Difference between revisions of "Mental Health Theory and Approach (14:III)"

Admission to a mental health facility can seriously affect an individual’s rights. Textbooks have advocated a “functional” approach to mental health law, encouraging courts to consider only 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.  

Although governed by statute in areas concerning mental incapacity, courts still have the ability to exercise the ''parens patriae'' power, which allows the court to act in the best interests of the individual where gaps in the law exist (see ''E. (Mrs.) v. Eve'', [1986] 2 S.C.R. 388). However, this power is not often exercised. 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. However, most discriminatory legislation in BC remains unchallenged. All ''Charter'' challenges have been directed towards either the MHA or the ''Criminal Code''. The Community Legal Assistance Society may be able to assist with serious ''Charter'' challenges, including test litigation.