Decolonizing BC’s Mental Health Law

The Mental Health Act authorizes the detention and involuntary psychiatric treatment of people who are assessed as having a “mental disorder.” The Act operates within the institutional, mainstream health system and the documented racism deeply entrenched in that system.

In the face of systemic underfunding, BC has relied heavily on involuntary treatment. There are many other ways to provide access to wellness supports, or psychiatric services, to avoid the harms of the involuntary treatment system.

This is especially important because for some First Nations, Métis, and Inuit people in BC, detention and involuntary psychiatric treatment under the Mental Health Act are 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. Involuntary treatment can be experienced as yet another institutional means of suppressing the autonomy of First Nations, Métis, and Inuit people and pathologizing the impacts of and resistance to ongoing colonization.

Exercises of power under the Mental Health Act are fundamentally about risk, whether it is risk to the safety of the person involved, risk to the safety of others, or risk that the individual’s health may deteriorate substantially.

First Nations, Métis, and Inuit people who experience being assessed for safety and risk may be subject to colonial understandings of risk that do not align with their community’s understanding. This is especially true because, in deciding whether or not to exercise power to detain and involuntarily treat someone under the Act, considerations may include an assessment of or assumptions about the person’s capacity and belief about whether they can make decisions in their own best interests and in the interests of their families and communities. Further, determinations about whether someone might be a safety risk or whether their health might deteriorate without involuntary intervention will necessarily involve an assessment of the likelihood someone will voluntarily comply with recommended treatment that might support their health.

These kinds of determinations can easily be influenced by racist stereotypes commonly applied to Indigenous people in BC’s health system, as identified in the In Plain Sight report: that they are less capable and less compliant that non-Indigenous people. Given that these stereotypes continue throughout BC’s health care system, it is difficult to imagine how they would not be reflected in any decisions to detain First Nations, Métis, and Inuit people under the Mental Health Act or the way they are treated while they are detained.

The Mental Health Act creates barriers to autonomy and self-determination in a number of ways. A core purpose of the Act is to control the bodily autonomy of a person experiencing involuntary treatment. The Mental Health Act removes the power of involuntary patients to make their own psychiatric health care treatment decisions. Instead, the Act empowers the facility staff to make treatment decisions on a person’s behalf through the “deemed consent” model. The Act also grants extraordinary power to facility staff to “discipline” involuntary patients, which can include the use of restraints and seclusion or solitary rooms.

In addition to removing the power of an individual to make their own psychiatric health care decisions, the Mental Health Act also excludes families and loved ones from involuntary psychiatric health care decisions. This is in stark contrast to all other health care decisions in BC, which empower the people we appoint or those who know us best to help make decisions if we are incapable of making them ourselves. For First Nations, Métis, and Inuit people who experience involuntary treatment under the Act, this means that 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, are excluded from their care.

Family connections can also be undermined by the involuntary treatment process because, while detained, Indigenous parents may be forcibly separated from their children, and the detaining facility may control visits or phone access. In addition, a detention under the Mental Health Act may result in increased surveillance from the child welfare system or the apprehension of children.

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 includes whether a person can go outside, whether they can leave a particular hospital unit, and whether they can access any health and wellness supports outside of the treatment administered by the detaining facility staff. They may have their clothing and jewelry removed, sometimes by force, which can be elements of personal, cultural, or spiritual significance.

First Nations, Métis, and Inuit people detained in hospital might not be able to access existing services designed to improve cultural safety in the health system, like Aboriginal patient navigators or Indigenous health liaisons. They also might not be able to access the outdoors for land-based health practices because they cannot go outside, or cultural practices like smudging because it might not be permitted on locked psychiatric units. In addition, if a First Nations, Métis, or Inuit person is being held in a seclusion room, they are very unlikely to have access to any cultural supports or even visitors that can support cultural affinity or companionship.

BC’s 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. In rural and remote areas with inadequate community-led services, police may be relied upon as the only emergency responders available. The Act authorizes police to transport the individual to a hospital or another facility for an examination when conditions are met; in other words, the police can remove a person from their community.

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. That history, on its own, means that the presence of police does not signify safety for many First Nations, Métis, and Inuit people and communities who are all too aware of the role police have played and continue to play in colonial policies of overcriminalization and systemic racism.

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.

Relying on police as part of the first-line mental health response reinforces stereotypes that Indigenous people who need mental health support are dangerous or threaten public safety. The presence of police can reinforce the racist stereotype that Indigenous people are a safety risk when they need health support.