Difference between revisions of "Mental Health Law and Legal Rights (14:IV)"
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== G. Human Rights Legislation == | == G. Human Rights Legislation == | ||
Under both provincial and federal human rights legislation, it is illegal to discriminate | Under both provincial and federal human rights legislation, it is illegal to discriminate against a person in the protected areas of housing/tenancy, employment, or services customarily available to the public on the basis of mental illness. For information on launching a human rights complaint, see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]]. | ||
== H. Civil Responsibility == | == H. Civil Responsibility == | ||
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In general, mental incompetence or disability is not a 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 they were doing may relieve them of liability. A defendant lacking the ability to control their 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 general, mental incompetence or disability is not a 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 they were doing may relieve them of liability. A defendant lacking the ability to control their 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 | In civil suits, a guardian ''ad litem'' may be appointed with permission of the court (can be petitioned by a lawyer) 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''. The guardian ''ad litem'' could be a friend or a relative of the person, an organization, or another individual chosen and appointed by the court. | ||
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. | 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. | ||
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== I. Immigration and Citizenship == | == I. Immigration and Citizenship == | ||
Section 38 of the [https://laws.justice.gc.ca/eng/acts/i-2.5/ ''Immigration and Refugee Protection Act''] [''IRPA''] deals with inadmissibility on health-related 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 | Section 38 of the [https://laws.justice.gc.ca/eng/acts/i-2.5/ ''Immigration and Refugee Protection Act''] [''IRPA''] deals with inadmissibility on health-related 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 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) a member of the family class and the spouse, a common law spouse, or a child of a sponsor; (b) a refugee or a person in similar circumstances; (c) a protected person, or; (d) where prescribed by regulation, one of their family members, that person will be exempted from the rule under section 38(1)(c). | However, s 38(2) lists certain exceptions. If a person may be classified as (a) a member of the family class and the spouse, a common law spouse, or a child of a sponsor; (b) a refugee or a person in similar circumstances; (c) a protected person, or; (d) where prescribed by regulation, one of their family members, that person will be exempted from the rule under section 38(1)(c). | ||
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Sections 7 (the right to liberty), 9 (the right to protection against arbitrary detention) and 15 (the equality provision) of the ''Charter'' are particularly critical for protecting the rights of the mentally ill. The legal rights protection provisions may also be applicable, including section 12, which concerns cruel and unusual punishment. | Sections 7 (the right to liberty), 9 (the right to protection against arbitrary detention) and 15 (the equality provision) of the ''Charter'' are particularly critical for protecting the rights of the mentally ill. The legal rights protection provisions may also be applicable, including section 12, which concerns cruel and unusual punishment. | ||
The following decisions reflect the way that Charter rights have been considered when they conflict with provincial legislation regarding mental health. | |||
[https://www.canlii.org/en/on/onca/doc/1991/1991canlii2728/1991canlii2728.html?resultIndex=1 ''Fleming v Reid'', (1991) OR (2d) 169] at paras 52-59 addressed the impact of section 7 on provisions of Ontario’s mental health legislation. Mentally competent involuntary patients refused treatment despite their doctors’ opinion that treatment would be in their best interests. The impugned provision of Ontario’s ''Mental Health Act'', RSO 1980, c 262 allowed a Review Board to override treatment refusals issued by a substitute consent-giver based on the patient’s prior competent wishes. The court held that this provision violated the right to security of the person and was not in accordance with the principles of fundamental justice. However, the disposition of this case has not influenced the application of BC's mental health legislation to date. | [https://www.canlii.org/en/on/onca/doc/1991/1991canlii2728/1991canlii2728.html?resultIndex=1 ''Fleming v Reid'', (1991) OR (2d) 169] at paras 52-59 addressed the impact of section 7 on provisions of Ontario’s mental health legislation. Mentally competent involuntary patients refused treatment despite their doctors’ opinion that treatment would be in their best interests. The impugned provision of Ontario’s ''Mental Health Act'', RSO 1980, c 262 allowed a Review Board to override treatment refusals issued by a substitute consent-giver based on the patient’s prior competent wishes. The court held that this provision violated the right to security of the person and was not in accordance with the principles of fundamental justice. However, the disposition of this case has not influenced the application of BC's mental health legislation to date. | ||
