when she is not well.
Hailey has been on extended leave for over three years as an involuntary patient under the Mental Health Act. One of the conditions of their leave is that Hailey has to go to a pharmacy every day at the same time to have the pharmacist witness Hailey take their medication. If they miss going to the pharmacy, they get contacted by their supervising mental health team the next day who make it clear that if they miss going to the pharmacy they could be recalled back to a facility. Hailey feels embarrassed having to go to the pharmacy every day to be watched taking their medication in front of everyone in line in the store and believes they are far enough along in their recovery that they want to manage their own medication. They ask their psychiatrist whether they can have their medication a week at a time to take on their own at home. The psychiatrist refuses this request and deemed consent means that Hailey has no other way to challenge or seek review of the requirement to continue going to the pharmacy every day.
These examples show how the deemed consent regime can be applied to people in BC. Now we’ll cover the Charter challenge to the deemed consent regime.
What is the Charter challenge?
The non-profit disability advocacy group, the Council of Canadians with Disabilities, is bringing the case to argue that the deemed consent regime in the BC Mental Health Act violates rights guaranteed in the Canadian Charter of Rights and Freedoms. The BC government is arguing that the deemed consent regime does respect those rights. When courts in Canada decide that a law violates the Charter a common outcome is that the court will declare that the law should be struck down, but will suspend (pause) that declaration to give government time to create a new law that does respect the Charter.
What will the Charter challenge consider?
In this case, the Court will only be deciding whether the deemed consent regime complies with the rights guaranteed by the Charter. The Court will not weigh in on whether involuntary treatment can ever be justified in Canadian law. There are many other models for involuntary treatment in other provinces and territories that have different processes and safeguards for involuntary treatment, such as requiring an assessment of capability to make health care consent decisions, involving a family member/personal supporter as a substitute decision-maker, or providing oversight of treatment decisions from a tribunal or court. BC is the only province or territory in Canada that uses a deemed consent regime and the Court’s decision will be limited to considering the impact, process, and safeguards of this BC approach.