British Columbia’s Mental Health Act is under fire. On September 12, a legal action was filed in B.C. Supreme Court. It is challenging the constitutional validity of the legislation and argues that the forced treatment of patients, who are suffering from mental illness, is done in breach of their charter rights.

By way of background, under the Mental Health Act, any person who is involuntarily detained at a facility for mental-health reasons lacks the ability to consent, or deny consent, to any medical treatment. In other words, they are deemed to consent to all psychiatric treatment so long as it is authorized by a director appointed by the health authority. It also denies them the ability to designate and appoint a substitute decision maker on their behalf, such as a spouse or a parent. 

This means that patients who have been involuntarily detained may be subjected to medical treatments against their will. Treatments can include medication, including injections, and invasive therapies, such as electroconvulsive therapy.

The Mental Health Act is in stark contrast to the law governing general health care in this province. This law states that service providers cannot treat a patient without their express consent. The only exception to this is if there is an emergency or otherwise extraordinary and urgent circumstance. It also allows individuals who are not afflicted with mental-health issues to select substitute decision makers or make directive plans for their future care in the event that they would be unable to make such decisions or provide such consent on their own. In this way, it puts patient autonomy and dignity at its forefront.

Those who fall under the Mental Health Act are not afforded the same respect. The legislation assumes that they are incapable of making decisions themselves or of appointing a trusted third party to make decisions if and when they cannot.

While this legislation may seem shocking, the ministry has said that treatment plans are always done in the best interests of patients and on the advice of highly trained medical professionals.

However, it appears that depriving patients of personal autonomy is not necessary to address the often complex concerns associated with mental illness.

British Columbia is actually the only province in this country to retain such a seemingly outdated legislative model. In all other provinces, all adult patients—afflicted with mental illness or not—are presumed to be capable of making decisions related to their own treatment until they are evaluated and proven incapable. Our province is therefore the only jurisdiction in which patients with mental illness are considered to be legally incompetent solely on the basis of their medical condition.

And while the intentions of the Mental Health Act may be good, the reality of the situation may cause more harm than good.

For instance, the perceived inevitability of forced treatment means that some individuals who suffer from mental-health issues may avoid and delay medical intervention until their condition is critical. It undermines trust in medical institutions and causes a discord between patients and professionals. This fundamental mistrust has the potential to cause more harm than is necessary to both the individuals who are in need of treatment and their communities.

Another troubling aspect of this legislation is that it serves to bolster harmful stereotypes about those who are afflicted with mental illness.

It reinforces the negative belief that those suffering from mental issues are more reckless and more irresponsible than other members of society. It also assumes that they are incapable of exercising better judgement or of making reasonable and informed decisions. It does this without consideration of the individual, their affliction, their current state, or their personal characteristics. It assumes that all people with mental illness are the same—and they are inept. It is paternalistic, disparaging, and damaging.

The bottom line is that all individuals, regardless of their physical or mental abilities, should be presumed capable until proven otherwise.

Patients must have a reasonable right to self-determination, and they must feel included and valued in their treatment plans if those plans are to be viable in the long run—and patients suffering from mental-health issues should be no exception to the rule.