Unlike other Canadian jurisdictions, those who are deemed to be mentally ill in British Columbia can be held indefinitely. B.C. does not have an automatic review of ongoing detention and unless individuals can take the case to the court, there is no recourse.
That means that persons, who may or may not be mentally ill, can be held endlessly. Who is deemed “mentally ill” can be arbitrary. Those with cognitive impairments or genetic illnesses that impair their ability to communicate can be held in institutions under a doctor’s orders.
More than 25,000 people detained every year under BC’s Mental Health Act.
“BC is the only jurisdiction in Canada that still uses a ‘deemed consent’ model, which violates the Canadian Charter and the UN Convention on the Rights of Persons with Disabilities,” says Michael Feder, a lawyer for the Council of Canadians With Disabilities (CCD).
Deemed consent means that people who are involuntarily detained under BC’s Mental Health Act are assumed to have given consent to detainment and treatment. They are legally forced to receive all psychiatric treatment, including medications and electroconvulsive therapy -even when they are mentally capable of making their own treatment decisions.
The law also deprives detained individuals the right to a substitute decision maker, like a representative or family member, to give or refuse treatment on their behalf.
It’s difficult, but not impossible for wrongly detained people to gain freedom –but only if they take the case to court themselves.
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.
However, many of those held against their will don’t have the resources to take their case to court. In that event, they will languish indefinitely. Michael Feder says:
“Some courts, including the trial court in our case, have been rigid in their view that challenges must be brought by affected individuals, despite whatever barriers they may face and no matter how marginalized or disadvantaged they may be.”
In the past two psychiatric patients tried to challenge the law but given their fragile condition, withdrew. People with cognitive impairments, or those who face cultural or racial bias, are not well equipped to handle the stress of legal cases. The B.C. government asked the court to dismiss the challenge because the two had withdrawn from the case. The B.C. Supreme Court agreed, saying that without the individuals involved the case lacked the kind of factual context that courts need to review constitutional issues. The B.C. Court of Appeal disagreed with the B.C. Supreme Court, stressing the importance of access to justice. B.C. then appealed the ruling to the Supreme Court of Canada.
The Supreme Court of Canada is allowing a constitutional challenge to go ahead against B.C.’s law that authorizes the confinement and forcible treatment of psychiatric patients in British Columbia.
It’s about time.