The Community Legal Assistance Society (CLAS) welcomes the Ombudsperson’s report released March 7, 2019, “Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act”. The report serves as an important evaluation of detaining facilities’ compliance with completing 6 required forms related to involuntary admission under the Mental Health Act. The investigation findings reflect what countless people detained under the Mental Health Act and community groups and organizations such as CLAS have been saying for decades – that involuntarily detained patients’ rights are routinely violated and disregarded in BC’s mental health system.
The Ombudsperson found disturbingly low compliance rates with the forms that are supposed to ensure that fair procedures are followed. The report finds that during the one month data collection period, only 28% of all patient files across BC’s health authorities included the initial set of forms required by law. The report states that “the systemic failure to follow the procedural safeguards required by the Mental Health Act is incompatible with the protection of the values of individual liberty and autonomy articulated in the Canadian Charter of Rights and Freedoms.”
People who have been involuntarily detained under the Mental Health Act consistently point to the high levels of force and coercion they experience as a reason they delay or avoid seeking mental health services. As the report points out, “British Columbia is the only province in Canada where a capable, involuntary patient has no right to refuse psychiatric treatment.” Form 5 exists as a way to document the type of non-consensual psychiatric treatment people are administered. But chillingly, the report found that less than 1 percent of Form 5s had an adequate description of the psychiatric treatment, and that nearly all Form 5s were rubber-stamped or “so vague as to be meaningless”. CLAS and the Council of Canadians with Disabilities continue to fight against the “deemed consent” law in the BC Mental Health Act that deprives involuntary patients and their family and friends of basic health care consent rights.
When any person is detained in Canada, detaining authorities must notify detainees of their rights under the Charter, including the right to legal advice. But the report found that the required Form 13 notification of legal rights was completely absent in 51% of the files, and not promptly completed in many more, meaning that most detainees were not properly notified of their rights. And in BC, there is no legal aid service available for mental health detainees to get independent legal advice on detention, which means many rights violations and unfair treatment go unnoticed.
The Ombudsperson recommended that an independent rights advice service be established “to ensure that involuntary detentions are lawful and that procedural safeguards are followed for all patients” – something that people who have been detained and organizations like CLAS have spent years advocating for. We commend the BC Attorney General for its decision to fulfill mental health detainees’ Charter rights by establishing an independent legal advice service.
But there is much more that needs to be done to bring BC towards a mental health system that is effective and treats patients with dignity. Even if detaining authorities complied with the existing Mental Health Act, it’s not enough to fulfill the rights guaranteed by the Charter and international human rights law. As documented in Operating in Darkness: BC’s Mental Health Act Detention System, there are significant problems with the Mental Health Act, including authorizing detaining facilities to “discipline” mental health patients and mechanically restrain or solitarily confine them in seclusion rooms without any criteria or limitations. We look to the BC government to engage in a comprehensive review of the Mental Health Act and amend the legislation to create a dignified and effective mental health system with meaningful safeguards.