It’s Time to Change BC’s Mental Health Act

Supporting mental health requires law reform

It’s Time to Change BC’s Mental Health Act

The creation of the Law Society’s Mental Health Task Force and health-focused editions of BarTalk have promoted conversation in BC about the need to support mental health in the legal profession. Much has related to reducing stigma, for example by normalizing the importance of mental health, so that legal professionals in need of supports feel more comfortable accessing them.

Reducing social stigma is indeed a crucial issue, but stigma goes beyond how we talk about mental health and how we support our colleagues on an interpersonal level. Law and policy can also play a significant part in upholding or combating stigma. BC’s Mental Health Act (the “Act”), the legislation that governs the rights and treatment of a person when they are at their most vulnerable to mental health challenges, plays an unfortunate role in stigmatizing mental health.

The Act and related legislation result in different standards and rights when we’re receiving treatment for a mental health issue than those we are entitled to when receiving care for a physical health issue. BC’s Health Care (Consent) and Care Facility (Admission) Act creates a robust scheme to protect health care consent rights, enshrining that we are all presumed to be capable of making our own health care decisions until we are assessed as incapable and providing a scheme for substitute decision-making should we find ourselves without capacity to consent to health care.

However, if you are receiving involuntary treatment under the Mental Health Act, none of these provisions apply to your care — there is an express statutory override on health care consent rights. Instead, you can be detained in a designated psychiatric facility and any psychiatric treatment authorized by the facility is “deemed” to be given with your consent. Your family and those closest to you are not guaranteed any role in decision-making. Any representation agreement or advance directive in place to establish your health care wishes do not bind the facility or its staff.

In addition, if you are detained under the Act, you are expressly subject to the “direction and discipline” of the facility staff. They make choices about whether you are held on a locked ward, solitarily confined in a seclusion room, subject to mechanical or chemical restraints, or have access to a phone. BC is one of the only provinces in Canada without a publicly funded, independent legal advice and advocacy service available upon detention despite the Charter guarantee of access to legal advice and recent recommendations by the Ombudsperson that such a service be implemented.

BC’s legislative scheme related to mental health treatment reflects out-dated stereotypes and negative assumptions about people experiencing mental health-related care — it sends a clear message that people receiving involuntary treatment under the Act must be treated differently than, and are not entitled to the same rights as, those receiving any other kind of health care.

This kind of stereotyping in legislative schemes reflects a different kind of stigma, structural stigma, which occurs when our laws, policies, and institutions reinforce stereotypes and negative assumptions about a group of people by building those stereotypes and assumptions into the very structure of our public services and systems. That approach then reinforces social and interpersonal bias and negative stereotypes, the kind that might influence the way we treat our colleagues in need of support, in a troubling feedback loop.

Recent work to normalize the importance of mental health, and to reduce shame and stigma related to accessing mental health supports, is crucial. However, if we truly want to improve mental health in the legal profession, we must hold our provincial legislation to the same standard. In order to achieve that, BC’s Mental Health Act needs significant reform.

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