Mental Health Law and Legal Rights (14:IV)

A. Income Assistance

Mentally ill persons may be eligible for benefits under the Persons with Disabilities (PWD) or Persons with Persistent and Multiple Barriers to Employment (PPMB) designations. Qualification requirements are strict, but decisions concerning eligibility can be negotiated with the Ministry of Employment and Income Assistance or appealed. Disability Alliance BC assists with applications and appeals (for further details, see Chapter 21: Welfare Law). There may be strict deadlines for these applications so it is important to not delay in these cases.

B. Employment/Disability Income

If a person cannot work because of mental health issues, the person may be entitled to employment insurance, disability benefits, or CPP disability benefits, or WCB benefits if the mental illness is work related. For information on CPP disability benefits, see Section IV.D: Canada Pension Plan, below. Be aware that there are strict time limits involved when applying for these benefits.

If a person is hospitalized in a psychiatric facility because of an injury at work, he or she may be eligible for WCB benefits. Please contact the Workers Advisory Group through CLAS for more information, or refer to Chapter 7, Workers' Compensation.

C. Employment Insurance

Individuals either voluntarily or involuntarily admitted to a psychiatric facility may still be eligible to collect Employment Insurance benefits. However, the Employment Insurance Act, SC 1996, c 23 is a very complicated piece of legislation, detailing numerous requirements to qualify for benefits (e.g. number of hours worked, previous claims, unemployment rate, etc.). If a person is denied benefits, it is best to consult the Act directly as a first step or to contact a lawyer knowledgeable in the issues (e.g. CLAS). Be aware that there may be strict timelines in applying for benefits or appealing a denial of benefits. For more information, please consult Chapter 8 Employment Insurance.

D. Canada Pension Plan

Long-term patients may apply for disability pensions. A claim takes four or five months to process. Hospitalization does not affect a person’s right to collect a pension and it is possible to receive CPP benefits for periods of time when an individual was hospitalized. The British Columbia Coalition of Persons with Disabilities assists people with these applications if they reside in the community. For people who are hospitalized, contact the hospital social worker to assist with these applications as strict time limits may apply.

E. Driving

A mental disorder does not automatically disqualify a person from driving. The Superintendent of Motor Vehicles or a person authorized by the Superintendent does have the discretion to deny a licence to those deemed “unfit” under s 92 of the Motor Vehicle Act, RSBC 1996, c 318. This decision is based on The 2010 BC Guide in Determining Fitness to Drive. Chapter 6 of that guide provides assessment policies and procedures. Assessments of cognitive function can be requested (see section 6.6 of the Guide). Chapter 19 of the Guide discusses Psychiatric Disorders while Chapter 27 discusses cognitive impairment (including dementia). Appeals can be made to the Superintendent, but only where medical reports were not properly interpreted, where proper allowances were not made for surgical procedures that the applicant was undergoing, or where the physician has not properly reported the patient’s medical condition. An appeal may also require that the appellant undergo examination and/or testing.

F. The Right to Vote

Both voluntary and involuntary patients in mental health facilities have the right to vote. This has been the case since Canada (Canadian Disability Rights Council) v Canada (1988), 3 F.C 622, where it was decided that a person is not disqualified from voting on the basis that a committee has been appointed for him or her. Polling stations are normally set up at long-term psychiatric care facilities; because enumeration also takes place at the facility, patients must vote in the riding where the hospital is located.

G. Human Rights Legislation

Under both BC and federal human rights legislation, it is contrary to human rights to discriminate with regard to housing, employment or services available to the public against a person who is mentally ill. For information on launching a human rights complaint, see Chapter 6: Human Rights.

H. Civil Responsibility

In general, mental incompetence or disability is no defence to an action for intentional tort or negligence. However, where a certain amount of intent or malice is required for liability, the fact that the defendant lacked full capacity to understand what he or she was doing may relieve him or her of liability.

A defendant who lacks the ability to control his or her actions will not be liable. Involuntary actions do not incur liability.

Anyone responsible for the care of a mentally ill person may be held responsible if the plaintiff proves a failure to take proper care supervising the person.

In civil suits, a guardian ad litem may be appointed to start or defend an action where a mentally ill person is a party and lacks the capacity to commence or defend that action. A person involuntarily detained under the MHA appears to meet the definition in the BC Supreme Court Rules of Court of a person under a legal disability for filing or defending a court action. Therefore, the person would need to proceed through a guardian ad litem.

