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British Columbia’s Mental Health Act violates charter rights: report

British Columbia routinely violates the rights of people in mental-health detention by subjecting them to involuntary treatments, "discipline" through solitary confinement and restraints and not offering legal aid at the time of admission, according to a new report.

The report, authored by lawyer Laura Johnston at the Community Legal Assistance Society and released on Wednesday, shows that a lapse in mental well-being can lead to a violation of one's Charter rights in B.C.'s mental-health detention system. While comparable mental-health tribunals in other Canadian provinces and territories produce annual reports on practices, performance measures, training and outcomes, B.C.'s Mental Health Review Board produces no such report.

"We are one of the most regressive jurisdictions in Canada," Ms. Johnston said. "Our law is silent on a lot of topics that other provinces and territories address and where our law does address an issue, it's often in a way that isn't compliant with Charter rights."

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B.C.'s Ministry of Mental Health and Addictions did not respond to a request for comment.

A primary concern highlighted in the report is that people involuntarily detained for mental health reasons do not have the legal access they are guaranteed under Canada's Charter of Rights and Freedoms when they are first detained.

"When [mental health] detainees are first apprehended, there is no legal-aid funding or structure to provide them with independent legal advice. Instead, the Mental Health Act puts the onus on the facility staff to provide that legal rights information," Ms. Johnston said. "Health-care providers simply aren't equipped to give legal advice."

The report also notes that B.C.'s Mental Health Act allows facilities to put involuntary patients in solitary confinement or restraints.

Ms. Johnston found solitary confinement being used as a staff convenience measure, a routine admissions feature and even a treatment method; one psychiatrist claimed it had therapeutic value, despite a growing body of evidence showing it amounts to torture.

The report noted B.C. recently heard a constitutional challenge involving the use of solitary confinement in federal prisons. A ruling in the case, which was led by the BC Civil Liberties Association and the John Howard Society of Canada, has not yet been issued.

The report said that while the court case heard that the administrative review process available for prisoners to challenge their solitary confinement was inadequate, for Mental Health Act detainees, there is no recourse to challenge their seclusion at all.

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The Act currently has no definition of restraints or seclusion and no criteria governing what form of restraints and seclusion can be used, under what circumstances, and for what period of time.

"The use of restraints and seclusion is a significant and often traumatic incursion on a detainee's freedom and personal security," the report said. "It is therefore critical that the use of restraints and seclusion is carefully governed, documented, monitored, and subject to review."

Caily DiPuma, acting litigation director for the BC Civil Liberties Association, said in an interview that there are parallels between the Mental Health Act and the federal Corrections and Conditional Release Act.

"We've been in court and argued that solitary confinement in federal prisons engages Section 7 [of the Charter] and violates inmates' liberties in the way that it's being administered and the way that the law is crafted. And I would say the same would apply here," she said.

As well, a person who is involuntarily detained under the Act is deemed to consent to all psychiatric treatment authorized by a director appointed by the health authority.

This psychiatric treatment often consists of psychotropic drugs, but some patients have also been forced to undergo electroconvulsive therapy, in which seizures are induced by administering electric currents through electrodes placed on the patient's head. A Charter challenge to the deemed consent model remains before the courts.

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The report concludes with recommendations for the B.C. government, provincial health authorities, B.C.'s Mental Health Review Board, the Legal Services Society and the B.C. ombudsperson that amount to an overhaul of B.C.'s Mental Health Act.

"I think there is enough here that we can agree there is a problem in the system," Ms. Johnston said. "The Act is outdated, it's deeply flawed, it's violating Charter rights. "

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About the Authors
News reporter

Based in Vancouver, Andrea Woo is a general assignment reporter with a focus on multimedia journalism. More

News reporter

Based in Vancouver, Sunny has been with The Globe and Mail since November, 2010. More

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