View source for Mental Health Theory and Approach (14:III)

{{REVIEWED LSLAP | date= August 18, 2021}}
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Admission to a mental health facility can significantly impact an individual’s ability to exercise their rights. Textbooks have advocated for a functional approach to mental health law, encouraging courts to consider solely how the disability may relate to the specific issue brought before them. Incapacity in one area does not necessarily mean incapacity in all areas. Most mental health legislation, however, is over-inclusive, and therefore impairs the rights  of mentally ill persons in areas where they might have the mental capacity to act for themselves. The common-law tests for capacity can be found in Chapter 15: Adult Guardianship.

Section 15(1) of the ''Canadian Charter of Rights and Freedoms'' [''Charter''] has made it easier to preserve the rights of those affected by mental health law. While most discriminatory legislation in BC remains unchallenged, the ''MHA'' "deemed consent provisions" and the ''HCCFA'' and ''Representation Agreement Act'' "substitute decision making" provisions, was challenged as unconstitutional at the BC Supreme Court (see [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1753/2018bcsc1753.html?autocompleteStr=maclaren%20v%20british&autocompletePos=1 ''MacLaren v British Columbia (Attorney General)'', 2018 BCSC 1753]). This litigation isn’t expected to be resolved for quite some time, however. The Attorney General of BC raised the issue of public interest standing in the above case which resulted in the case being dismissed.  This decision was appealed to the BC Court of Appeal and the appeal was allowed on the issue of public interest standing in favour of the Council of Canadians with Disabilities (see [https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca241/2020bcca241.html?autocompleteStr=council%20of%20canadians%20with%20disabilities&autocompletePos=2 ''Council of Canadians with Disabilities v British Columbia (Attorney General)'', 2020 BCCA 241]).  The Attorney General of BC applied for leave to appeal to the Supreme Court of Canada, and the Supreme Court of Canada heard the appeal January 13, 2022. The Supreme Court of Canada released its decision on June 23, 2022. The SCC has held that the Council of Canadians with Disabilities has the standing to challenge the constitutionality of the legislation (see [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19424/index.do#:~:text=The%20claim%20asserts%20that%20the,of%20a%20substitute%20decision%E2%80%91maker. "British Columbia (Attorney General) v Council of Canadians with Disabilities" 2022 SCC 27)]. However, this litigation is still ongoing and will take time to resolve.

All ''Charter'' challenges have been directed towards either the ''MHA'', the ''HCCFA'', or the ''Criminal Code''. The Community Legal Assistance Society may be able to assist with serious ''Charter'' challenges, including test litigation.


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