In a recent decision, the BC Supreme Court ruled that BC’s practice of forcibly treating involuntary psychiatric patients – without assessing their capacity or allowing available representatives or other legal decision-makers any say – is unconstitutional. BC Supreme Court Justice Blake has paused the effect of her judgment for 6 months to give the BC legislature time to consider how they will respond to the Court’s reasons.
BC’s regime found to be an outlier
BC has what is referred to as an “Involuntary Treatment Regime”: If a patient who is involuntarily admitted to a mental health facility refuses to consent to psychiatric treatment, the director of the facility can ‘deem’ (substitute) consent to psychiatric treatment on their behalf, overriding the patient’s refusal. It does not matter whether or not the patient is capable of making decisions about their treatment. The director does not have to consider the involuntary patient’s current wishes or their prior expressed capable wishes. Representatives (under a Representation Agreement) or other substitute decision-makers have no powers to make decisions on the patient’s behalf if they were incapable, nor would an Advance Directive apply. The Court found that this Involuntary Treatment Regime approach deprives individuals of their fundamental health care consent and decision-making rights, violating two Charter rights: the right to life, liberty and security of the person, and the right to equality.
BC was found to be the only jurisdiction in Canada that:
- does not require that an involuntary patient be assessed to see if they are capable to make decisions about their treatment;
- gives the detaining psychiatric facility the power to treat a capable involuntary patient against their will; and
- has no independent oversight of a physician’s assessment that a patient is incapable of making treatment decisions.
The Court found that there was a lack of evidence that BC’s Involuntary Treatment Regime approach led to better outcomes than the approaches in other jurisdictions where the law restricted people’s fundamental rights less.
What does this mean for the Representation Agreement Act (RAA)?
Nine other Canadian jurisdictions strike a balance by requiring consent from a substitute decision-maker (SDM) before treatment is administered to an involuntary patient who is incapable of making treatment decisions. The SDM is to be appointed by or related to the patient, and preference is given to a SDM pre-appointed by the patient (in a legal document or other process) or by a court.
Right now, Sections 11(1)(b) and (c) of BC’s RAA do not allow someone to make a Representation Agreement that authorizes a representative to refuse consent to care or treatment if they are involuntarily detained under the Mental Health Act. These sections were declared by the Court to be of no force or effect (at the end of the 6 month pause).
We don’t yet know how the BC Legislature will respond to this part of the ruling – they could draft replacement laws. However, the Court is clear that such a broad prohibition on a person’s right to choose who can make mental health treatment decisions on their behalf if they become incapacitated due to a mental disorder is discriminatory. It treats individuals living with (or planning for the possibility of) a mental disorder as less able of engaging in appropriate advance decision-making for psychiatric conditions than for other (physical) health conditions. The Court acknowledged the inherent value of the right to self-determination, which has been recognized in our society as being fundamental to an individual’s dignity and autonomy.
Self-determination is also a central value to Nidus’ work. Nidus’ vision is that adults in BC exercise their right to self-determination and have access to trusted support through personal planning should they need help with decision-making. As stated by the Court, the right to self-determination is equally important in the context of treatment for mental illness. Nidus will be following and reporting on the legislative response to this case. To stay tuned, subscribe to our newsletter at nidus.ca/subscribe.