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B.C. Premier David Eby has announced proposed changes to the Mental Health Act that he says would protect health-care workers providing involuntary care from facing legal action.
This comes as the province is facing a charter challenge to the act, over a provision that groups say denies patients the ability to consent to treatment.
“As we get closer to the decision date, there is some reasonable anxiety among the frontline health workers that if this case is successful in overturning that provision, that they won’t be protected,” said Eby.
While the premier says these changes are necessary to make sure health-care workers are clearly protected from liability, some in the industry have raised questions about why this change is necessary — as they say the act already covers liability protection.
A Charter challenge to B.C.’s Mental Health Act is finally being heard in B.C. Supreme Court nearly a decade after it was first filed. As Michelle Morton reports, advocates are arguing that the “deemed consent” provision of the act removes a patient’s right to consent to their own treatment.
The proposed change to the bill would remove the first part of Section 31 of the Mental Health Act, which determined that if a patient is detained under the act, “treatment authorized by the director is deemed to be given with the consent of the patient.”
A provision would be added to Section 16 to say that workers are not liable if they provide care or other services to a patient that is authorized by a director, if they provide reasonable care in good faith.
The “deemed consent” provision, which presumes consent to psychiatric treatment for anyone detained in involuntary care under the law, is at the centre of a court challenge originally filed by the Council of Canadians with Disabilities and other groups in 2016.
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.
The province has introduced new legislation aimed at updating B.C.’s Mental Health Act. Premier David Eby says the changes will strengthen involuntary care and better protect frontline workers. But as Amelia John reports, it also comes amid a Charter challenge being heard in the B.C. Supreme Court.
Critics weigh in
Angela Russolillo, an assistant professor with the school of nursing at the University of British Columbia, says the changes are “misguided” and sow more confusion than clarity.
“[Providers] don’t need encouragement to admit more people involuntarily,” she said.
“We need resources to keep people out of crisis and promote health and wellness before it happens, before we need to intervene involuntarily.”
B.C. Health Minister Josie Osborne answers questions about the province’s efforts to expand its involuntary care system. She speaks with BC Today host Michelle Eliot about how the new ‘home-like’ involuntary care space in Maple Ridge will be administered, who gets admitted to the facility, and how the review of B.C.’s Mental Health Act can factor in how the province oversees the system.
Russolillo says that prior to these proposed changes, there were already liability protection measures in place under Section 16.
“The longstanding understanding from health professionals [is] that Section 31 has been about deemed consent, and not about liability protection,” she said.
Jeremy Valeriote, the Green Party MLA for West Vancouver-Sea to Sky, said the changes are an “opportunistic effort” to strengthen the province’s defence of involuntary care, and renewed calls for a review of the Mental Health Act.
“Today’s minor amendments barely scratch the surface of the work necessary to update this archaic law, and might actually take us backwards,” he said in a Monday statement.
“While the government is right to acknowledge that Section 31 is deeply problematic, simply relocating the language within the Act does not address the core issue: coercive health measures that remain out of step with an evidence-based understanding of mental health and illness.”
In a statement, the Canadian Students for Sensible Drug Policy raised concerns that this move could be B.C.’s attempt to subvert the ongoing legal challenges it is facing.
“The amendment intends to circumvent a Charter challenge filed by a coalition of disability justice and human rights organizations due to the overly broad definition of ‘deemed consent,’” the statement reads.
“Removing [Section] 31 makes abundantly clear that patient consent is irrelevant.”
Many British Columbians are asking for updates to mental health practices in the province after the Lapu-Lapu Day tragedy, including Vancouver Mayor Ken Sim. Dr. Shimi Kang, a psychiatrist at Future Ready Minds and clinical associate professor at the University of British Columbia, talks about what those reforms could look like.
When announcing the proposed amendments, Eby said his intention was to ensure health-care workers are protected.
“This change that we are introducing in the Legislature does not make that court challenge irrelevant,” he said.
“It doesn’t have an impact on whether or not the court is able to grapple with some important question about where the limits are on involuntary care or treatment.”
The province has also committed to a full review of the Mental Health Act.
