What could implementing Indigenous rights in BC’s mental health law look like?
This summary comes from Parts 6, 7 and 8 of our publication “Pathologize the systems and not the people:” Decolonizing BC’s mental health law. We are grateful for the expertise and leadership shared with us to shape this work and encourage people to read the publication in full.
When talking about transformational law and policy change in B.C.’s mental health system in a way that centers decolonization, it is important to consider the context of why the system is the way it is. The effects of genocide, colonialism, and racism have undermined – and continue to actively undermine – the fundamental human rights of Indigenous people to maintain access to traditional approaches to wellness and to enjoy an equal opportunity to be healthy.
In recent decades, there has been growing mainstream acceptance of the idea that our health and wellness is shaped by more than just our individual actions or biological traits. Importantly, this understanding that health and well-being is shaped by the holistic context of our lives has always been included in many diverse Indigenous understandings of health.
BC’s Mental Health Act operates within the mainstream health system and its documented, entrenched racism.
There are many tools of colonialism that were fundamentally designed to erode and remove self-determination through:
breaking down systems of government and community
breaking kinship
removing identity and community membership from community control
Involuntary treatment can be experienced as yet another way of suppressing autonomy and pathologizing the impacts of and resistance to ongoing colonization.
However, in the face of genocide, colonization, and racism, First Nations, Métis, and Inuit people have and continue to resist the systemic suppression of Indigenous community and centre understandings of health and wellbeing. To learn more about this context please see our previous blog post on colonialism, resistance, and mental health inequities.
There are multiple ways that BC’s Mental Health Act may create further inequity for Indigenous people and reflect entrenched colonial approaches.
1. Colonial conceptions of risk and racist stereotypes
“Colonized systems define risk and safety for us. They don’t align with Indigenous community and culture.”
— Dr. Sarah Hunt / Tłaliłila’ogwa
For some First Nations, Métis, and Inuit people in BC, the involuntary treatment system is a continuation of the control and repression of community self-determination and traditional health practices, replacing them with government control and colonial understandings of risk and wellness.
There is a colonial pattern of locating risk and inherent vulnerability within Indigenous people instead of within systems of genocide, colonialism, and racism. Determinations about whether to exercise power to detain and involuntary treat someone under the Act can easily be influenced by racist stereotypes of incapability and non-compliance commonly applied to Indigenous people in BC’s health system.
2. Barriers to community, family, and personal autonomy
The Act removes the power of involuntary patients to make decisions on their own psychiatric health care treatment and excludes family and loved ones from these decisions. For First Nations, Métis, and Inuit people who experience involuntary treatment under the Act, this excludes the people who may have most familiarity with their cultural practices and who may be able to help support access to culturally based health supports. As well, family connections can also be undermined by the involuntary treatment process, by forcibly separating Indigenous parents from children, controlling visits and phone access, or leading to increased surveillance and child apprehension by the child welfare system.
3. Barriers to cultural practices
When a person is detained as an involuntary patient under the Mental Health Act, the detaining facility and staff have nearly total control over not just their treatment but also their movement, activities, and daily life during detention. This can prevent their access to personally, culturally, or spiritually significant clothing and jewelry; services designed to improve cultural safety in the health system like Indigenous health liaisons; land-based health practices in the outdoors; cultural practices like smudging; or even visitors that can support cultural affinity or companionship.
4. Police and criminal justice involvement
The Mental Health Act authorizes police to apprehend and transport a person who appears to have a mental disorder and who is acting in an unsafe manner, and remove a person from their community when conditions are met. When police arrive at a mental health call, they bring immense state power, a deep colonial history, an ongoing role in enforcing colonial compliance, and the ability to use state-sanctioned lethal force and violence. In addition, the documented systemic anti-Indigenous racism in policing in Canada is overwhelming. For many, the presence of police does not support well-being; instead, it raises legitimate fear, anger, and distrust. As well, relying on police as part of the first-line mental health response reinforces stereotypes that Indigenous people are a safety risk when they need health support.
To learn more, visit the summary “Situating BC’s Mental Health Act” here or read part 7 of the full publication.
“We need to be looking at the work as obligations, not recommendations.”
