There has been recent renewed attention on BC’s mental health legislation, prompted by a Charter challenge led by the Community Legal Assistance Society, and the Council of Canadians with Disabilities, to address the issue of involuntary psychiatric treatment under BC’s Mental Health Act.
Most provinces and territories in Canada have some sort of legislation designed to allow people living with a diagnosis of mental illness, to be involuntarily admitted to hospital, when they are at risk of deterioration, or if they or others are in need of protection. A physician can involuntarily admit someone to hospital, but the decision needs to be confirmed by a second physician within 48 hours.
BC’s Mental Health Act differs from legislation elsewhere in the country, because once someone is involuntarily admitted, they are deemed to have consented to any psychiatric treatment chosen by the treating physician. In other words, a person’s consent is not required for a particular treatment or intervention to be given, like medication. This aspect of the Mental Health Act applies when the person is back in community, if they are on extended leave.
Legal experts like Professor Ruby Dhand and Professor Isabel Grant note that other jurisdictions have taken a different approach to the consent to treatment issue . For example, Ontario has legal requirements to ensure that involuntarily admitted people are assessed to see if they have capacity to make a treatment decision, and if not, substitute decision makers can be appointed.
The issue of substitute decision makers, which would become increasingly important if the Charter challenge is successful, has led to some being concerned that family members would be forced to make a treatment decision on behalf of their loved one. Some are concerned about the subsequent impact upon relationship and how to make the best choice for the patient. It is worth noting that the current BC Health Care (Consent) and Care Facility (Admission) Act addresses the duties of a substitute decision maker in detail, clearly specifying that it is a role to be performed willingly. In other words, the substitute decision maker must be willing to comply with their legislated duties.
The issues of involuntary treatment, consent, meaningful involvement of family members and caregivers, often colliding with a crisis point in someone’s life, are complex. Individuals accessing the system, their family members, caregivers, loved ones, and supporters, organizations, and government can all have different positions on the issue of involuntary treatment.
It is recognized that family members can experience significant distress if a loved one deteriorates after refusing treatment and support. It is also recognized that individuals living with mental illness can have negative experiences with involuntary treatment. It is also likely that both groups have experienced frustration and distress trying to access adequate services and supports on a voluntary basis. And above all, there is a real need to vigorously protect the human rights of all people, including those living with a mental illness or addiction. The Charter challenge presents an opportunity to review a key component of legislation that has profound impact upon people involuntarily admitted to hospital.
In this complexity, it is even more important for us to work together to strengthen the safety net in community, making sure that we are doing all that we can to provide compassionate, accessible, and acceptable voluntary services and supports, that can help prevent someone from deteriorating and becoming a candidate for involuntary admission and treatment.
A lack of available and acceptable community services and supports creates the conditions for people to experience mental illness and addiction at Stage 4 when involuntary admission, treatment, and deemed consent become the only remaining options.
We can do better #b4stage4 through efforts to:
- Focus on prevention and early intervention
- Build a quality addictions recovery system
- Strengthen recovery closer to home in community
- Improve crisis care
- Lead change in mental health and addictions.
What would it look like if the services that become available on an involuntary basis were available at the same level voluntarily? Would this diminish the need for involuntary hospitalization and treatment when people are at Stage 4?
Learn more at www.b4stage4.ca.
1 Dhand, R., & Grant, I. (2016, September 23). Opinion: Charter challenge to B.C. Mental Health Act long overdue. Vancouver Sun. Retrieved from http://vancouversun.com/opinion/opinion-charter-challenge-to-b-c-mental-health-act-long-overdue