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Two BC patients claim Charter rights infringed

Sylvia Nicholles (1L) and Anisha Karia (1L)

Two patients who were involuntarily admitted into care have brought a case against the province of British Columbia challenging the constitutionality of BC’s mental health legislation. Mary MacLaren and D.C., allege sections of BC’s Mental Health Act (MHA) infringe on sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Both MacLaren and D.C. were involuntarily admitted under section 22 of the MHA and then released to live in the community on leave. As involuntary patients, both plaintiffs are stripped of their presumed rights to give, refuse, or revoke consent to treatment when capable. Further, in accordance with BC’s Representation Agreement Act, involuntary patients cannot authorize a representative to refuse consent to psychiatric treatment when deemed incapable.

Under current BC legislation, any treatment authorized by a director of a care facility is deemed to be given with the consent of the patient. In the case of MacLaren, this means being subjected to electroconvulsive therapy and psychotropic medications. D.C. has been injected with medication against his will. Both will face similar treatment again should they require medical assistance. MacLaren and D.C. have family members or friends who were, and continue to be, available and able to make medical decisions for them.

According to the filed Notice of Civil Claim, the inability to give, refuse or revoke consent when capable, or appoint a representative to do so when incapable, unjustifiably infringes on section 7 Charter rights which guarantees the right not to be deprived of life, liberty or security of person. Further, MacLaren and D.C. claim that the impugned provisions of the MHA infringe on their right to equality under the law, without discrimination on the basis of mental disability, as set out in subsection 15(1) of the Charter.

In comparison, Alberta’s mental health legislation allows for the appointment of a representative to make decisions on behalf of a person deemed mentally incapable of giving informed consent. Under section 29 of Alberta’s Mental Health Act, an attending physician is prohibited from administering treatment if any objection to treatment is made by a patient who is mentally competent even if involuntarily admitted, or by their representative in the case of a mentally incompetent patient. In stark contrast to BC, the attending physician must apply to the review panel for an order if a patient or their representative refuses treatment.

While an involuntary patient in Alberta has a degree of control over what happens to their body, a similarly situated patient in BC does not, and is at the mercy of the institution that they either came to or were brought to for help. This case highlights the differences between provincially regulated health care systems and points to the potential for a hierarchy of rights between provinces.