A Charter challenge to B.C.’s Mental Health Act, over a provision that groups say denies patients the ability to consent to treatment, is now being heard in B.C. Supreme Court nearly a decade after it was first filed.
The challenge, filed by the Council of Canadians with Disabilities and other plaintiffs, was first made in 2016 over the act’s “deemed consent” provision, which states that anyone with involuntary status under the law is presumed to have agreed to psychiatric treatment.
The first hearing day was Thursday, and those involved say it’s likely to continue for several weeks.
Supporters of the challenge say that deemed consent removes safeguards that ensure a patient is being treated humanely, and violates the Charter’s rights to life, liberty and security for everyone.
They argue that B.C. having a deemed consent provision makes it unique among Canadian provinces and jurisdictions worldwide, and that it deprives patients of the right to control what is done to their own bodies — including, potentially, electroconvulsive treatment or the provision of medication.
“It’s time to modernize, and ensure that the legislation is brought into compliance with the Charter of Rights and Freedoms, which I think all of us living in Canada now greatly respect and feel as a part of our Canadian culture,” said Yvonne Peters, co-chair of the Council of Canadians with Disabilities’ disability justice litigation initiative.
A spokesperson for Health Minister Josie Osborne declined to comment on the case as it is before the courts.
Loved ones should be involved: supporters
The Charter challenge has drawn support from numerous groups, including the Canadian Mental Health Association’s B.C. division (CMHA-BC).
Jonny Morris, CEO of CMHA-BC, says removing the deemed consent provision would provide people with dignity and more control over their care.
“We hope that there’s a world in which the Mental Health Act is modernized so that deemed consent is replaced with evidence-based safeguards,” he told CBC News.
“So if the person wants their family members to be part of the decision making, if they can’t make a decision, that those family members are included … and that people have a say in their treatment if they have the capacity to be making decisions,” he added.
Morris said that, in addition to family members, he would like to see a patient’s trusted neighbours, friends or other colleagues be incorporated into decision-making as part of the act’s reform.
Victoria resident Celeste Macevicius was committed to care under the Mental Health Act as a teenager, and has acted as a carer for people who have dealt with the mental health system.
She says the legislation acts as a brick wall as soon as a decision is made to certify a patient to treatment, and family members aren’t even informed when their loved one is discharged from care.
“The degree to which people all of a sudden lose dignity and agency and autonomy and sense of self when they’re put under the Mental Health Act is devastating,” she said.
“Even if somebody is a risk to themselves or a risk to somebody else, that shouldn’t mean that then they’ll be forced to comply with whatever a psychiatrist — who’s known them for four hours — thinks they should comply with.”
Province reviewing act
In the wake of a tragedy last month, in which a man on “extended leave” from his mental health team allegedly drove a car into attendees of the Lapu-Lapu Day festival in Vancouver, killing 11, B.C. Premier David Eby announced a review of the Mental Health Act.
Eby said Osborne and her team will initiate a review of the act. Dr. Daniel Vigo, B.C.’s chief scientific adviser for psychiatry, toxic drugs and concurrent disorders, will be part of the review, the premier said. He did not provide a timeline for the review.
Claire Rattée, the B.C. Conservative critic for mental health and addictions, said that the deemed consent provision in the Mental Health Act was not consistent with best practices, and that a collaborative approach to care was a better approach.
She’s arguing that, while the Mental Health Act is a good piece of legislation, the province is failing to support people with mental health and addictions challenges, including people with brain injuries from repeated drug overdoses.
“I’m more concerned about the lack of services that are out there to support people with mental health and addiction struggles,” she said.
“And that’s really where we’re seeing these large failings, these large cracks that people are are falling through.”
Premier David Eby has announced a review of the province’s mental health legislation in light of the Lapu-Lapu Day festival tragedy. Two lawyers with extensive professional experience, Laura Johnston of Health Justice and Kevin Love with the Community Legal Assistance Society, joined us to share their experiences with the Mental Health Act and what changes they do and do not want to see.
