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Flowers are left near the crime scene after a man drove a vehicle into pedestrians at the annual Lapu Lapu festival in Vancouver in April. After the attack, B.C. Premier David Eby announced his government will review the province’s Mental Health Act.NAV RAHI/The Globe and Mail
Consent, dignity and bodily autonomy are the foundations of Canadians’ Charter right to life, liberty and security of the person, and are a cornerstone of health care – except when you are receiving involuntary treatment for mental illness in British Columbia.
Mental illness already strips too many people of too much of their dignity and autonomy. And B.C.’s archaic “deemed consent” clause takes whatever is left. The Mental Health Act provision, under which a certified patient is deemed to have consented to any and all treatment authorized, is a stain on B.C.’s human rights record. And it’s unconscionable that the province did not abandon this backward principle long before its hand was forced.
Deemed consent is deeply upsetting to many people with mental illness and their family members, and B.C. has fought a Charter challenge to the principle for the last decade. In 2019, an Alberta court ruled similarly broad powers over involuntary patients were unconstitutional.
It appears Premier David Eby and the NDP see the writing on the wall for this dehumanizing practice. Last week, days after closing arguments in the Charter challenge ended, his government introduced a bill to remove the deemed consent clause and add language about shielding doctors and nurses from liability that it said will strengthen involuntary care. A promised review of the Mental Health Act – prompted by the deadly vehicle attack in Vancouver in April – will no doubt bring more changes.
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Involuntary treatment is a necessary part of mental health care and a life-saving tool when people pose a threat to themselves or the safety of others. It is more than justified to infringe upon individual liberties when someone is unwell and will not or cannot access care on their own – and failing to intervene is cruel itself. We would not leave someone struck by a vehicle to die on the pavement, and we should not abandon people with mental health issues to a miserable existence on the streets.
But there is nothing compassionate about the assumption of incapacity. Deemed consent, at best, is too blunt an application of the moral argument for involuntary care, and at worst, it exacerbates the very dehumanization it purports to prevent.
No matter why a person is detained under the act – a psychotic episode, overwhelming delusions or perhaps suicidal plans – they are in an extremely vulnerable state. Many lack insight into their own illness or reject that they need treatment at all. A doctor or nurse practitioner can still proceed with treatment in such cases, even without a deemed-consent provision, through a formal assessment of that patient’s capacity.
With deemed consent in place, such an evaluation is not required before ordering treatments that can include medications, physical restraints, isolation and electroshock. There are no re-evaluations if a patient’s capacity changes, and prior wishes by the patient or input from families can be ignored.
That means a person who becomes lucid after a psychotic episode has no say in which medications they are forced to take even if they know which ones have worked in the past. A trusted friend or family member has no way to advocate on their behalf. Doctors who are well meaning but, like all of us, fallible, have the power to unilaterally make life-altering decisions for some of the most vulnerable patients imaginable.
This no doubt eases providing necessary care for protesting patients in B.C.’s stretched mental health system. But as voluntary support remains inadequate and the number of involuntary patients rises, the province must weigh safeguarding human rights more heavily than expediency.
Giving patients a say when possible, even when they are still being treated against their will, also builds trust and removes a barrier to seeking care. A study of B.C. patients found that fear of losing autonomy if certified involuntarily was a major deterrent to asking for help, but patients who were consulted on their treatment plans were more likely to co-operate, keep taking their medications and remain connected to the health-care system after being discharged.
Involuntary care – an immense power that government can wield over an individual – exists for good reason. But deemed consent is an overreach that unnecessarily damages the dignity of people with serious mental illnesses. B.C. must ensure the cure is not worse than the disease.
