Current Cases

Everyone Deserves To Control Their Own Health Care

In BC, people with involuntary status under the Mental Health Act have no right to make decisions about their psychiatric treatment. The law says that everyone with involuntary status is ‘deemed’ to consent to all forms of psychiatric treatment and can be forcibly administered psychotropic medications and electroconvulsive therapy. The deemed consent law also prevents people from making a plan while they are well about psychiatric treatment they want when they have a crisis and prohibits family members or friends from making psychiatric treatment decisions for people with involuntary status.

In September 2016, the Council of Canadians with Disabilities and two individuals who had experienced forced psychiatric treatment filed a Charter challenge to the deemed consent laws. The case challenges the deemed consent laws in BC that remove any right for involuntary patients to make psychiatric treatment decisions, 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. The Council of Canadians with Disabilities is represented by lawyers at the Community Legal Assistance Society and the law firm McCarthy Tétrault.

BC is the only place in Canada where everyone with involuntary status is “deemed” to consent to all forms of psychiatric treatment, without safeguards like an assessment of their capacity to make treatment decisions, recourse to an independent decision maker, and an effective way for involuntary patients to challenge that treatment. This disturbing approach to forced treatment reinforces harmful stereotypes by equating having mental health problems with being incapable of participating in their own recovery. People who have been forcibly treated can be traumatized by the experience and delay or avoid seeking mental health services again in the future, which ultimately undermines access to mental health care.

Case Update

In August 2018, nearly two years after this case started, the BC government brought an application arguing that the Council of Canadians with Disabilities (“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.

Public interest standing is an important way to improve 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.

It is disappointing 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.

Media Coverage

Charter challenge of forced psychiatric treatment filed in BC Supreme Court
Press Release September 13, 2016

A 'psychiatric refugee:' why one woman fled B.C.'s mental health laws
September 18, 2016

CBC As It Happens segment on forced psychiatric treatment
September 13, 2016

CBC Early Edition segment on forced psychiatric treatment
September 13, 2016

'Outdated' Mental Health Act sparks charter challenge in B.C. courtroom
September 13, 2016

B.C. patients launch court challenge over forced psychiatric treatments
September 13, 2016

 

Case Documents

CCD's Amended Notice of Civil Claim
December 11, 2017

BC's Amended Response to Civil Claim
January 31, 2018

CCD's Amended Reply
February 21, 2018

BC Supreme Court Standing Decision
October 12, 2018

CCD’s Factum in Appeal of Standing Decision
February 27, 2019

BC’s Factum in Appeal of Standing Decision
April 11, 2019

CCD’s Reply in Appeal of Standing Decision
May 9, 2019

What You Can Do

Express your concerns about the deemed consent law by contacting:

Attorney General, David Eby
Minister of Health, Adrian Dix
Minister of Mental Health and Addictions, Judy Darcy

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