Mental health touches all of us. According to the Canadian Mental Health Association, as many as 17% of British Columbians are experiencing a mental health or substance use issue today — you likely know someone who is living with mental health challenges. Yet, few people are aware of the legal structures or how to get help. It’s in this landscape that the Community Legal Assistance Society (CLAS), with support and funding from Legal Aid BC, offers representation to people detained under the Mental Health Act (the MHA). CLAS advocates, lawyers, and roster lawyers from the private Bar provide coverage across the entire province.
For many people living with a mental illness, the MHA is the most impactful legislation, as it permits involuntary psychiatric treatment. A person who is certified under the MHA is deemed to consent to psychiatric treatment as an involuntary patient, which typically includes detention in a hospital, taking oral or injectable medication, and being closely supervised by medical professionals even after discharge.
The medical professionals providing involuntary care come with the best intentions — but the involuntary patient experiences an extraordinary and intrusive exercise of state power on their liberty and autonomy. Once certified, they are no longer free to move and act, and may lose their choices in everything from important medical decisions to what clothing to wear. Psychiatric medication can have powerful and uncomfortable side-effects. Many who have been through the experience describe it as confusing, disempowering, or even traumatic.
However, the Mental Health Review Board (MHRB) provides for the independent review of certifications by an administrative tribunal. The MHRB’s mandate is to review whether an involuntary patient continues to meet the certification criteria, and if not, to decertify them — thus restoring their autonomy. An involuntary patient applying to the MHRB for a hearing may request representation from CLAS on the same application.
It’s an imperfect system with multiple procedural challenges. Timely review is important, so time frames for a hearing are often short, with hearings for most recently hospitalized applicants being set within 14 days of the application. The disclosure of medical records often comes only in the last few days before the hearing, with final disclosure and evidentiary submissions of the detaining hospital coming 24 hours before hearing.
Evidence at hearings is often complex, covering an intimate cross-section of a person’s life history. The presenting psychiatrist opposite the applicant often plays multiple roles, being an advocate for the facility, an expert witness, and their treating doctor all at once.
This is not to mention the emotional weight of the process — it is no small task for a person to sit through a dissection of their life and decisions before a panel of strangers, even at the best of times.
It’s hard to imagine how daunting a task self-representation would be under these conditions. The value of having counsel present, to help the person understand their rights, present their case and feel heard, is critical. Not just to the fairness of the process, but also to that person.
The Charter of Rights and Freedoms requires that the individual’s right to liberty not be deprived except in accordance with the principles of fundamental justice. A key element of access to justice is having counsel to defend their autonomy and liberty, a point sharpened by recalling that these are people subject to detention and involuntary treatment through no fault of their own.
CLAS is proud to be a piece of the access to justice puzzle by providing representation at MHRB hearings. CLAS does more, too — mental health detentions are only one part of the work. The different CLAS programs provide advice or representation in spheres ranging from human rights and sexual harassment to judicial review and systemic work. We are grateful to our funders for resourcing our efforts.