B.C. Supreme Court judge hears opening arguments in constitutional challenge of provincial Mental Health Act

Globe and Mail

a day ago

A B.C. Supreme Court judge deciding whether the province's Mental Health Act violates the Charter rights of people forced into treatment has heard opening arguments in a challenge that started in 2016.
On Thursday, the lead lawyer for the plaintiff laid out the testimony Justice Lauren Blake is set to hear, including from a psychiatric patient who says they were tackled and injected with medication, and another who will tell court they walked into an emergency room, were given drugs and then woke up detained against their will.
The case is being brought by the Council of Canadians with Disabilities, who say they are not seeking to throw out the ability of the province to detain people who need mental health care. Instead, they are seeking a ruling that the system of treatment patients receive once in custody – or out in the community on extended leave – is 'arbitrary, overbroad and grossly disproportionate.'
Under B.C.'s Mental Health Act, people can be committed for treatment against their will if they meet all of several criteria, including that they are a risk to themselves or others, their mental disorder seriously impairs their ability to react appropriately to the environment, and that they require treatment in or through a designated facility.
But politicians in B.C. and many other provinces are looking to force more people with addictions and mental illnesses into treatment against their will. Critics decry this practice as inhumane, based on unclear science and not as effective as funding better public health care for people who want treatment for their mental illness.
B.C. to introduce involuntary care for people with concurrent addiction, mental disorders, premier says
In B.C., the NDP government is creating highly secure units within jails and hospitals to provide more involuntary care for those with concurrent addictions, mental illness and acquired brain injuries.
In the wake of the Lapu-Lapu Day attack in Vancouver last month, Premier David Eby pledged to 'modernize' the 30-year-old Mental Health Act, saying 'we need to be able to force people into care,' adding that 'the sensitivity around it has led us to delay doing this modernization of the act that everybody agrees needs to happen.'
At the B.C. Supreme Court, Justice Blake is expected to hear from 13 patients or their family members and six experts called by the plaintiff, while lawyers for the provincial attorney-general are expected to call their own involuntary patients and a host of experts to support the current system. The proceedings will break for the summer, and closing remarks are expected in October.
On Thursday, Patrick Williams, lead counsel for the Council of Canadians with Disabilities, told the court that under the Mental Health Act, involuntary patients are presumed to be incapable of giving, refusing or revoking consent to psychiatric treatment, whether or not they have the capacity to decide for themselves what is best.
Plus, he added, they have no ability to review the treatment plan of their caregivers or appoint a substitute decision maker, like in other provinces.
B.C.'s experiments in involuntary care face two crucial tests against the evidence and the electorate
That means their Section 7 Charter right to a fair process while detained is violated, he argued.
'We say the provisions are procedurally unfair because they deny involuntary patients an ability to seek review of decisions,' said Mr. Williams, flanked by seven other lawyers for the plaintiff.
Avichay Sharon, lead counsel for the province, said in his opening remarks that the lawsuit is based on a 'reductionist and overly simplistic conception of liberty simply as freedom from state interference.'
Instead, he argued, the current system buttresses – not breaches – the Charter rights of patients because it allows them to stabilize and regain their health and freedom.
'It is not only permissible, but it is also the just and the right thing to do. It is the moral thing to do. In some cases, it may be the only thing to do – both for the patient's sake as well as others.'
Mr. Sharon said he would call mental-health advocate and public speaker Bryn Ditmars, who has spoken publicly about how a series of seven involuntary hospitalizations eventually helped him overcome psychotic breaks, one of which was violent.
The Mental Health Act allows a person diagnosed with a mental disorder who is unwilling to be treated to be detained first for 48 hours. Within that time frame, a second certificate is required to detain the patient for a month. The certificate can be renewed for another month, and then the renewals are good for three months followed by six months at a time.