Introduction to Mental Health and Capacity (14:I): Difference between revisions

Latest revision as of 07:19, 22 September 2025

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 20, 2025.

This chapter provides a general overview of the rights of persons with mental illness. It applies to patients both inside and outside mental health facilities. This discussion of mental health law is intended to provide the reader with a general framework for their own information or as a basis for further research. An excellent resource for further information or referrals is the Community Legal Assistance Society (CLAS). CLAS operates a mental health law program that represents individuals at hearings before the BC Criminal Code Review Board under Part XX.1 of the Mental Disorder provisions of the Criminal Code of Canada, and the BC Mental Health Review Board under the Mental Health Act, RSBC 1996, c 288 [MHA]. CLAS also provides legal information and identifies potential test cases. See Chapter 23: Referrals for CLAS' contact information.

This chapter engages with the legal issues that may arise due to a person’s mental disorder. “Mental disorder”, refers to the range of illnesses and disorders dealt with by psychiatry. It is important to keep in mind that mental illness is not the same as mental incapacity. For legal matters concerning capacity, such as capacity to enter into a contract, make a will, or create a representation agreement, please consult Chapter 15: Guardianship.

The most important statute for the purposes of this chapter is the MHA. Other pertinent legislation is listed in this chapter under Part II: Governing Legislation. If you have issues regarding persons in conflict with the law who show signs of psychiatric disturbance, you may also need to review the Forensic Psychiatry Act, RSBC 1996, c 156 [FPA]. This legislation governs the forensic psychiatry services which assist with court-ordered psychiatric assessments, including fitness to stand trial or “not criminally responsible on account of mental illness” designations.

A. Mental Health, Capacity, and the Law: An Overview

There are three areas of concern at the intersection of law, mental health, and capacity: (1) persons who suffer or have suffered from psychiatric disorders, (2) persons who have developmental disabilities, and (3) persons who have diminished capacity. These issues are considered separately in this chapter or in Chapter 15: Guardianship. However, it is important to bear in mind that a client may experience several mental health challenges that overlap and blur the lines between these categories. For example, a person with both diminished cognitive capacity due to Alzheimer’s may simultaneously have schizophrenia disorder.

1. Psychiatric Disorders

The first category encompasses people who may not have a developmental disability or diminished capacity, but who suffer from a psychiatric disorder. Psychiatric disorders can range from mild delusions or mood disorders, to pervasive and severe psychosis. These individuals are most likely to fall under the provisions of the MHA. The legal issues faced by this group are the central focus of Chapter 14: Mental Health Law. Therefore, in this chapter, it is important to note that the term “mental disorder” refers to psychiatric illness and not to those with developmental delays or diminished capacity.

2. Developmental Disabilities

This second category refers to people who are developmentally delayed or intellectually impaired due to genetic factors, birth trauma, or injury early in life, and who may or may not be able to live independently within the community. These individuals may not have the capacity to make legal decisions or treatment decisions. Family members are encouraged to consult Chapter 15: Guardianship to plan for the legal and financial care of these individuals. To plan for their financial well-being, their family members may wish to consult the Chapter 15 section “Overview of Incapacity—Section D. Wills and Estates.” However, developmental delays are not covered in depth in the LSLAP Manual. For further information regarding supports and resources for persons with developmental disabilities, please visit the following Government of British Columbia websites:

Adults with Developmental Disabilities

https://www2.gov.bc.ca/gov/content/family-social-supports/services-for-people-with-disabilities

Transition Planning for Youth and Young Adults

https://www2.gov.bc.ca/gov/content/family-social-supports/services-for people-with-disabilities/transition-planning-for-youth-young-adults

Children & Youth with Support Needs

https://www2.gov.bc.ca/gov/content/health/managing-your-health/child-behaviour-development/support-needs

3. Cognitive Incapacity

The third category includes people who, due to disease or trauma, have become mentally incapable. It is important to note that the threshold for capacity may differ depending on the legal matter at stake. For example, there may be a different level of capacity required for the decision to appoint a Representative in a Representation Agreement than there would be for the decision to draft a will. Family members and caregivers for this group would be better served by the information in Chapter 15: Guardianship.