— Goodingaay Guud Jaad / Stephanie Watkins
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which has been incorporated into BC law, sets out interconnected and interdependent human rights that provide a pathway to self-determination, wellness, and equity for Indigenous people. It is artificial to separate out the health-specific rights in UNDRIP for this reason given the holistic nature of health and well-being. Many of the rights protected in UNDRIP support health and well-being through protecting rights related to:
Equality and freedom from discrimination (Articles 1, 2, 15)
Community self-determination (Articles 3, 4, 5, 14, 20, 23, 31, 33, 34, 35)
Traditional and cultural health practices (Article 24)
Cultural, spiritual, and language practices (Articles 11, 12, 13, 31)
Use and stewardship of traditional territories and resources (Articles 8, 10, 25, 26, 28, 32)
Economic security (Articles 5, 12)
UNDRIP is not a magic bullet that will dismantle centuries of colonization and genocide, but it is an important tool that helps provide a baseline for the implementation of Indigenous rights in a meaningful way. When combined with the implementation of other human rights-based principles, BC can create a baseline for a mental health law that protects human rights and wellness for Indigenous people.
Action areas for mental health law reform in BC
As outlined in the list below, we have developed action areas for the implementation of UNDRIP in BC’s mental health law based on the expertise and analysis shared with us from the Indigenous Leadership Group and Indigenous people with lived and living experience.
Many of these action areas align with the provincial government’s Declaration on the Rights of Indigenous Peoples Act Action Plan, released in 2022, and its commitments to uphold the human rights contained in UNDRIP in its institutions, laws, polices, and practices.
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Given how entrenched systemic anti-Indigenous racism is in BC’s health system, BC’s mental health law could include an express acknowledgement of the historic and ongoing harms of colonization and racism. This could include acknowledgement of:
the role of colonization in creating mental health inequities
the disproportionate impacts on Indigenous people through use of coercion and force in the mental health system
the ways in which Indigenous people have resisted colonial oppression and maintained strong community, cultures, and practices that support their wellness today
As an example of this approach, Victoria, Australia’s Mental Health and Wellbeing Act includes a Statement of Recognition that acknowledges colonial harms and the strength of Indigenous communities.
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Community self-determination is the foundation of health and well-being for Indigenous people and communities. BC could expressly acknowledge the role of distinctions-based self-determination as a foundation to Indigenous health and well-being. This could also include acknowledging:
that communities should self-determine their own health and social needs
that free, prior, and informed consent of First Nations, Métis, and Inuit communities must be foundational to the creation, implementation, and evaluation of law, policy, and services that impact them
The exercise of self-determination may also be shaped by the intersecting rights and identities of Indigenous people who may be impacted by the Mental Health Act, such as the issues faced by:
Indigenous people with disabilities
Indigenous women, girls, Two-Spirit, and gender-diverse people
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“We need our people healing our people.” – Jacki McPherson
There is a well-documented, clear need to fund expanded mental health and wellness services that are developed by and for specific First Nations, Métis, and Inuit communities. This is especially true for rural and remote communities. Those services could be:
preventative and supportive of people before they are in crisis
free from state control and coercion
community specific
Communities must be supported to identify their own needs and develop supports to address those needs that align with their own distinct culture, traditions, and health practices.
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There is an urgent need for BC to continue its work to eliminate racism in the mental health system and shift away from a culture based in deeply rooted discrimination. Part of that work includes taking practical and meaningful steps to ensure cultural safety throughout the system, and go beyond metaphorical ideas and buzzwords.
In addition to ongoing work like the BC Cultural Safety and Humility Standard, cultural change can be realized through legislated commitments to cultural safety, including a legal framework to define cultural safety in practice. For example, New Zealand’s mental health law must be used with recognition of the importance and significance of cultural community ties, of how those ties support well-being, and of respect for a person’s cultural identity, language, and religious beliefs.
