What does intersectional equity in mental health law look like?

Mental health laws don’t impact all people and communities in the same way. Experiences under BC’s Mental Health Act vary greatly depending on a person’s identity and how individual facility staff or physicians understand the Act and what it authorizes. This is why intersectional equity needs to be a priority in BC’s mental health law.

Intersectionality is the understanding of how a person’s social identities (like class, race, gender, sexuality, disability, etc.) overlap with one another and how that interacts with systems of power leading to different experiences of oppression and privilege. BC’s mental health system is a system of power because it authorizes detention and involuntary psychiatric treatment without a person’s consent.

Equity is achieved when every person or community is given the same opportunities regardless of their social identities. While every person or community is given the same opportunities when things are equitable, the way in which those opportunities are made available or achievable may vary. This is because equity recognizes that people have different needs and experience different barriers because of their social identities, so systems may need to offer a variety of options to make up for those barriers and meet the needs of individuals.

BC’s current Mental Health Act doesn’t prioritize intersectional equity.

It doesn’t recognize different identities or different needs of patients. In addition, interpretation of the law is left up to individual health care staff, which can be influenced by unconscious bias. This means that a person’s personal beliefs, views and experiences can influence how they understand the law and how they view/treat others under that law, instead of having guiding principles that would help them know how the law is supposed to be understood and used in a way that is equitable for everyone. Guiding principles for BC’s mental health law can help guide the prioritization of intersectional equity in BC’s mental health law, which can ensure everyone who experiencing involuntary treatment under the Mental Health Act has equal access to the highest attainable standard of health.

This isn’t a new idea. In fact, many places outside of BC have already taken significant steps to name and prioritize equity in the principles that guide the application of their mental health laws.

Northwest Territories

Their mental health law states that “decisions that affect a person who is subject to this Act should respect the person’s cultural, linguistic and spiritual or religious ties.” (Northwest Territories MHA, s2-1(b), pg.14)

Tasmania

Their mental health law requires services “to be sensitive and responsive to individual needs (whether as to culture, language, age, religion, gender or other factors).” (Tasmania MHA, Schedule 1)

Scotland

Their mental health law requires that power under the act will be carried out in a way that respects “the patient’s abilities, background and characteristics, including, without prejudice to that generality, the patient’s age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group.” (Scotland MHA, s 1(3)(h))

Queensland, Australia

Their mental health law requires that “a person’s age-related, gender-related, religious, communication and other special needs must be recognised and taken into account” and “a person’s hearing, visual or speech impairment must be recognised and taken into account.” (Queensland MHA, s5). Among other principles, the law also sets out that services provided to persons from culturally and linguistically diverse backgrounds must have regard to the person’s cultural, religious and spiritual beliefs and practices. (Queensland MHA, s5(h))

Victoria, Australia

Their mental health law sets out a number of specific principles that prioritize equity including:

• Wellbeing of young people principle

  The health, wellbeing and autonomy of children and young people receiving mental health and wellbeing services are to be promoted and supported, including by providing treatment and support in age and developmentally appropriate settings and ways. It is recognised that their lived experience makes them valuable leaders and active partners in the mental health and wellbeing service system. (Victoria MHWA, s24)

• Diversity principle

  The diverse needs and experiences of a person receiving mental health and wellbeing services are to be actively considered noting that such diversity may be due to a variety of attributes including any of the following—

  • gender identity;

  • sexual orientation;

  • sex;

  • ethnicity;

  • language;

  • race;

  • religion, faith or spirituality;

  • class;

  • socioeconomic status;

  • age;

  • disability;

  • neurodiversity;

  • culture;

  • residency status;

  • geographic disadvantage.

  Mental health and wellbeing services are to be provided in a manner that—

  • is safe, sensitive and responsive to the diverse abilities, needs and experiences of the person including any experience of trauma; and

  • considers how those needs and experiences intersect with each other and with the person’s mental health. (Victoria MHWA, s25)

• Gender safety principle

  People receiving mental health and wellbeing services may have specific safety needs or concerns based on their gender. Consideration is therefore to be given to these needs and concerns and access is to be provided to services that—

  • are safe; and

  • are responsive to any current experience of family violence and trauma or any history of family violence and trauma; and

  • recognise and respond to the ways gender dynamics may affect service delivery, treatment and recovery; and

  • recognise and respond to the ways in which gender intersects with other types of discrimination and disadvantage.

  (Victoria MHWA, s26)

• Cultural safety principle

  • Mental health and wellbeing services are to be culturally safe and responsive to people of all racial, ethnic, faith-based and cultural backgrounds.

  • Treatment and care is to be appropriate for, and consistent with, the cultural and spiritual beliefs and practices of a person living with mental illness or psychological distress. Regard is to be given to the views of the person’s family and, to the extent that it is practicable and appropriate to do so, the views of significant members of the person’s community. Regard is to be given to Aboriginal and Torres Strait Islander people’s unique culture and identity, including connections to family and kinship, community, Country and waters.

  • Treatment and care for Aboriginal and Torres Strait Islander peoples is, to the extent that it is practicable and appropriate to do so, to be decided and given having regard to the views of elders, traditional healers and Aboriginal and Torres Strait Islander mental health workers. (Victoria MHWA, s27)

• Wellbeing of dependents principle

  The needs, wellbeing and safety of children, young people and other dependents of people receiving mental health and wellbeing services are to be protected. (Victoria MHWA, s28)

What intersectional equity in BC’s mental health law could look like:

BC’s mental health law could expressly incorporate a commitment to intersectional equity by including the following guiding principles:

• Decisions that impact a person who is subject to BC’s mental health law will respect the person’s cultural, linguistic, and spiritual or religious ties, as well as their gender, sex, (dis)ability, race, ethnicity, Indigeneity, age, family status, and social condition.

• Mental health services and substance use health services will respect the wholeness of a person and their identities beyond their mental health needs.

• Mental health services and substance use health services will be responsive and accessible to any needs related to personal identity, including:

  • Race or ethnicity;

  • Indigeneity;

  • Experiences of trauma or violence, including experiences of gender-based violence;

  • Sex, including reproductive health needs;

  • Gender identity and expression, including gender-affirming health needs;

  • Family status, including caregiving responsibilities;

  • Age, including the needs of children and youth;

  • Religion, faith, or spirituality;

  • Geographic location;

  • Language or communication needs;

  • Culture; and

  • Social condition.

The right to the highest attainable standard of health requires equal access to services, and especially for communities that experience the biggest health inequalities or intersecting barriers.

Equitable access requires ensuring that services are safe and effective for everyone and do not create unintended impacts or barriers due to personal identity. BC should prioritize intersectional equity in its mental health law because mental health laws do not impact all people in the same way. Other places have already begun to lead the way as seen in the examples listed above, it’s time for BC’s mental health law to have guiding principles that include a focus on intersectional equity.

Learn more about guiding principles for BC’s mental health law in A Path Forward: Human rights-based guiding principles for BC’s mental health law and services”.