Additionally, any person found not criminally responsible by reason of a mental disorder under the Criminal Code may not be liable for damages as a result of the offence.

I. Immigration and Citizenship

Section 38 of the Immigration and Refugee Protection Act deals with inadmissibility on health grounds. Pursuant to s 38(1)(c), foreign nationals will be inadmissible if they “might reasonably be expected to cause excessive demand on health or social services.” This rule could potentially present a bar to admission for individuals determined to be developmentally delayed or those with a history of mental illness. However, s 38(2) lists certain exceptions. If a person may be classified as: a member of the family class and the spouse, common law spouse, or child of a sponsor; a refugee or a person in similar circumstances; a protected person, or; where prescribed by regulation, one of their family members, that person will be exempted from the rule under s 38(1)(c).

J. The Charter

Sections 7 (the right to liberty), 9 (the right to protection against arbitrary detention) and 15 (the equality provision) are particularly relevant to protecting the rights of the mentally ill. Rights protection provisions may also be applicable, as well as s 12, which concerns cruel and unusual punishment.

Fleming v Reid (1991), 82 DLR (4th) 298 (Ont CA) dealt with the impact of s 7 on provisions of Ontario’s mental health legislation. Mentally competent involuntary patients refused treatment despite their doctors’ opinions that it would be in their best interests. The Court held that the section of Ontario’s Mental Health Act, RSO 1980, c 262 that allowed a review board to override the refusal for treatment made by a substitute consent-giver of an involuntary patient based on the patient’s prior competent wishes violated the right to security of the person and was not in accordance with the principles of fundamental justice. However, the effect this case will have on BC’s legislation is yet to be determined. (See also Starson v Swayze, 2003 SCC 32.)

In Mazzei v British Columbia (Director of Adult Forensic Psychiatric), 2006 SCC 572, it was decided that review boards have the power to issue binding orders to parties other than the accused. This power is usually used on the director of a hospital, party to the proceedings, to whom the review board cannot prescribe a specific treatment, but can impose conditions regarding treatment. It is obligated to ensure that treatments are culturally appropriate. In the Mazzei case, there was conditions for drug and alcohol rehabilitation appropriate for his first nations ancestry.

A recent Supreme Court decision, R. v Conway, 2010 SCC 22 (Conway) responds to the issue of whether or not the Ontario Review Board (ORB) has the authority to grant remedies under s 24(1) of the Charter. The challenge was brought by Paul Conway, an individual found not responsible by reason of a mental disorder in 1983, who argued that his treatment and detention violated his Charter Rights and entitled him to an absolute discharge. The Supreme Court developed a test to determine whether an administrative tribunal is authorized to grant Charter remedies. The Supreme Court ruled that pursuant to s 24(1), the ORB is a “court of competent jurisdiction” but an absolute discharge was not a remedy that could be granted by the ORB under the particular circumstances. Ultimately, the Conway decision affirms the application of the Charter to administrative tribunals but limits the scope of available remedies under s 24(1) to those that have been specifically granted by the legislature.

A recent case in which CLAS acted as an intervener (Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society (2012) 2 SCR 524) opened the door for groups of individuals to bring Charter challenges. In this case sex workers were granted public standing as a group to bring Charter challenges. This decision impacts mentally ill people as well. It means that in the future patients that are detained in mental health facilities could bring Charter challenges as a group, rather than on an individual basis.

K. Legal Rights of Those in Group Homes

Throughout the greater Vancouver area there are many “group homes” run by and/or for mentally ill persons who do not need to be confined in a provincial mental health facility. Additionally, "Supportive Apartments" are a new tool government has been using. These homes, run by groups such as COAST and the Motivation, Power, and Achievement Society (MPA), are governed by the Community Care and Assisted Living Act, SBC 2002, c 75. Foster homes and group homes of the provincial government fall under different Acts: the Child, Family and Community Service Act, RSBC 1996, c 46 and the Hospital Act, RSBC 1996, c 200.

These types of homes have some interesting interactions with the Tenancy Act, in that they may or may not be covered on a case by case basis. There is no definitive answer at this point - individuals in group homes with tenancy issues can contact CLAS or seek other legal help.

Municipalities often place restrictions on the location of group homes. A Winnipeg bylaw requiring a minimum distance between group homes was struck down for violating s 15 of the Charter (Alcoholism Foundation of Manitoba v The City of Winnipeg (1990), 69 DLR (4th) 697 (Man. C.A.)).

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