@@ Line 1: / Line 1: @@
+{{REVIEWED LSLAP | date= August 20, 2025}}
 {{LSLAP Manual TOC|expanded = mentalhealth}}
-=Introduction=
+This chapter provides a general overview of the rights of persons with mental illness. It applies to patients both inside and outside mental health facilities. This discussion of mental health law is intended to provide the reader with a general framework for their own information or as a basis for further research. An excellent resource for further information or referrals is the Community Legal Assistance Society (CLAS). CLAS operates a mental health law program that represents individuals at hearings before the BC ''Criminal Code'' Review Board under Part XX.1 of the Mental Disorder provisions of the ''Criminal Code'' of Canada, and the BC Mental Health Review Board under the ''Mental Health Act'', RSBC 1996, c 288 [''MHA'']. CLAS also provides legal information and identifies potential test cases. See [[General_Legal_Help_Resources_(23:I)|'''Chapter 23: Referrals''']] for CLAS' contact information.
-This chapter provides a very general overview of the rights of persons with mental illnesses, either as patients inside a mental health facility or as persons outside such a facility. The discussion of mental health law is intended to provide the reader with a general framework to use for their own information or as a basis for further research. An excellent resource for further information or referrals is the Community Legal Assistance Society (CLAS). CLAS runs a mental health law program that represents individuals at hearings before the BC Criminal Code Review Board, under Part XX.1 of the Mental Disorder provisions of the Criminal Code of Canada and the BC Mental Health Review Board under the MHA.  BC Review Board Hearings, and BC Mental Health Act tribunal hearings.  CLAS also provides legal information and identifies potential test cases. See Chapter 23: Referrals for CLAS contact information.
+This chapter engages with the legal issues that may arise due to a person’s mental disorder.  “Mental disorder”, refers to the range of illnesses and disorders dealt with by psychiatry. It is important to keep in mind that mental illness is not the same as mental incapacity. For legal matters concerning capacity, such as capacity to enter into a contract, make a will, or create a representation agreement, please consult [[Introduction to Adult Guardianship and Substitute Decision-Making (15:I)|'''Chapter 15: Guardianship''']].
-This chapter deals with the legal issues that may arise due to a person’s mental disorder.  By ‘mental disorder’, we are referring to the range of illnesses and disorders dealt with by psychiatry. It is important to keep in mind that mental illness is not the same as mental incapacity.  For legal matters concerning capacity, such as the capacity to enter a contract, make a will, or create a representation agreement, please consult [[Introduction to Adult Guardianship (15:I) | Chapter 15: Guardianship]].
+The most important statute for the purposes of this chapter is the ''MHA''.  Other pertinent legislation is listed in this chapter under [[Governing Legislation and Resources for Mental Health (14:II)|'''Part II: Governing Legislation''']]. If you have issues regarding persons in conflict with the law who show signs of psychiatric disturbance, you may also need to review the ''Forensic Psychiatry Act'', RSBC 1996, c 156 [''FPA'']. This legislation governs the forensic psychiatry services which assist with court-ordered psychiatric assessments, including fitness to stand trial or “not criminally responsible on account of mental illness” designations.
-For purposes of this Chapter, the most important statute is the ''Mental Health Act'', RSBC 1996, c 288 [MHA]. Other legislation which may have relevance is listed Part II of this chapter, “Governing Legislation and Resources”. If you have an issue with respect to a person who has come into conflict with the law and shows signs of psychiatric disturbance, you may also need to review the ''Forensic Psychiatry Act'', RSBC 1996, c 156 [FPA]. This act governs the forensic psychiatry services, which assists with court ordered psychological examinations, including fitness to stand trial or “Not Criminally Responsible” designation.
+== A. Mental Health, Capacity, and the Law: An Overview ==
-==Mental Health, Capacity, And the Law: An overview==
+There are three areas of concern at the intersection of law, mental health, and capacity: (1) persons who suffer or have suffered from psychiatric disorders, (2) persons who have developmental disabilities, and (3) persons who have diminished capacity. These issues are considered separately in this chapter or in [[Introduction to Adult Guardianship and Substitute Decision-Making (15:I)|'''Chapter 15: Guardianship''']]. However, it is important to bear in mind that a client may experience several mental health challenges that overlap and blur the lines between these categories. For example, a person with both diminished cognitive capacity due to Alzheimer’s may simultaneously have schizophrenia disorder.
-There are three distinct areas of concern in the intersection between the law, mental health, and capacity: clients who have developmental  delays, clients who have diminished capacity, and clients who suffer or have suffered from psychiatric disorders. These issues are separated into  three subcategories below to direct you to the pertinent chapter – some are covered in [[{{PAGENAME}} | Chapter 14: Mental Health Law]], while others are covered in [[Introduction to Adult Guardianship (15:I) | Chapter 15: Guardianship]]. However, it is important to keep in mind that a client may experience several mental health challenges that overlap and blur the categories. For example, a client may have diminished cognitive capacity due to Alzheimer’s in addition to an underlying schizophrenia disorder they manage with medication.
