Decision 'further step in an already very restrictive mental health regime,' says lawyer
A man who receives involuntary psychiatric treatment under British Columbia’s Mental Health Act has lost at the Court of Appeal arguing that the Act’s provisions require that he manifest active symptoms of serious impairment to remain subject to the treatment.
“This decision is a further step in an already very restrictive mental health regime,” says Carly Peddle, a lawyer at MacKay Boyar in Vancouver who represented the BC Civil Liberties Association, an intervenor in the case. “The BC Mental Health Act is one of the most restrictive and least liberty-encouraging statutes compared to other provinces across Canada.”
The result of the decision will be that people will remain indefinitely detained under the Mental Health Act for lacking insight into their condition or disagreeing with the proposed treatment, even if they do not demonstrate symptoms of serious impairment, said the BCCLA.
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In A.T. v. British Columbia (Mental Health Review Board), 2023 BCCA 283, the appellant AT had sought judicial review of the Mental Health Review Board’s decision that he continue to be involuntarily detained under the Mental Health Act. AT suffers from two serious mental disorders and has a history of paranoid psychosis and self-harm for which he has been repeatedly hospitalized and certified for treatment under the Act. He receives involuntary psychiatric treatment on an outpatient basis while living in the community.
In November 2022, a BC Supreme Court dismissed AT’s petition for judicial review. On Appeal, AT argued that the court was wrong to find that he met the statutory definition of a “person with a mental disorder” under s. 22(3)(a)(ii) of the Act. Meeting that definition is the first criterion of the test for involuntary detention.
AT argued that the provision’s correct interpretation defines a person with a mental disorder as a person with active symptoms of serious impairment at the time they appear before the Board. If the symptoms are absent, that the person can no longer be involuntarily treated. The purpose of the Act is to provide temporary protection but not to warehouse people with mental disorders, he said.
In the appeal, BC argued that the “central purpose” of the Act is to ensure those who need treatment for a mental disorder receive that treatment. A “person with a mental disorder” means someone who has an “ongoing need for treatment” and does not hinge on symptoms manifesting while they are before the Board, said the province. BC also submitted that the Act’s proper interpretation “militates against creating a revolving door,” where patients endure a cycle of treatment, release, and readmission for involuntary treatment.
The BC Civil Liberties Association intervened in the case and argued that the right to liberty under s. 7 of the Charter is best protected by a narrow reading of the statutory definition of a “person with a mental disorder.” The BCCLA said only “those who are seriously impaired by a mental disorder at the time of review” should fall under its scope.
A person having a “lack of insight” into their condition or disagreeing with proposed treatment should not allow the state to detain them against their will, said the BCCLA. The group added that the detention of a person who has not committed a crime and is not a public-safety risk is “antithetical” to the Charter’s protections.
Justice Peter Voith, who wrote the reasons for the Court of Appeal, said, “aspects of the language, context and purpose of the Act support both positions.” But Voith ultimately found AT had applied too narrow a lens, and deemed “important aspects of the legal framework” as irrelevant. Voith, and Justices Lauri Ann Fenlon and Leonard Marchand, dismissed the appeal.
