B.C. denies the mentally ill their constitutional rights

“Unlike most of country, B.C.’s legislation does not provide a lawyer for people with mental illness facing involuntary detention,” says Jay Chalke, B.C.’s ombudsperson (Globe and Mail, September 2, 2020)

Image: In These Times

Unlike other Canadian jurisdictions, mentally ill people can be held indefinitely -B.C. does not have an automatic review of ongoing detention.

That means that people, who may or may not be mentally ill, can be held endlessly.

Detention of people under the guise of mental illness can have political overtones. The Soviet Union misused psychiatry to get rid of political opponents. The term “philosophical intoxication,” a pseudo-scientific term for mental disorders, was applied to people who disagreed with the country’s Communist leaders.

I don’t mean to suggest that the government of B.C. is detaining political opponents under the Mental Health Act.  But systemic paternalism and racism can play a role.

And I don’t deny that mentally ill people who are violent need be detained for their own safety and the safety of others. The forced detention of unstable persons under the Mental Health Act is not the issue.

Given the treatment of Indigenous people as wards of the state, the detention of First Nations persons presents a complicating layer.

Take the case of “A.H.,” a First Nations 39-year-old woman who was wrongfully detained for almost a year.

In a court case between A.H. and the Fraser Health Authority, the Supreme Court of B.C. learned that A.H. had been held against her will and that she was not even found to be mentally ill.

It wasn’t a simple case -A.H. suffers from cognitive impairments and mental health issues. She has a history of substance abuse, family violence and sexual abuse. She was also diagnosed with Fetal Alcohol Spectrum Disorder (FASD).

A.H.’s mother sexually exploited her by pressuring her to drink alcohol and take drugs to make her compliant to sexual abuse. She did not have clean clothes or sufficient food.

After she was detained, authorization to hold her longer than 48 hours under the Mental Health Act expired. Despite that, she remained captive. She asked staff to provide a lawyer but staff said they couldn’t help. She was not told why she was being detained and tried to escape. On at least one occasion, A.H. was physically restrained with mechanical restraints that tied her to the bed. She was forced to take medications, including sedatives.

In her ruling of the case in 2019, Honourable Madam Justice Warren said:

“However, the procedures for Mental Health Act certification were not followed and there is no evidence that A.H. was certifiable under that legislation.

“The detention decision deprived A.H. of her liberty, the most fundamental of her rights.  The consequences could scarcely have been more serious.  It is apparent that A.H. did not understand the basis for her detention or the reasons for it.  She expressed, multiple times during the course of the detention, confusion about her ongoing detention, repeatedly asking why she could not go home.”

The detention of unstable mentally ill people under B.C.’ Mental Health Act is necessary for the protection of themselves and others. But the unjustified detention of people under the pretext of doing it for their own good smacks of paternalism, and in the case of First Nations people, colonialism.

Facemasks should be worn but not be mandated

It’s tempting to change bad behaviour through mandates. The reasoning is that citizens will stop doing bad things if they are told not to.

The problem with mandates is compliance. Unlike laws, which are enacted through a democratic legislature, mandates are orders issued by public officials.

Image: Wall Street Journal

An order by If B.C.’s Provincial Health Officer to use facemasks would run into two problems. The first is political. Facemask use has, unfortunately, become politicized with those who live in a parallel world of reality thinking that COIVD-19 is a hoax and facemasks represent a threat to their liberty.

I hesitate to call these pandemic deniers right-wingers because that suggests that they occupy the political spectrum. Instead, they live in an echo chamber of the Facebook vortex; a demented vision of the world projected by the outgoing president of the U.S.

In Canada, conservatives, liberals, NDP, all agree that measures have to be taken and they vary by province, not by the colour of the politics. Quebec and Ontario have made masks mandatory but Alberta, British Columbia and Saskatchewan are relying on moral suasion to convince their citizens to mask up to help curb the spread of COVID-19.

The second problem is that mandates can seem arbitrary and result in pig-headed defiance. Look at what happened when some of those belligerent types arrived at Mittz Kitchen in Kamloops this summer. After being told of safety protocols at the restaurant, they harassed staff, pushed owner Steve Mitton over a table, and smashed a plate of food on the floor.

I wouldn’t want masks made mandatory any more than I would want vaccinations made mandatory. Vaccinations save lives but orders to get them gets people’s backs up.

I’m not talking about measles vaccinations which everyone, with the exception of small communities, agrees to be necessary. I’m referring to vaccines being developed against COVID-19. Reluctance to get a COVID-19 vaccination has been growing.

 Even with an increase in COVID-19 cases in B.C., fewer people are willing to get vaccinated than before according to a survey conducted in September. The poll found that while a large number people would get the shot as soon as it was available (46 percent) a sizable number would to take a wait-and-see approach (32 per cent). Wait and see as people die?

If masks are to be mandated as part of a program to reduce pandemic deaths, shouldn’t vaccines also be compulsory? Millions of British Columbians would be defiant if such an order were issued.

B.C.’s Provincial Health Officer Dr. Bonnie Henry struggles with ordering the use of masks: “Mandating masks is not something that is going to change people’s minds,” she said. More recently she has tried a different approach. Now she says that masks are, in fact mandatory: they are part of a general order:

“Some people are asking when we will see masks mandated in B.C. The answer is that they already are. The mandate to use masks appropriately is a cornerstone of businesses’ and organizations’ COVID-19 safety plans, and is embedded in our health-care facilities’ operational policies and restart protocols in other public institutions (armchairmayor.ca, November 17, 2020).”

So, masks are mandatory but not mandated. Go figure.

The real solution to make bare faces in public socially unacceptable. Nothing is stronger than shunning the lack of facemasks.

Note: the day that this column was published, facemasks were made conpulsory in BC.