The court has given the BC legislature six months to draft new laws that comply with its findings
Elements of British Columbia’s legal regime for psychiatric treatment, which allow healthcare professionals to force treatment on people who have been involuntarily detained for mental health crises, are unconstitutional and can no longer be in effect, the Supreme Court of BC has ruled.
In a nearly 350-page decision last week, BC Supreme Court Justice Lauren Blake said the unconstitutional provisions are the second half of s. 8(a) of BC’s Mental Health Act, ss.2(b) and (c) of the Consent Act and ss. 11(1)(b) and (c) of the Representation Agreement Act.
However, Blake said her ruling in Council of Canadians with Disabilities v. British Columbia will not go into effect for six months, to give the BC legislature time to draft new laws that comply with her findings.
In a statement on Tuesday, a spokesperson for BC’s Ministry of the Attorney General said the ministry is reviewing the decision. In the meantime, “mental health care delivery in BC continues uninterrupted under the current legislation,” the spokesperson said.
Patrick Williams, a partner at McCarthy Tétrault who led the team representing the plaintiff, human rights organization Council of Canadians with Disabilities, told Canadian Lawyer the practical implications of Blake’s ruling will be uncertain until the legislature formulates a new approach for treating involuntarily admitted patients in the coming months.
“I hope that debate will involve considerations of all of the court’s findings in… how much BC was an outlier in Canada relative to the systems of other provinces for providing involuntary care, and the lack of evidence that BC’s system was leading to better outcomes than the systems of other provinces,” Williams says.
In her ruling, Blake explained that the CCD’s goal in the case was not to challenge BC’s right to involuntarily admit and detain patients struggling with a mental disorder. Under the Mental Health Act, patients can be involuntarily admitted to a healthcare facility if they have a mental disorder, require treatment via a designated facility, cannot be admitted voluntarily, and require care, supervision, and control to prevent mental or physical deterioration or to protect themselves or others.
Instead, the CCD’s action, which was first filed in 2016, focused on clarifying a more narrow issue: once a patient has been admitted, can specific provisions in the Mental Health Act, Consent Act, Representation Agreement Act empower healthcare professionals to then force that patient to receive psychiatric treatment?
These provisions have long formed what Blake calls BC’s “deemed consent regime.” Under this regime, anyone who is involuntarily admitted to a healthcare facility for mental health reasons is automatically presumed to be incapable of making decisions about their own treatment. The regime effectively gives that decision-making power, or authority to consent, to the director of the healthcare facility instead.
These rules apply even if the person who has been involuntarily admitted does have the capacity to make their own decisions. The regime also strips involuntarily admitted patients of the right to have a chosen representative make decisions on their behalf.
In short, the provisions that make up BC’s deemed consent regime “operate to create a legislative scheme in which a director is automatically granted a blanket power to provide any psychiatric treatment they determine appropriate to any involuntary patient in any situation,” Blake wrote.
The justice added that the regime effectively discriminated against people with mental disabilities. The deemed consent regime “denies involuntarily admitted patients the benefit all other patients in BC have — the ability, if they are capable, to direct their health care — and perpetuates the stereotype that individuals suffering from a mental disorder lack capacity,” Blake wrote.
“Not only are these provisions arbitrary, they also deny the benefit all British Columbians have to consent or refuse health care in a manner that reinforces, perpetuates, and exacerbates historical disadvantage experienced by individuals with a mental disorder.”
Given these findings, Blake concluded that the provisions in the deemed consent regime violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, which respectively protects the right to life, liberty, and security of the person, and establishes that every individual is equal under the law.
The justice further concluded that these violations are not justified by s. 1 of the Charter, which allows limited infringements on Charter rights if those infringements can be reasonably justified. While the rationale behind the deemed consent regime is “pressing and substantial,” Blake noted there are less “drastic means” to achieve its goal of ensuring that all involuntary patients receive the appropriate service, care, and treatment they need to improve their condition.
“Every other province and territory has mental health legislation that impairs the health care consent rights of involuntarily admitted patients in a significantly less drastic manner,” Blake wrote, adding the regime “is neither minimally impairing, nor are its effects proportionate to the purpose of the legislation.”
Blake noted that BC is the only jurisdiction in Canada whose mental health laws contain no requirement or framework to assess an involuntarily admitted patient’s capacity to make decisions about their own treatment.
Unlike with other jurisdictions, BC’s laws also give the facility where a patient is detained “unilateral power to treat a capable involuntary patient against their will,” and do not mandate independent oversight of a doctor’s assessment that a patient is incapable.
Devin Eeg of Hunter Litigation Chambers, who represented nonprofit organization Health Justice, the sole intervenor in the case, said Blake's ruling clarified "that a person’s Charter rights survive their detention under mental health legislation." However, the ruling also sent the message that "broad-brushstroke legislation, that treats all persons with real or perceived mental disabilities alike, risks perpetuating stereotypes and limiting equality rights," Eeg argued.
"The case affirms that legislatures must treat such people as they are: as individuals of inherent dignity and worth, whose circumstances reflect the gamut of human experience."
