Report says B.C.'s Mental Health Act needs overhaul

She has recommended a law reform commission be struck to look at what she calls systemic problems that permeate the detention system from involuntary detention to release of a person. There are some quick fixes that can be made, she says, such as deleting a section on discipline in the act, but a comprehensive review of the system is needed.   

In her report, she said: "Given the range of actors responsible for creating and administering this system — legislators, police officers, health care professionals, and administrative tribunal members to name a few — and the complexity of the relevant statutes, regulations, policies, and practices, a comprehensive and wide-ranging review is necessary."

The 173-page report, funded by the Law Foundation of BC, maintains that the province has allowed its mental health system to "stagnate and operate in darkness" whereas other provinces have updated their mental health legislation. The report contends that people with mental health issues are leaving B.C. for treatment in other provinces where their human rights will be protected.

Johnston maintains that B.C.'s mental health detention system is so restrictive that it permeates every phase of a detainee's life.

"Your clothing can be removed by force from your body and you can be denied access to your own clothes. You can be forcibly administered psychiatric treatment, including injections and Electroconvulsive Therapy. You can be placed in mechanical restraints that tie you to your bed. You can be put in seclusion,” she writes in her report.

B.C.'s lack of protecting mental health patients’ human rights stems from a variety of factors ranging from lack of legal education on the part of physicians, lack of funding for legal aid and lack of advocacy and legal advice. But the lack of government vigilance is a major fault.

"The greatest factor has been the lack of leadership and oversight from the ministry of health," she says. "My primary concern is focus. Where is the ministry in this?"

Johnston's report (concluding with recommendations) looked at whether the substantive and procedural rights of detainees in B.C. are being observed and adhered to as set out in the Mental Health Act, the Mental Health Regulation and the polices of the Mental Health Review Board and the Ministry of Health, and secondly whether these rights were upheld in administrative fairness and Charter rights.

She carried out 21 interviews with legal representatives ranging from lawyers who had represented hundreds of patients over 25 years of practice to new lawyers working pro bono on cases. As Johnston conducted her research, she said it became apparent that mental health patients were detained and forgotten.

"The legal representatives who participated in this research repeatedly described our mental health detention system as opaque, unclear and obscure — a system in which people are tucked out of sight with no monitoring, oversight or accountability," she said.

Johnston says one of the conflicts in the system is that care staff (who give patients advice on their rights but can't give legal advice) are the same individuals the detainee seeks out for help to get legal representation to a human rights issue that may involve staff or the facility.

Unlike many other Canadian jurisdictions, Johnston said, the B.C. Mental Health Act and its regulations do not address topics such as detainees’ rights to communicate with their advocate or lawyer, and while speaking freely and privately with a legal representative is a fundamental cornerstone right in the legal system, it is often ignored.

"Representatives reported many situations in which detainees have been denied access to their legal representative and have had their solicitor-client privilege breached by the facility staff responsible for their detention,” she said in her report.

Legal representatives cited in the report also expressed frustration with detention forms outlining the reason for detention where physicians’ handwriting was so illegible only a few words were clear or the person had not been examined.

She maintained that, once detained, caregivers were free to use restraints, place individuals in solitary confinement with no accountability or force treatment.

"In B.C., all detainees are deemed to consent to any form of psychiatric treatment, and once detained, psychiatric treatment may be forcibly administered," the report said.

Johnston says there is no provision that people in detainment undergo a periodic review for release. Unless a physician or that person makes a request for release, the individual can be detained indefinitely. Prison inmates in the judicial system have more access to rights than individuals who become ensnared in the mental health system, she says. 

The CLASBC report is the second 2017 report critical of B.C.'s outdated Mental Health Act. In February, the Canadian Bar Association B.C. branch issued "An Agenda for Justice" — a 26-page report outlining needed changes to the justice system, including changes to the Mental Health Act.

"The proposed amendments to the Mental Health Act that the Community Legal Assistance Society has put forward to the B.C. government would promote a fair and independent hearing for patients who are subject of a physician’s decision to involuntarily detain them," said CBABC president Bill Veenstra. "If these changes are implemented, it will help ensure that our most marginalized populations will have transparent and adequate access to legal representation."