+=== 1. Psychiatric Disorders ===
+The first category encompasses people who may not have a developmental disability or diminished capacity, but who suffer from a psychiatric disorder.  Psychiatric disorders can range from mild delusions or mood disorders, to pervasive and severe psychosis. These individuals are most likely to fall under the provisions of the ''MHA''.  The legal issues faced by this group are the central focus of [[Introduction to Mental Health and Capacity (14:I)|'''Chapter 14: Mental Health Law''']]. Therefore, in this chapter, it is important to note that the term “mental disorder” refers to psychiatric illness and not to those with developmental delays or diminished capacity.
+=== 2. Developmental Disabilities ===
-=== 1. Psychiatric Disorders ===
+This second category refers to people who are developmentally delayed or intellectually impaired due to genetic factors, birth trauma, or injury early in life, and who may or may not be able to live independently within the community.  These individuals may not have the capacity to make legal decisions or treatment decisions. Family members are encouraged to consult [[Introduction to Adult Guardianship and Substitute Decision-Making (15:I)|'''Chapter 15: Guardianship''']] to plan for the legal and financial care of these individuals. To plan for their financial well-being, their family members may wish to consult the [[Introduction to Adult Guardianship and Substitute Decision-Making (15:I)|'''Chapter 15''']] section “Overview of Incapacity—Section D. Wills and Estates.” However, developmental delays are not covered in depth in the LSLAP Manual. For further information regarding supports and resources for persons with developmental disabilities, please visit the following Government of British Columbia websites:
-The third group are those people who may not have a developmental delay or diminished capacity but who suffer from psychiatric disorders.   These can range from mild delusions, to mood disorders, to pervasive and severe psychosis. These people are the ones most likely to fall under the provisions of the ''Mental Health Act''. The legal issues faced by this group are the main focus of Chapter 14: Mental Health Law. Therefore, in Chapter 14 it is important to note that the term “mental disorder” refers to psychiatric illness and not to those with developmental delays or diminished capacity.
+*Adults with Developmental Disabilities
+https://www2.gov.bc.ca/gov/content/family-social-supports/services-for-people-with-disabilities
-=== 2. Developmental Delays ===
+*Transition Planning for Youth and Young Adults
+https://www2.gov.bc.ca/gov/content/family-social-supports/services-for people-with-disabilities/transition-planning-for-youth-young-adults
-This category refers to people who are developmentally delayed or “intellectually impaired” due to genetic factors, birth trauma, or injury early in life, and who may or may not be able to live independently within the community. Many of these people function at the level of a minor and therefore may not have legal capacity. Their family members should be encouraged to use the planning tools found in [[Introduction to Adult Guardianship (15:I) | Chapter 15: Guardianship]] to make provisions for the care of their person. To plan for their financial well-being, their family members may wish to consult the Chapter 15 section “[[Overview of Adult Guardianship and Incapacity (15:III)#D. Drafting A Will | Overview of Incapacity – Section D. Wills and Estates]].” However, developmental delays are not covered in-depth in the LSLAP Manual. The [http://www.mcf.gov.bc.ca/spec_needs/ Ministry of Children and Family Development website] provides basic background information in this area and may be a starting point for further research.
+*Children & Youth with Support Needs
+https://www2.gov.bc.ca/gov/content/health/managing-your-health/child-behaviour-development/support-needs
-=== 3. Diminished Capacity ===
+=== 3. Cognitive Incapacity ===
-The second area of concern affects those people who, due to old age, disease, or trauma, become mentally incapable. It is important to note that the threshold for capacity may differ depending on the legal matter at stake – for example, there may be a different level of capacity needed for the decision to appoint a representative as opposed to the decision to draft a will. Family members and caregivers for this group would most likely be served by the information in [[Introduction to Adult Guardianship (15:I) | Chapter 15: Guardianship]].
+The third category includes people who, due to disease or trauma, have become mentally incapable. It is important to note that the threshold for capacity may differ depending on the legal matter at stake. For example, there may be a different level of capacity required for the decision to appoint a Representative in a Representation Agreement than there would be for the decision to draft a will. Family members and caregivers for this group would be better served by the information in [[Introduction to Adult Guardianship (15:I) | '''Chapter 15: Guardianship''']].
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