Article: DABC Supports Challenge to Mental Health Act
February 23, 2023 by DABC
This article was written by Andrew Robb, and originally appeared in the edition of DABC’s Transition magazine, Dying for Health Care: Navigating An Ableist System (Fall/Winter 2022). Read the issue here.
If you’re interested in contributing to Transition as an individual or an organization, please email transition@disabilityalliancebc.org.
On June 23, 2022, the Supreme Court of Canada released a decision finding that the Council of Canadians with Disabilities (CCD) has public interest standing to challenge parts of BC’s Mental Health Act (MHA) because it violates Canada’s Charter of Rights and Freedoms.
The Attorney General of BC had argued that CCD was not entitled to public interest standing, unless there was an individual co-plaintiff who had been directly affected by the MHA.
This decision is part of CCD’s ongoing challenge to laws regarding involuntary psychiatric treatment. CCD says the MHA violates the Charter and the courts should force the government to change it.
BC is the only place in Canada where patients with involuntary status, including people detained in psychiatric facilities, are “deemed” to consent to all forms of psychiatric treatment, without safeguards.
For example, under the MHA, a patient can be forcibly administered psychotropic medications and electroconvulsive therapy, without consent from the patient or their legal guardians or family members.
The issue before the Supreme Court of Canada was a procedural question about whether CCD would be allowed to bring the case forward at all, without an individual co-plaintiff. The Supreme Court of Canada did not consider whether the MHA violates the Charter. That issue will now be decided by the BC Supreme Court.
The Supreme Court of Canada’s decision is very important to CCD and people in BC who are detained under the MHA. It means CCD’s legal challenge to the MHA can continue, but the legal process takes a long time; it may be years before the courts make a final decision about whether the MHA must be changed. The Supreme Court of Canada’s decision will also set a precedent that will be helpful to other groups who want to challenge discriminatory and other unconstitutional laws in court.
CCD is a national organization of people with disabilities working for an accessible and inclusive Canada. Disability Alliance BC is a member organization.
DABC staff assisted the CCD committee that works with CCD’s pro bono lawyers. We are proud to play a role in this important case.
Andrew Robb is staff lawyer with DABC’s Disability Law Clinic.
Article: Human Rights vs. BC's Mental Health Act
This article was written by Kendra Milne, and originally appeared in the edition of DABC’s Transition magazine, Dying for Health Care: Navigating An Ableist System (Fall/Winter 2022). Read the issue here.
If you’re interested in contributing to Transition as an individual or an organization, please email transition@disabilityalliancebc.org.
Mental health advocates in BC have been sounding the alarm for decades: our Mental Health Act is one of the most archaic and discriminatory pieces of our ableist health care system.
Ableism plays out in mental health law and policy by reinforcing ideas that there are certain “normal” ways of thinking, interacting and participating in community. These ideas often reflect colonial and neurotypical lenses on the world.
BC’s Mental Health Act sets out when you can be admitted to hospital and treated for what the Act calls a “mental disorder” because either you ask for that care or because you are being detained and involuntarily treated.
The Act views and treats mental health issues as moral failings that can be disciplined out of people.
This law impacts people diagnosed with mental illness, brain injuries, dementia, substance-use-related health issues, and many other disabilities or health conditions.
The Act was passed in 1964 and many portions of it are the same today.
Every patient is subject to the direction and discipline of the facility staff. They can be confined in solitarily seclusion rooms, restrained to their beds, or otherwise punished during their time in hospital. There are no limits and no review on when, how or why someone can be subject to these restraints.
This is still true, even though a 2021 investigation into the Mental Health Act, by the Representative for Children and Youth, concluded there should be strict limits on restraints.
When any citizen accesses health care, the law protects our right to make our own health care consent decisions. If we are incapable of understanding and making a health care decision, the law protects our right to have the people who know us best make the decision.
That is, unless you are involuntarily committed under the Mental Health Act–then you have no such rights. All involuntary patients can be given any form of psychiatric treatment without consent and supporters are excluded from decision-making.
Other countries have acknowledged the need to modernize their mental health laws and have taken action. For example, Victoria, Australia’s recently tabled new Mental Health Act, rooted in human rights, ensures Indigenous people receive culturally safe services and establishes adequate oversight. The UK also commissioned an independent review recognizing that its mental health law entrenched systemic racism, and relied heavily on coercion.
There is growing evidence that our Mental Health Act is not serving BC well, and needs to be modernized to protect human rights and well-being. Emerging investigations from independent offices, and compelling stories from people and their families with experience of the mental health system, all point to the same conclusion.
BC needs an independent review of the Mental Health Act to create reforms that respect human rights, promote evidence-based care, and build in oversight from an independent provincial Mental Health Advocate.
Kendra Milne is a lawyer and Executive Director of Health Justice. Learn more at https://www.healthjustice.ca.
