Lawyers Ruby Dhand’s and Isabel Grant’s argument,
Challenge to B.C.
Mental Health Act overdue, September 24, trying to
justify the challenge, is disconnected from what really
matters – the ravages of serious mental illness and getting
Serious mental illness, unlike most other illnesses,
involves in many cases, especially with schizophrenia, a
lack of insight by the person into their illness, a clinical
condition known as anosognosia. The brain, on which insight
depends, is affected by the illness itself.
ill people who are deteriorating, or in their paranoia
becoming dangerous or suicidal, but unaware and denying they
are ill, society needs to help.
It’s why we have involuntary admission, following
benchmark criteria, and subsequent treatment.
Otherwise we wouldn’t need to have a mental health
act at all.
On that score – getting people well while safeguarding their
rights with an appeal provision – the B.C. Mental Health Act
is a leader in Canada.
Saskatchewan and Manitoba, by the way, have long had
similar involuntary admission criteria, and Alberta, Nova
Scotia, and Newfoundland in recent years, concerned by some
of their own experience in the field, have amended their
criteria along similar lines.
What exercises Dhand and Grant in particular, though, is
that in B.C. treatment follows on the heels of involuntary
indignantly call B.C. an “outlier” for this and allege as
fact that B.C. is “the only jurisdiction in Canada that
provides compulsory psychiatric treatment” as decided on by
is both incorrect and misleading.
The treatment decision, in involuntary admission
cases where the patient is incompetent, is also made by
physicians in Saskatchewan and Newfoundland.
In Quebec, it’s done by court order and in New
Brunswick by an administrative tribunal, also without the
Some other provinces, like Alberta and Manitoba, provide for
a substitute decision-maker, say the closest relative.
However, they have to use the same criteria as
physicians, and if they reject treatment but the physician
nevertheless believes it is in the patient’s best interests,
the physician can file an application for a treatment order
to a review panel.
Ultimate authority, then, lies with the review panel.
Note that in all of these variations – decision by
physicians, court, tribunal, substitute decision maker, or
review panel, the resulting authorized treatment is given
without the patient’s consent, which is the nature of trying
to help someone without insight into their own illness.
The advantage of physicians deciding is that it puts
the focus clearly on clinical factors and avoids treatment
delays, important in cases of psychosis.
Dhand and Grant. instead, seem enamoured by Ontario’s
legislation, retrograde legislation which can commit someone
who is ill because they’re considered dangerous, but can in
certain circumstances – for example, a previous wish while
they were allegedly competent – allow them to refuse
condemns the ill person to indefinite detention and
continuing deterioration, although treatment exists and
they’ve committed no crime.
It’s a cruel scenario.
The writers even go so far as to cite with approval a
controversial Supreme Court of Canada split decision, the
Starson case, whereby, under Ontario law, Starson was found
competent to reject treatment although quite ill and
delusional, so much so that he couldn’t be discharged.
The overall result – seven years trapped in
detention, with his illness rampaging on, until someone used
changed circumstances (delusion-driven starvation) as an
excuse to treat him.
In another Ontario case, an ill man was kept in
seclusion for 404 days because he was out of control, but
couldn’t legally be treated.
In B.C., by contrast, the basic objective of involuntary
admission is treatment – to get the person well and
Which is preferable?
Why involuntarily admit someone if not to treat them
and get them better?
Dhand and Grant also err on other points.
They write that “both the common law and the charter
are not being adhered to in B.C.”
This is just wishful opinion.
Cases arising from particular Ontario legislation
don’t apply holus bolus to B.C.
On the more general
question of involuntary admission and treatment, B.C. does
have a landmark charter case, the McCorkell decision, 1993,
in the Supreme Court of B.C., which found in favour of the
Act (an earlier version similar to the current one).
The writers’ insinuation that the B.C. model produces
“dangerous outcomes” is, for its part, wrong-headed
really dangerous outcome is ill people not getting the
treatment they need, “madness in the streets,” avoidable
violence and suicide, the piling up of mentally ill people
in jails and prisons, and all the other tragedy and loss
that comes from overly restrictive obstacles to treatment.
Dhand and Grant err as well in stating that B.C., alone of
all Canadian jurisdictions, has no specific legislative
Involuntary admission decisions in B.C. are
immediately open to review by a three-member panel and must
be heard within 14 days of application, with a decision no
later than 48 hours after that.
The patient can be represented and the process is
We’re lucky in B.C. to have a straightforward, sensible
mental health act that aims at getting people well.
Dhand and Grant have grabbed the wrong end of the
Herschel Hardin is a former president of the North Shore