New international guidance on mental health legislation—how does BC measure up?

In October, the World Health Organization and the UN’s Office of the High Commissioner for Human Rights released Mental health, human rights and legislation: Guidance and practice, a document meant to help governments take a rights-based approach when developing or reviewing mental health–related laws. The guidance gives practical advice on how governments can ensure their laws align with international human rights obligations, especially the Convention on the Rights of Persons with Disabilities (CRPD).

For example, it encourages governments to take these steps: 

• incorporate mental health into general health legislation rather than having a separate mental health law, 

• move away from the biomedical model of mental health and toward a person-centred, recovery-based model where the person experiencing mental health issues defines what recovery looks like for them, and 

• involve people with lived and living experience of mental health issues in developing and implementing mental health–related law and policy. 

One of the key features of this guidance document is its “Checklist for assessing rights-based legislation on mental health,” which “provides a simple, direct and practical way to assess the compliance of mental health-related legislation, or draft bill, with international human rights obligations” (p. 139). The checklist consists of 94 items, and stakeholders can rate each item from 1 to 5 (1 meaning “not at all” and 5 meaning “fully”) to assess the jurisdiction’s compliance with the rights-based guidance.

Here’s a small sample of the questions in each of the checklist’s four major areas:

1. Legislative approach 

   • Does the legislation enable access to quality care and support that is person-centred and rights-based? 

   • Does the legislation ensure the meaningful participation of service users in public decision-making related to mental health? 

2. Legislative content 

   • Does the legislation guarantee persons using mental health services the right to access information about their diagnosis and treatment? 

   • Does the legislation mandate the respect and protection of the right to legal capacity of all persons using mental health services, including those with psychosocial, intellectual and developmental disabilities? 

3. Drafting and legislative processes 

   • Do the drafting and legislative processes involve active representation from all principal stakeholder groups, including persons with mental health conditions and psychosocial disabilities and their representative organizations? 

   • Has a rigorous and comprehensive review of national legislation been carried out in light of international human rights obligations? 

4. Implementation and evaluation 

   • Has an agency been appointed to oversee the implementation of legislation? 

   • Have evaluations been conducted to assess the implementation of legislation? 

The document’s authors are careful to note that the checklist isn’t exhaustive, but it can help governments identify the most important issues to address when developing or reviewing mental health–related legislation. 

So how well does BC’s mental health–related legislation align with international mental health frameworks, according to this checklist? 

On a small number of items, the province would score 4 (“significantly”) or 5 (“fully”). For example, an item like “Does the legislation decriminalize suicide attempts?” is easily met; there is no criminalization of suicide attempts anywhere in Canada. On other items, such as “Does the legislation allow for the creation of peer-led and peer-run services and for their operations to run alongside mental health services?”, we can say that the BC legislation doesn’t prohibit these services, even if it doesn’t do anything to enable or require their creation. 

But the checklist also has many more questions where BC would score 1 (“not at all”), including these items from the section on informed consent and eliminating coercive practices: 

• Does the legislation uphold the right to free and informed consent within mental health services so that all support and treatment is provided voluntarily? 

  • No. BC’s deemed consent provision, section 31 of the Mental Health Act, takes away a person’s right to make psychiatric treatment decisions if they are an involuntary patient. 

• Does the legislation prohibit all forms of coercive practices within mental health services, including seclusion and physical and chemical restraints? 

  • No. Under section 32 of the Mental Health Act, involuntary patients are subject to the “direction and discipline” of the director and staff of a facility, which can include being put in restraints or seclusion. 

• Does the legislation mandate advanced planning documents to be binding? 

  • No. Advance planning documents, where people can record their beliefs, values, and wishes about future health care treatment, are not legally binding under the Mental Health Act. Even if a person creates an advance planning document, their treatment team can override their wishes if they are an involuntary patient. 

Even this small sample of checklist items shows how much more BC would have to do to meet the rights-based standards set by the CRPD, which Canada has committed to fulfilling. If the provincial government ever decides to reform the Mental Health Act, this guidance document and its checklist will be an incredibly useful tool to ensure that the review process and the new legislation complies with international human rights obligations.