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In [https://www.canlii.org/en/ca/scc/doc/2006/2006scc7/2006scc7.html?resultIndex=1 ''Mazzei v British Columbia (Director of Adult Forensic Psychiatric)'', 2006 SCC 7] at paras 46-47 [''Mazzei''], it was decided that the Review Boards under the Part XX.1 Mental Disorder provisions of the ''Criminal Code of Canada'' have the power to issue binding orders to parties other than the accused. This power can be exercised on the director of a hospital who is party to the proceedings; although the Review Board cannot dictate a specific treatment, it can impose conditions regarding treatment. This power was granted to ensure that treatments are culturally appropriate. In ''Mazzei'', conditions were imposed regarding drug and alcohol rehabilitation to ensure that the process was appropriately adjusted to the individual’s First Nations’ ancestry. | In [https://www.canlii.org/en/ca/scc/doc/2006/2006scc7/2006scc7.html?resultIndex=1 ''Mazzei v British Columbia (Director of Adult Forensic Psychiatric)'', 2006 SCC 7] at paras 46-47 [''Mazzei''], it was decided that the Review Boards under the Part XX.1 Mental Disorder provisions of the ''Criminal Code of Canada'' have the power to issue binding orders to parties other than the accused. This power can be exercised on the director of a hospital who is party to the proceedings; although the Review Board cannot dictate a specific treatment, it can impose conditions regarding treatment. This power was granted to ensure that treatments are culturally appropriate. In ''Mazzei'', conditions were imposed regarding drug and alcohol rehabilitation to ensure that the process was appropriately adjusted to the individual’s First Nations’ ancestry. | ||
A more recent Supreme Court decision, [https://www.canlii.org/en/ca/scc/doc/2010/2010scc22/2010scc22.html?resultIndex=1 ''R v Conway'', 2010 SCC 22] at para 78 [''Conway''] responded to the issue of whether the Ontario Review Board (ORB) under the Mental Disorder Provisions of the ''Criminal Code'' has the authority to grant remedies under section 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. He argued that his treatment and detention violated his ''Charter'' rights, and therefore 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 section 24(1), the ORB is a “court of competent jurisdiction”, but that 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, including the ''Criminal Code of Canada', Part XX.1 (Mental disorder provisions)'' provincial Review Boards. However, this decision limits the scope of available remedies under section 24(1) to those that have been specifically granted to a given body by the legislature. In ''Conway'', the Review Board could make a determination that the provision was unconstitutional, but did not have the authority to strike it down. | A more recent Supreme Court decision, [https://www.canlii.org/en/ca/scc/doc/2010/2010scc22/2010scc22.html?resultIndex=1 ''R v Conway'', 2010 SCC 22] at para 78 [''Conway''] responded to the issue of whether the Ontario Review Board (ORB) under the Mental Disorder Provisions of the ''Criminal Code'' has the authority to grant remedies under section 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. He argued that his treatment and detention violated his ''Charter'' rights, and therefore 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 section 24(1), the ORB is a “court of competent jurisdiction”, but that 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, including the ''Criminal Code of Canada', Part XX.1 (Mental disorder provisions)'' provincial Review Boards, which includes the British Columbia Review Board (BCRB). However, this decision limits the scope of available remedies under section 24(1) to those that have been specifically granted to a given body by the legislature. In ''Conway'', the Review Board could make a determination that the provision was unconstitutional, but did not have the authority to strike it down. | ||
A case in which CLAS acted as an intervener--([https://www.canlii.org/en/ca/scc/doc/2012/2012scc45/2012scc45.html?resultIndex=1 ''Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society'', (2012) 2 SCR 524] at paras 73-74) 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 by enabling patients that are detained in mental health facilities to bring ''Charter'' challenges as a group, rather than being forced to do so on an individual basis. Additionally, organizations can begin an action on behalf of a group of vulnerable people if there is no other way for the issue to be brought before a court. | A case in which CLAS acted as an intervener--([https://www.canlii.org/en/ca/scc/doc/2012/2012scc45/2012scc45.html?resultIndex=1 ''Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society'', (2012) 2 SCR 524] at paras 73-74) 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 by enabling patients that are detained in mental health facilities to bring ''Charter'' challenges as a group, rather than being forced to do so on an individual basis. Additionally, organizations can begin an action on behalf of a group of vulnerable people if there is no other way for the issue to be brought before a court. | ||
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== K. Legal Rights of Those in Group Homes == | == 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 | Throughout the greater Vancouver area, there are many “group homes” run by and/or for mentally ill persons who do not require confinement in a provincial mental health facility. Additionally, "Supportive Apartments" are a new tool that the provincial 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 ''Residential Tenancy Act'', in that they may or may not be covered on a case by case basis. Because there is no definitive answer at this time, individuals in group homes with tenancy issues should contact CLAS or seek other legal assistance. | These types of homes have some interesting interactions with the ''Residential Tenancy Act'', in that they may or may not be covered on a case by case basis. Because there is no definitive answer at this time, individuals in group homes with tenancy issues should contact CLAS or seek other legal assistance. | ||