Everyone Deserves To Control Their Own Health Care
In BC, people with involuntary status under the Mental Health Act have no right to control what psychiatric treatment they receive. People are ‘deemed’ to consent to all psychiatric treatment and can be forcibly administered psychotropic medications and electroconvulsive shock therapy. CLAS is fighting to ensure that people can control their own health care and have their loved ones involved in making decisions when needed.
In September 2016, CLAS launched a Charter challenge on behalf of the Council of Canadians with Disabilities (CCD) and two individuals who had experienced forced psychiatric treatment. The case challenges the laws in BC that remove any right for involuntary patients to give or refuse consent to psychiatric treatment, either for themselves or through a trusted family member or friend. In October 2017 the two individuals discontinued their participation in the case and the case is proceeding with the Council of Canadians with Disabilities.
Many people who are involuntary patients under the Mental Health Act – whether they are in hospital or living in the community on leave – are capable of making their own treatment decisions, but they have no legal right to do so. Doctors are not legally required to assess whether the person is capable of making treatment decisions before forcing psychiatric treatment against the person’s will. This disturbing approach to forced treatment reinforces hurtful stereotypes by equating having mental health problems with being mentally incapable.
People who have been forcibly treated can be traumatized by the experience and delay or avoid seeking mental health services again in the future. In Sarah’s case, for example, she voluntarily went to a BC hospital with her mother for help with feelings of depression. She was then involuntarily detained and treated. She says being forcibly medicated is terrifying and dehumanizing. In her own words: “My clothes were stripped off me and I was pinned down by four male security guards while someone injected a needle into my backside. I was not given any say in my treatment, and even my mom was not allowed to make decisions for me. I’ve learned how to manage my depression with cognitive behavioural therapy and support from my family. I want to be able to direct my own treatment and recovery."
BC is the only province in Canada that gives doctors the absolute and unchecked power to force psychiatric treatment on all involuntary patients without consent. CLAS is pushing for BC to recognize the health care consent rights that the rest of Canada recognized many years ago.
In August 2018, nearly two years after this case started, the BC government brought an application arguing that CCD should not be allowed to bring the case to trial. The government said that CCD did not have “standing” – or the legal status – to stand up for the rights of people with mental disabilities in court. It is very common for non-profit organizations to file Charter challenges to laws that impact the communities they serve because marginalized individuals often face barriers to launching and sustaining lengthy court cases. However, on October 12, 2018 the BC Supreme Court decided that CCD did not have standing and dismissed the case before it went to trial (read the decision here). CCD has appealed the BC Supreme Court’s decision.
CCD and CLAS are committed to improving access to justice for marginalized communities. People with mental disabilities, particularly those detained under the Mental Health Act, face many barriers to accessing the courts. Charter cases take many years and significant resources to wind through the courts. Individuals who file Charter challenges face the risk of public exposure of their identity, stigma and discrimination, a loss of privacy over confidential psychiatric records, the risk of court costs being awarded against them, potential reprisal from health care providers and personal supporters, and significant stress and upheaval in their lives. For these reasons, many important cases would never get to court unless non-profit organizations like CCD come forward to take on important Charter challenges.
We are disappointed that the government chose to challenge the ability of non-profit organizations to represent the communities they serve in court instead of coming to court to address the issues. The serious questions raised by this Charter challenge about the rights of people with mental disabilities deserve to be considered in court. We hope that the appeal will affirm the important role that non-profit organizations play in improving access to justice.
Lawyers Working On This Case
Press Release September 2016 - Charter challenge of forced psychiatric treatment filed in BC Supreme Court
- CCD's Amended Notice of Civil Claim
- BC's Amended Response to Civil Claim
- CCD's Amended Reply
- BC Supreme Court Standing Decision
- CCD’s Factum in Appeal of Standing Decision
What You Can Do
Express your concerns about the deemed consent law by contacting the British Columbia Ministry of Health.
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