BC’s Mental Health Act Will Be Overhauled

British Columbia will overhaul its Mental Health Act amid rapidly rising involuntary admissions and years of human rights concerns raised by patients, families and advocates, Attorney General David Eby told The Tyee today.

The province introduced amendments to the legislation Thursday to create an independent service to advise people detained involuntarily about their rights.

That same day, an all-party legislative committee examining the Police Act recommended a “broad review” of the Mental Health Act, echoing calls from the B.C. Office of the Ombudsperson and legal advocacy organizations.

Eby said Thursday’s amendments are the first step in what will be a “significant modernization” of the legislation, which has been largely unchanged for nearly three decades as British Columbians’ mental health care needs have increased and changed.

“Anytime that the government is stepping in, and essentially taking over control of some aspect of some person’s life, we’re doing a review of those processes and that legislation because it’s very dated,” said Eby, noting the review will include public guardianship laws for seniors and adults, too.

The number of involuntary admissions in B.C. has doubled in 14 years to more than 28,000 in 2020, while the province’s population grew by less than 20 per cent in that time, The Tyee reported in November.

Eby’s announcement of the review, which will also involve the ministries of health and of mental health and addictions, comes three years after a B.C. Office of the Ombudsperson report found medical detention for mental illness is an extraordinary state power with little oversight or accountability in B.C.

The report recommended an independent rights service be created in B.C., as it exists in other provinces like Manitoba and Ontario.

B.C. fails to notify patients of their rights to legal representation or a review panel about half the time, and only completes all the necessary legal and medical paperwork for about 28 per cent of patients, according to the report.

Another 2017 report from Community Legal Assistance Society found patients’ rights were repeatedly and regularly being violated at nearly every stage of the detention process.

“Our mental health system is increasingly interacting with people with mental health problems in an adversarial way by removing their rights, rather than in a voluntary way that promotes autonomy and collaboration in the recovery process,” said report author and lawyer Laura Johnston at the time.

An independent rights advisor service is just one essential component of robust access to justice for involuntary patients, said Canadian Mental Health Association CEO for B.C. Jonny Morris.

“To see a protection being contemplated that would increase the number of eyes on someone, experience of being detained under the act is welcomed,” Morris said in an interview.

And a review would be an opportunity to ensure the dignity and rights of all patients are upheld, he added.

An individual can be involuntarily admitted for treatment under B.C.’s Mental Health Act if three criteria are met: they have a mental illness that requires treatment; they have deteriorated significantly or pose a risk to themselves and others; and they cannot be admitted voluntarily.

Mental illnesses that may meet these criteria include depression, anxiety, schizophrenia, mania, psychosis, bipolar disorder and many other mental health conditions. People who experience substance-induced psychosis due to drug poisonings are also admitted.

B.C.’s Mental Health Act is unique in Canada because it does not require the consent of involuntary patients for any recommended treatments.

This means patients do not have the ability to determine which treatment course they would like, even when they are capable of doing so, and their families and loved ones may not provide substitute consent on their behalf.

Similar clauses in Alberta and Ontario legislation have been overturned through charter challenges before the courts. B.C. has said it will appeal a charter challenge brought by the Council of Canadians with Disabilities to the Supreme Court of Canada.

There are also no mandated or automatic independent reviews for a detained person, meaning in theory someone could be held indefinitely if their certification is renewed by a physician at each six month renewal interval. There is a mandatory review of anyone who remains certified after leaving the hospital, known as extended leave, after 12 months.

Eby said changing approaches to severe mental health issues will need to be incorporated into B.C.’s legislation through the review process.

Kevin Love, a lawyer with Community Legal Assistance Society’s community law program, hopes to see a consultation process that centres on the experiences of people who have been detained. Their right to refuse specific treatments must also be recognized, Love said.

“The key is going to be a shift from a framework that focuses on coercion and punishment to a regime that promotes access to quality health care and the protection of human rights and dignity for those affected.”

As the policy work is underway, Eby said establishing a rights advisor is a first step to ensuring better access to justice for those admitted.

Only about three per cent of applications for review of someone’s admission go to the Mental Health Review Board, and many people cannot find or afford legal representation.

Involuntary patients are also disproportionately people unable to access preventative care before their conditions reach a crisis point, meaning many are poor, Indigenous, racialized, disabled and living in rural areas.

The rights advisory service will begin in 2023. The first phase will make advisors available upon request after a hospital worker informs the patient this service is available.

Consultations will mostly be by phone or virtually, with some in-person services. Eby says it will be a priority that agencies contracted to provide the service hire people fluent in a variety of languages to reduce language barriers, as well as to ensure all are working from a framework of cultural safety and competence for Indigenous people.

In the second phase, hospitals will inform advisors of an admission and that patient will be contacted directly, as the ombudsperson has recommended.

Advisors will also help people file appeals and requests for review of their admission, in addition to providing summary advice.

Morris says he and other advocates will be closely watching the implementation. Virtual advice may not be great for people with certain symptoms, he noted. But it’s also important to have access across the province.

Virtual service might be a way to launch the program, “and then drive the opportunity and the need for in-person rights advice going forward,” he said.

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