Independent mental health legal advice can make a big difference in BC
“When you are first detained under the Mental Health Act, you feel alone, trapped, stripped, no one to call because all the phone numbers you have are in a phone you don’t have access to. Help, you want to yell. No one sees me, no one is listening, no one cares…”
When you are detained in Canada, you have legal rights. These rights are an important part of our democracy to make sure detention is transparent and fair. But these rights can also have a crucial impact on our dignity and well-being. For people who experience detention because of a mental health crisis or mental disability, understanding and exercising legal rights can be part of promoting good health outcomes and recovery.
One of these rights is the constitutional right to access legal advice when you’re detained. If the state takes away your freedom, you have the right to get legal advice and assistance so you understand why and you can get help challenging your detention. Legal Aid BC funds services to provide legal advice to detained people in BC. For example, duty counsel lawyers are available to criminal detainees and immigration detainees.
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 provinces that does not have a service for mental health detainees built into its mental health legislation.[1] This might be one of the reasons why we have the highest rates of hospitalization due to mental illness and substance use in Canada.[2] It also helps to explain the Ombudsperson’s recent findings that the majority of Mental Health Act detentions in BC do not follow basic legal requirements.[3]
Many detaining hospitals and facilities fail to tell people when they’re detained that they have the right to get independent legal advice.[4] Even if they do, there’s no service to provide the advice. For someone who has just been detained and may be in crisis, there are often overwhelming barriers to finding a lawyer, let alone affording one.
The absence of the legal advice service has created an access to justice crisis.
No legal advice service means people do not know about their rights or they cannot exercise them. Mental health detainees have had almost no access to court[5] and detaining facilities and hospitals have put pressure on detainees not to exercise their rights.[6] And while the number of detentions has been increasing, the number of involuntary patients accessing review of their detention through the independent tribunal, the Mental Health Review Board, is a small fraction and has decreased in recent years.[7] Only about 4% of detentions are reviewed by the Mental Health Review Board.[8] It’s even smaller for some populations who face additional access to justice barriers – only about 1% of detentions of children and youth are reviewed.[9]
Independent legal advice services make a big difference
BC needs a service to provide legal advice and assistance to people when they’re detained under the Mental Health Act. In March 2019 the BC Ministry of Attorney General committed to seeking the appropriate approvals to create and fund this service.[10] This will go a long way to make downstream improvements for mental health detainees and the health care system.
There are well established models for these services from places that have been doing this for years, like other Canadian provinces, the United Kingdom, and Australia. BC could develop a similar model:
The detaining facility sends a notification to the service when someone is detained under the Mental Health Act.
The service then sends an independent lawyer or advocate to the facility to meet with the detainee.
Detainees can always choose not to meet with the service, but this ensures that someone is available to give the detainee legal advice and assistance to explain what is happening to them, what their rights are, and how they can exercise those rights.
Independent legal advice services for mental health detainees are person-centred advocacy models designed to promote self-determination and recovery. Evaluations of the services have found many benefits, including:
Increasing service users’ well-being, confidence, and recovery goals;
Assisting health care systems in addressing anti-racism and ensuring services are equitable (for instance, the service can be particularly useful to racialized and Indigenous people who may be subject to higher levels of coercion in the mental health system);
Enhancing and empowering patient participation in decision-making around care and treatment;
Reducing isolation and improving communication and connection with family, friends, and community based mental health services, which could prevent future mental health crises;
Supporting health care systems to make improvements in culture and practices, fostering greater accountability, reflection, and transparency among treatment teams;
Facilitating more constructive relationships and defusing conflict between service users and detaining facility staff and increasing the rate of successful complaint resolution; and
Improving quality of care and life for service users and acting as a safeguard against poor or inconsistent practices.[11]
Independent legal advice services can help health care systems provide anti-racist and equitable services
These kinds of positive impacts will not only benefit mental health detainees and their personal supporters, but also the health care system and the clinicians who work in it. The Nurses and Nurse Practitioners Association of BC and the BC Association of Social Workers have both issued statements of support for establishing independent legal advice services.
It’s an exciting moment in BC – changing the Mental Health Act to create this service can be the first important step in meaningful transformation of our mental health and substance use system.
[1] Ombudsperson’s Special Report No. 42, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act (March 2019) [Ombudsperson’s Special Report No. 42], p. 84.
[2] A Pathway to Hope: A roadmap for making mental health and addictions care better for people in British Columbia British Columbia Ministry of Mental Health and Addictions (June 26, 2019), p. 5.
[3] The Ombudsperson’s Special Report No. 42, p. 7 found that across the province, the forms that are legally required to detain someone under the Mental Health Act were completed only 28 percent of the time.
[4] The Ombudsperson’s Special Report No. 42, p. 7 found that the form that documents a detainee was told about their right to get legal advice was missing 51 percent of the time.
[5] Since the last substantive amendments to the Mental Health Act in 1998, there has only been 2 published court decisions of a direct court application (by an individual with no legal representation) and no published reviews of Mental Health Review Board decisions: see Operating in Darkness: BC’s Mental Health Act Detention System, Community Legal Assistance Society (November 2017), p. 154, and Huang v. Vancouver General Hospital, 2019 BCSC 874.
[6] Mental Health Review Board 2020/2021 Annual Report (September 9, 2020), p. 13.
[7] Ombudsperson’s Special Report No. 42, p. 15.
[8] Mental Health Review Board 2020/2021 Annual Report (September 9, 2020), p. 14
[9] Detained: Rights of Children and Youth under the Mental Health Act, Representative for Children and Youth (January 2021), p. 65.
[10] Ombudsperson’s Special Report No. 42, p. 100-102.
[11] The Right to Be Heard: Review of the Quality of Independent Mental Health Advocate (IMHA) Services in England, University of Central Lancashire (June 2012), p. 4, 9, 20-21, 25-27, 83-84, 192-202; Evaluation of the Independent Mental Health Advocacy Service (IMHA), Social and Global Studies Centre, RMIT University, (March 2019), p. 2, 9, 13, 15, 38-39, 169-170; Honouring the Past, Shaping the Future: 25 Years of Progress in Mental Health Advocacy and Rights Protection, Psychiatric Patient Advocate Office 25th Anniversary Report, (2008), p. 2-3, 32-34, 39, 107.