The B.C. Supreme Court will soon decide whether psychiatric patients held against their will are having their Canadian Charter of Rights and Freedoms violated when they are forced to undergo treatment and take medication.
After a long and winding nine-year process, the Charter challenge of the B.C. Mental Health Act wrapped up case presentations on Friday, June 27. Closing arguments will be heard in the fall, and are tentatively scheduled for 10 days starting Oct. 27.
At issue is the Mental Health Act's "deemed consent" provision, which says that if a patient is held involuntarily, they cannot refuse psychiatric treatments.
This can include everything from anti-psychotic medications to electro-shock therapy.
The lawsuit was initially filed jointly by two individuals and the Council of Canadians with Disabilities against the B.C. government, but the two individuals later backed out. The province tried to have the case thrown out by arguing the council did not have the right to sue on its own.
The B.C. Supreme Court agreed, dismissing the suit, but the council appealed. The case first went to the B.C. Court of Appeals, then to the Supreme Court of Canada, which overturned the decision and allowed the case to go on with the council as the sole plaintiff.
At stake is the future of the law that is used as the basis for the involuntary treatment of people in B.C.
Strengthening and clarifying powers allowing for people to be held involuntarily has recently been supported by politicians from both sides of the aisle in B.C. as a way to combat street disorder.
And, there is added public scrutiny after the alleged perpetrator of the Lapu Lapu attacks was reported to have been in treatment under the Mental Health Act in the days leading up to the tragedy in Vancouver that led to the deaths of 11 people.
Premier David Eby ordered a review of the Mental Health Act after the attack, saying he would have done so sooner if it weren't for this Charter challenge working its way through the courts.
Eby backed the need for deemed consent recently, saying he believes "very strongly" in involuntary care.
"There are people who are so mentally ill that they are unable to make informed decisions for themselves about their care and treatment," he said on June 25.
A violation of human rights or compassionate care
The basis for the court challenge is the argument that the "deemed consent" provision violates Section 7 of the Canadian Charter of Rights and Freedoms by infringing on a person's right to life, liberty and security of person.
The Charter was created in 1982, but the Mental Health Act was passed in B.C. in 1964.
"Our position is that the current deemed consent provision under the B.C. Mental Health Act is inhumane," said Yvonne Peters of the Council of Canadians with Disabilities in an interview with simplymastery. "It's out of date, and it is not in compliance with contemporary human rights requirements."
She is concerned the tragedy in Vancouver will skew public perception of the issue, leading to an imbalance toward detaining people.
"We're saying that public safety might even be enhanced if we have a broader network of support, and if people have family members and friends in their corner," she said.
Some experts say these powers are needed to help people who cannot help themselves.
Dr. Kenneth Fung, a University of British Columbia associate professor in the faculty of medicine and an expert in healthcare policy, said some people will not get better unless they are forced into treatment.
He gave the example of people living in the Downtown Eastside who were released from care years ago when the province closed Riverview Hospital in Coquitlam.
"They drift into more and more serious problems without deemed consent, prolonged deemed consent," he said. "They don't get better."
Fung advocated for the ability of doctors to be able to provide whatever treatment helps the patient get better — including electro-shock therapy — which he said is proven to help some of the most severe cases, and is not done without first trying other things, such as medication.
Because of the court challenge underway, Fung said psychiatrists are reluctant to use these sorts of treatments while they see how it plays out.
"Most psychiatrists will probably think twice," he said.
Claire Rattée, the B.C. Conservative Mental Health and Addictions critic wants psychiatrists to be able to treat people who cannot make decisions for themselves, but also wants families to be more involved in their kin's care. This was long a priority for her predecessor in this critic role, B.C. Conservative MLA Elenore Sturko.
She wants to introduce compassionate care legislation that would make it easier for family members to have a person committed. Rattée has personal experience with addiction and homelessness and said her parents would have forced her into treatment had they been able to. She said she believed this would have helped her.
"Had that been an option for them, they would have done it in a heartbeat," she said.
But beyond making it easier for people's families to be involved in their care planning, Rattée is not looking to weaken doctors' authority to medicate psychiatric patients against their will.
She said it is more compassionate to help these people be able to live in society and not have to be locked up.
"If it's a medication that they need to be on that helps to manage those symptoms, then I don't know why anybody wouldn't be in favour of that," Rattée said.
Premier wants to protect the 'deemed consent' provision
After the Lapu Lapu attack, Premier Eby committed to reviewing the Mental Health Act, saying that while he knew it was outdated, he had been hesitant to change it up to that point because of the Charter challenge underway.
Peters said she does not understand why the government can't end the court challenge by agreeing to take the "deemed consent" provision out of the act, and then rewrite the legislation.
"Instead of wasting all of our time and resources and people's tax money and going to court," she said.
But, Eby was clear he wanted to ensure the ability of the province to treat people incapable of sound decision-making remained intact.
"They need support," he said. "And as British Columbians, I don't believe that we should choose to let them die in the street."
