Just past 2 a.m. one early morning in December 2015, Spencer Walden’s wife found him walking up and down the driveway of their Surrey home, barefoot in the rain.
Since he was 16 years old, Walden had resisted taking medication for schizophrenia, sister Tara recounted in a telephone interview with the Georgia Straight.
“When he was taking oral meds, we found that he had too much control over it,” she said. “But it is such a fine line, medicating someone against their will.”
Over the following January and February, Walden, then 32 years old, experienced symptoms of psychosis. His condition deteriorated, and he was repeatedly admitted to hospitals but, each time, was granted leave shortly after.
Instead of forced treatment, the issue the Walden family increasingly struggled with was just the opposite: what they argued was insufficient care, Spencer’s brother Brodie explained in a separate interview.
“How could he go AWOL three times in a row or four times in a row and they not put a stop to it?” he asked. “That’s a question we are asking Peace Arch [Hospital]. ‘Why did you guys do this when we specifically asked you not to?’ ”
On February 18, 2016, Walden broke a window on the seventh floor of St. Paul’s Hospital and fell to his death. A coroner's investigation is ongoing.
Tara emphasized that Walden had a strong support network of friends and family but somehow still slipped through cracks in the system.
“It doesn’t matter what hospital he was at,” she said. “Spencer was failed by three different hospitals in six weeks.
“We told them that we wanted him to stay longer but they didn’t listen to us,” she continued. “What we would have wanted was for them to listen to us.”
Walden’s death raises several complicated questions. Who should have had the final say on whether or not he was administered medication? Because of his reluctance to take his pills, should he have been injected with mind-altering drugs against his free will?
Were doctors right to release Walden from care even when those decisions went against the wishes of his family—wishes that they expressed loudly and repeatedly?
On every side, there are legitimate, convincing, and highly passionate arguments.
A lawsuit filed September 12 in B.C. Supreme Court aims to significantly change how such decisions are made and who is involved in making them.
According to a notice of civil claim that names the B.C. attorney general as a defendant, mental-health legislation concerning consent and decision authority is unconstitutional.
The lawsuit describes how under the B.C. Mental Health Act and associated legislation, patients admitted involuntarily are “deemed to consent”, meaning treatment decisions are entirely at the discretion of doctors. These patients are assumed to lack the capacity to make decisions regarding treatment and cannot legally name a substitute decision maker (commonly referred to as a next of kin).
“Most fundamentally, they [patients] are deprived of the right to control what is done to their own bodies,” the document reads.
Two B.C. mental-health-care patients serve as plaintiffs. The first is Louise MacLaren, a retired nurse diagnosed with bipolar disorder. The second, named only as D.C., is a pianist and Harvard University graduate living in Vancouver. Doctors have not given him a definitive diagnosis but suspect either bipolar disorder, schizoaffective disorder, a psychotic disorder, or psychosis not otherwise specified.
The notice describes how both patients were involuntarily admitted under the Mental Health Act and then repeatedly administered “forced psychiatric treatment” in the form of medication via injection and, in the case of MacLaren, electroconvulsive therapy.
Melanie Benard is a lawyer and board member with the Council of Canadians with Disabilities, a third plaintiff in the case. “In all other jurisdictions in Canada, adults are presumed to be capable of making treatment decisions,” she said in a telephone interview. “What we see in B.C.’s outdated law is that there is no assessment of the patient’s capacity. Involuntary psychiatric patients are just presumed to be incapable of consenting and health-care providers can impose treatment at will. That violates their right to liberty and equality.”
The plaintiffs are represented by the Community Legal Assistance Society. One of its lawyers, Laura Johnston, told the Straight the goal is to see mental-health care approached like treatment of a physical ailment.
She emphasized the case will not affect emergency mental-health care. Police will still have the authority to apprehend individuals experiencing a mental-health crisis who are deemed an immediate threat to themselves or others. (For example, an individual with schizophrenia wielding knife on a street corner could still be taken into custody by police, transported to hospital, and administered a tranquilizer, the same way paramedics would respond to an unconscious cyclist hit by a car, take them to an emergency department, and immediately see doctors operate to repair a punctured lung.) The legal challenge is about treatment, Johnston stressed.
“It is a question of what happens once you are stabilized, after those first couple hours,” she explained.
The B.C. Ministry of Health and Vancouver Coastal Health both did not grant interviews.
Jonny Morris, the Canadian Mental Health Association’s director of public policy for B.C., told the Straight it is too early for his organization to take a position on the case. But he noted consent and decision-making authority have been “long-standing issues”.
“Especially when it comes to involuntary treatment, we would say, where appropriate and where safe, involving families effectively is very important,” Morris added.