At a time when the topic of involuntary care is dominating political discussions and public safety debates, a B.C. Supreme Court judge has ruled that the province’s current system to assume consent by involuntarily detained patients is unconstitutional. In a 289-page judgement released this week, 10 years after legal proceedings first began, Justice Lauren Blake wrote certain sections of the Mental Health and Consent acts violated Charter rights of patients whose capacity to agree to psychiatric care was never assessed, with B.C. operating in a “deemed consent regime” under the approval of facility directors. In a one-on-one interview with CTV News, one of the key lawyers for the Council of Canadians with Disabilities—which brought the case to court—acknowledged that with roughly 17,000 British Columbians apprehended under the Mental Health Act annually, a significant number of people could’ve had unwilling procedures. “The treatment provided to not all, but some of those people, for sure, would have been provided in a way that the court has found contrary to our Constitution,” said Patrick Williams, a partner at McCarthy Tetrault. Blake emphasized that involuntary apprehension is complicated, writing “individuals suffering from serious mental disorders are highly vulnerable and are frequently at risk of being betrayed by that fundamental human trait—the ability to clearly think and reason.” Why it matters More than 70 hospitals and facilities around British Columbia provide inpatient treatment for people detained under the Mental Health Act. Some are there for days, others will remain for months until they’re assessed as well enough to leave. Dozens of involuntarily treated patients testified in the case in emotional hearings before the judge, describing disturbing and traumatic experiences. “They were very brave to come forward and tell their stories and their experiences,” said Williams, who said that electroshock therapy was administered against the will of some patients. “We also heard evidence about people who were held down or placed in restraints and medication was forcibly injected against their wishes.” Those are precisely the types of experiences advocates have warned could lead to estrangement from the medical system and social supports, making it even more likely for patients to spiral and end up in the same situation where they’re essentially locked up so they can’t harm themselves or others. The minister responds CTV News asked the health minister about the ruling at an unrelated news conference on Friday. “It’s important for us to review the case carefully to understand what the next steps are,” said Josie Osborne. “Involuntary care is an important part of the mental health system across the country and we know how important it is for people who are experiencing mental illness to receive the treatment and supports that they need in a way that respects their rights, their dignity, their autonomy.” The judge gave the province six months to figure out how to proceed in a manner that doesn’t violate patients’ Charter rights. Williams believes a much larger discussion needs to be had with an eye to modernizing legislation. “Our Mental Health Act is described (in the ruling) as a bit of a patchwork because it’s been tweaked over several decades since this regime was set up about 50 years ago, but it has not gone through a comprehensive review and reform,” he said. “B.C. was a real outlier, and other provinces operate in a way that impairs rights significantly less, so we should think about that as we go forward.”