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Many of the systems of colonialism were and are enforced by police and other uses of force. BC’s current approach to mental health law is almost entirely focused on authorizing various forms of coercion and use of force. BC’s DRIPA Action Plan commits to address;
systemic bias and racism in police
the roles of police in complex social issues related to mental health, substance use, and homelessness
BC can expressly acknowledge these impacts and commit to reducing or eliminating tools of force and control in the mental health system. This can include commitments to:reduce or eliminate the use of tools like seclusion and restraints
ensure that most mental health services are voluntary and that involuntary approaches are only a last resort
limit the role of police in responding to community mental health needs, by including non-police, peer-led, and crisis service models in mental health law
reduce or eliminate the use of tools like seclusion and restraints
ensure that most mental health services are voluntary and that involuntary approaches are only a last resort
limit the role of police in responding to community mental health needs, by including non-police, peer-led, and crisis service models in mental health law
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Mental health law and services can help strengthen an Indigenous person’s connection to their community, territory, and culture, instead of further breaking those connections. Some examples based on the way Indigenous authors have framed the determinants of health for Indigenous people include:
Land:
Expressly acknowledging the importance and validity of land-based healing models
Including provisions that support connections to territory
Increasing the availability of culturally safe, traditional, and land-based healing for substance use
For example, Nunavut’s law expressly includes land-based therapies in its list of mental health services and includes the right to return home for people who are removed from their home communities during involuntary treatment.
Connection to culture, identity, spirituality, language, and traditional health practices:
Ensuring cultural supports are available within every detaining facility
Protecting the right to access distinctions-based cultural supports regardless of legal status as an involuntary or voluntary patient
Acknowledging the value of and protecting the right to access traditional, culturally based health practices
Recognizing the importance of and protecting access to chosen family, personal supporters, Elders, and community members
With the consent of the individual, involving chosen family, personal supporters, Elders, or community members in decision-making
Appointing cultural advisors to be able to help inquire and identify what, if any, cultural supports an individual may choose
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In the face of these longstanding inequities and the continued colonial impacts experienced by First Nations, Inuit, and Métis people, transparency and accountability are crucial aspects to BC’s decolonizing work and mental health systems change. There is a well-documented lack of systemic oversight and accountability. BC currently does not collect disaggregated data to understand how Indigenous people are impacted in the mental health system, or by involuntary treatment specifically.
BC can address these gaps by:
Committing to work with Indigenous communities to develop a self-determined process for tracking data to better understand how First Nations, Inuit, and Métis people are impacted by:
barriers to mental health services
the use of involuntary treatment
use of force like police apprehension, seclusion, and restraints
systemic and individual complaints processes
legal compliance with procedural safeguards
Establishing individual and systemic complaints processes independent of detaining facilities, health authorities, and the provincial health ministries
Establishing clear accountability mechanisms to monitor and evaluate the impact of commitments to increase access to culturally safe mental health and wellness and substance use services
Improving access to justice for First Nations, Inuit, and Métis who experience involuntary treatment, including:
ensuring access to culturally safe and self-determination-based legal services
complaint mechanisms
remedies to provide redress for experiences of racism
Looking toward transformational law and policy change
There is an immense need to increase access to voluntary, community-led, self-determination-based services to centre Indigenous understandings of health and to avoid the harms of the involuntary treatment system. Any specific law reform recommendations must involve good-faith government-to-government consultation with self-determined First Nations, Métis, and Inuit leadership bodies to achieve free, prior, and informed consent about any changes to the law that will impact Indigenous communities in BC.
Truly taking steps towards decolonizing approaches to mental wellness and addressing the impacts of colonization requires moving beyond reforming BC’s colonial mental health law. It requires acknowledging and implementing the thousands of well-established recommendations and calls to action that have been previously developed by Indigenous communities, Indigenous activists, and allies. In addition to formal recommendations, Indigenous communities themselves, including Elders, families, children, and youth, hold the knowledge and answers about what their communities need to be well.
This summary from Parts 6, 7 and 8 of our publication was strongly shaped by many sources, including:
Determinants of Indigenous Peoples’ Health in Canada: Beyond the Social 2nd ed (2018), Greenwood, de Leeuw & Lindsay
British Columbia, Declaration on the Rights of Indigenous Peoples Act Action Plan: 2022-2027 (2022)
United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c14 (Canada)
In Plain Sight: Addressing Indigenous-Specific Racism and Discrimination in BC Health Care (2020), Turpel-Lafond, Mary Ellen
Mental Health and Wellbeing Act 2022, 39/22 (Victoria, Australia)
Mental Health (Compulsory Assessment and Treatment) Act 1992 (New Zealand)
Mental Health Act, SNu 2021, c19 (Nunavut)
For an in-depth list of sources that shaped this work please see the Expanded Sources section of “Pathologize the systems and not the people:” Decolonizing BC’s mental health law.