People already detained ‘against their will’ in B.C. for treatment: expert

B.C.’s premier is reinforcing his government’s stance on what he says is a new involuntary treatment for people with substance use disorders and mental health issues, but an expert explains forced treatment already exists.

Legal Director of Health Justice Laura Johnston tells 1130 NewsRadio that this type of treatment is not new. She says currently under the Mental Health Act a physician or a nurse practitioner can involuntarily admit anyone to a designated mental health facility.

“There are criteria set out for making those decisions, but a very large number of people in our province are detained against their will,” she said.

Johnston says those detained have legal rights to challenge the detention, but due to justice barriers, many are not able to access the review mechanisms for the detention. She says fewer than three per cent of detentions reach any form of independent review.

“Very few patients have any sort of success in obtaining remedies when they experience human rights violations or other forms of mistreatment when they’re detained under the Mental Health Act,” she said.

Johnston adds that under the current law, the Mental Health Act overrides any legal plan that an individual might have in place, as well as the wishes of parents and guardians.

“Even if someone has a representation agreement [similar to power of attorney] picking their supported or substitute decision-makers to help them with their decisions and moments where they’re not capable, the Mental Health Act sets that aside, and the facility that’s detaining the individual can forcibly treat individuals regardless of what their wishes are, or regardless of what the representatives wishes are,” she said.

However, Johnston says this law is the subject of an ongoing constitutional challenge.

“Right now, you can be detained indefinitely under the Mental Health Act as long as you continue to meet the criteria for detention, and as soon as you no longer meet one of those criteria, then your treating physician has to let you go.”

Health Justice has been pushing the province to make changes to the Mental Health Act to promote patient rights and protections, suggesting it is “widely documented” that the Act and related policies fail to safeguard human rights.

“BC’s Ombudsperson and community organizations have documented systemic non-compliance with basic legal safeguards and violations of the human rights of people subject to coercive care. BC’s Act was recently singled out for criticism by the United Nations Special Rapporteur on the Rights of Persons with Disabilities following an inspection of Canada,” the group said on its website.

“The Mental Health Review Board has documented that access to justice for mental health detainees is getting worse and concluded that the Act has ‘systemic issues that undermine the ability of patients to receive fair, timely, and independent reviews of their loss of liberty’.

“The Representative for Children and Youth has made several recommendations to reform the Act to better protect children and youth from prolonged unreviewed detention and the harmful impacts of restraints and seclusion, among other necessary improvements.”

In a press conference Wednesday, Premier David Eby doubled down on his controversial approach to involuntary care.

He says there are people on the streets who are mentally ill, brain injured, and “addicted to some of the most addictive substances that humans have ever known,” like synthetic opioids and crystal meth. He says these people are interfering with other people’s rights.

“Through violence, attacks, through making them feel unsafe. But also their own rights are profoundly violated if they can’t get the health care that they need,” he said.

“This isn’t about forcing people into a particular treatment. This is about making sure that their safety, as well as the safety of the broader community, is looked after.”

Eby says some people should be in jail or in intensive or secure mental health treatment facilities to protect them from being exploited or dead.

The premier says the province is continuing to find a balance on people’s rights and freedoms while intervening when they have to.

“We’re going to keep working until we get it right to make sure communities are safe and make sure people struggling with addiction and mental health and brain injuries are safe.”

—With files from Michael Williams.