Charter Challenge To B.C. Mental Health Act Is Misguided

By Marvin Ross

Two B.C. patients have just launched a Charter challenge to the province’s Mental Health Act. The last challenge to a Mental Health Act that I am aware of was in Ontario where expanded civil commitment rules and the provisions of Community Treatment Orders (CTOs) were challenged. That was unsuccessful. A CTO is an order mandating treatment in the community.

The case in B.C. is a bit unusual in that it opposes provisions in the B.C. Act that are unique in Canada. The two plaintiffs are opposed to the rules that allow a detained individual to receive treatment without consent. The concept of the Act is that if you need to be detained because you pose a danger to yourself and/or others yet lack the capacity to seek voluntary treatment, then you should also be treated as soon as you are detained. That provision is one that makes the Act in B.C., in my opinion, superior to other jurisdictions.

The claim suggests that this forced treatment violates a person’s rights and that the person being committed should be able to help decide on the treatment they wish to have. However, involuntary committal only occurs when someone with a mental illness poses a danger and refuses to accept treatment according to the guide to the Act. (P11). If they recognized they needed treatment and accepted it, they would not be detained.

The plaintiffs argue that with physical illnesses, patients are allowed to make bad health care decisions, which are denied to psychiatric patients. But — and they acknowledge this — if someone is taken to the emergency injured and unconscious, it is appropriate that they be treated. When someone’s brain is so injured and incapacitated by their mental illness, they can be considered to be in the same situation as someone unconscious from a physical trauma. It may take them longer through treatment to reach a level of consciousness where they can participate in their treatment options but providing that treatment is analogous to treating the unconscious victim.

Many will likely disagree with my statement above but B.C. civil libertarian, Herschel Hardin, writing in the Vancouver Sun in 1993, gave an excellent explanation of that when he said, “Here is the Kafkaesque irony: Far from respecting civil liberties, legal obstacles to treatment limit or destroy the liberty of the person.”

He went on to say:

The opposition to involuntary committal and treatment betrays a profound misunderstanding of the principle of civil liberties. Medication can free victims from their illness – free them from the Bastille of their psychoses – and restore their dignity, their free will and the meaningful exercise of their liberties.

Ontario is a good example of the downside of committing someone involuntarily because they pose a risk of danger to themselves and then allowing them to refuse the treatment that is deemed necessary. This issue was discussed in a 2008 article in the Canadian Bar Review called Treatment Delayed – Liberty Denied . The authors demonstrate that attempts to safeguard autonomy by allowing involuntary patients to then refuse treatment has the opposite effect. It: “often results in subjecting them to prolonged detention, mental anguish, physical and chemical restraint, and solitary confinement.”

The most famous Ontario case is that of Professor Starson as he called himself as he believed he was a son of the stars (starson) and a professor. In 2003, the Supreme Court of Canada upheld his right to refuse treatment that had been proposed in 1998 (P 680 in Bar Review Article). After that decision, Starson’s delusion led him to refuse to either eat or drink for fear that his imaginary son would be tortured. By 2005, his health had deteriorated to such an extent that, fearing death, his doctors appealed to the Consent and Capacity Board who ruled that he could be treated. He began on the anti-psychotic medication that he was offered in 1998 and he improved dramatically. He lost seven years of his life as the result of his refusal to accept treatment [P 680-681 in article].

Three other patients like Starson were incarcerated from 5 1/2 years to over 10 with long stretches in solitary until they became so ill without treatment that they had to be treated to prevent death [P 713]. As with Starson, the three of them improved dramatically once they began treatment. One person who continued to refuse, Paul Conway, has been locked up for 25 years and, without treatment, he is unlikely to ever be discharged P 714].

The choice is agreeing to treatment when voluntary or putting up with it when involuntary and getting better in both instances versus being locked up indefinitely. I think the rational decision is treatment.

And, it should also be pointed out that there are protections for the involuntary patient at every step of the procedure. Those opposed to involuntary treatment imply by omission that once someone is locked up they remain so and lose all their rights. That is not the case in any jurisdiction.

Section 7.1 of the B.C. Guide lays out all the rights that the involuntary patient has upon being hospitalized. These range from the right to consult with a lawyer or advocate, the right to a second medical opinion, to a hearing by a review board, regular reviews of the committal orders and the right to apply for habeus corpus.

Involuntary committal and treatment is not something that is taken lightly by anyone or used frivolously but is only done in extreme circumstances in the best interests of the patient.

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