People who are involuntarily detained under BC’s Mental Health Act – or released from hospital on leave – currently have no right to give or refuse consent to any psychiatric treatment
Vancouver, BC – Two individuals and the Council of Canadians with Disabilities filed a legal action in the BC Supreme Court [opens to PDF] on September 13, 2016 to challenge a BC law that forces psychiatric treatment on people without their consent. The case alleges that the law violates the Canadian Charter of Rights and Freedoms.
Legally ‘deemed’ to consent to all psychiatric treatment
People who are involuntarily detained under BC’s Mental Health Act – or released from hospital on leave – currently have no right to give or refuse consent to any psychiatric treatment. They are legally ‘deemed’ to consent to all psychiatric treatment and can be forcibly administered medications and electroconvulsive therapy, even when they are mentally capable of making their own treatment decisions. The law also deprives detained individuals of the right to a substitute decision maker, like a representative or family member, to give or refuse consent on their behalf.
“BC is the only jurisdiction in Canada that still uses a ‘deemed consent’ model,” says Melanie Benard of the Council of Canadians with Disabilities.
“BC is the only jurisdiction in Canada that still uses a ‘deemed consent’ model,” says Melanie Benard of the Council of Canadians with Disabilities. “In other jurisdictions, doctors must assess a patient’s capacity to consent and consult with a substitute decision-maker before imposing treatment. BC’s outdated law violates the Canadian Charter and the UN Convention on the Rights of Persons with Disabilities.”
Laura Johnston, one of the Community Legal Assistance Society lawyers for the plaintiffs, emphasized the case will not affect emergency mental-health care. Police will still have the authority to apprehend individuals experiencing a mental-health crisis who are deemed an immediate threat to themselves or others. The legal challenge is about treatment, Johnston stressed. “It is a question of what happens once you are stabilized, after those first couple hours,” she explained. — The Straight (Sept. 13, 2016)
Plaintiffs Louise MacLaren and ‘D.C.’
Louise MacLaren, one of the plaintiffs in the case, is a 66-year-old retired nurse who has worked in hospital psychiatric wards. She has been forced to undergo hundreds of rounds of electroconvulsive therapy and has been forcibly administered medications for symptoms related to bipolar disorder. The other plaintiff, a 24-year-old recent graduate of Harvard University who will be known in the case as D.C., has been forcibly injected with medications.
Sarah’s story: Living as a ‘psychiatric refugee’ in Ontario
Sarah, a 24-year-old woman who went to a BC hospital voluntarily with her mother to seek help with her feelings of depression, was also involuntarily detained. After being forcibly medicated for a month, she escaped from the hospital and a warrant was issued for her apprehension by police. Sarah fled BC and turned herself into a police station in Calgary, where the police refused the BC hospital’s request to apprehend her. She is now living as a ‘psychiatric refugee’ from BC’s law in Ontario, where the law upholds patients’ consent rights.
“Being forcibly medicated is terrifying and dehumanizing,” says Sarah. “My clothes were stripped off me and I was pinned down by 4 male security guards while someone injected a needle into my backside. I was not given any say in my treatment, and even my mom was not allowed to make decisions for me. I’ve learned how to manage my depression with cognitive behavioural therapy and support from my family. I want to be able to direct my own treatment and recovery.”
Delaying treatment due to fear of being involuntarily detained
“Many people delay seeking or don’t seek mental health care because they fear being involuntarily detained under the Mental Health Act and losing all control of their treatment,” says Laura Johnston, one of the Community Legal Assistance Society lawyers for the plaintiffs. “This law equates having mental health problems with being mentally incompetent to make decisions. That assumption is inaccurate and based on prejudice that has no place in Canadian law.”
Isabel Grant, a professor who specializes in criminal and mental health law at the University of British Columbia’s Allard School of Law, called the inability to make one’s own decisions under the Mental Health Act a “wide exertion of provincial power” and a clear violation of Charter rights. “We don’t do that in any other context: If you have a physical illness that you’re making bad decisions about, we let you make those bad decisions. We don’t [enforce] better decisions,” she said. — The Globe and Mail (Sept. 13, 2016)
We speak with Laura Johnston, a lawyer with Community Legal Assistance Society.
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Left-click to listen; right-click to save.
In a separate interview, we speak with “Sarah,” who is “now living as a ‘psychiatric refugee’ from BC’s law in Ontario, where the law upholds patients’ consent rights.”
audio | #psychiatry #britishcolumbia #forcedtreatment #mentalhealth @VIMentalHealth @ccdonline @clasbc | listen: https://t.co/h5B5U1Kv1Y pic.twitter.com/rOWALdMh9j
— People First Radio (@peoplefirstrad) September 22, 2016
About the organizations involved
The Community Legal Assistance Society has been providing free legal services to marginalized British Columbians since 1971 in the areas of mental health, human rights, housing, income security, and workers’ rights. We have assisted tens of thousands of British Columbians over the years through law reform, test case litigation, systemic advocacy, delivery of public legal education, summary advice, workshops and representation of clients before administrative tribunals and the courts.
The Council of Canadians with Disabilities is a national human rights organization of people with disabilities working for an inclusive and accessible Canada. Founded in 1976, the Council of Canadians with Disabilities consists of nine provincial member groups, seven national disability organizations and one affiliate member. Its mandate includes law reform, policy development, and test case litigation in support of persons with disabilities.
