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Difference between revisions of "Mental Health Law and Legal Rights (14:IV)"
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Mental Health Law and Legal Rights (14:IV) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 10, 2023}} | ||
{{LSLAP Manual TOC|expanded = mentalhealth}} | {{LSLAP Manual TOC|expanded = mentalhealth}} | ||
== A. Income Assistance == | == 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, and, if need be, appealed. Generally, a doctor must fill out a specific form indicating that the person qualifies. Disability Alliance BC assists with applications and appeals (for further details, see [[Introduction to Welfare (21:I) | Chapter 21: Welfare Law]]). There may be strict deadlines for these applications, so it is important to avoid delay in these cases. | 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, and, if need be, appealed. Generally, a doctor must fill out a specific form indicating that the person qualifies. Disability Alliance BC assists with applications and appeals (for further details, see [[Introduction to Welfare (21:I) | '''Chapter 21: Welfare Law''']]). There may be strict deadlines for these applications, so it is important to avoid delay in these cases. | ||
== B. Employment/Disability Income == | == 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 [[{{PAGENAME}}#D. Canada Pension Plan | Section IV.D: Canada Pension Plan]], below. Please be advised that there are strict time limits involved when applying for these benefits. | 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 [[{{PAGENAME}}#D. Canada Pension Plan | '''Section IV.D: Canada Pension Plan''']], below. Please be advised 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, they may be eligible for WCB benefits. Please contact the Workers Advisory Group through CLAS for more information, or refer to [[Introduction to Workers' Compensation (7:I) | Chapter 7: Workers' Compensation]]. | If a person is hospitalized in a psychiatric facility because of an injury at work, they may be eligible for WCB benefits. Please contact the Workers Advisory Group through CLAS for more information, or refer to [[Introduction to Workers' Compensation (7:I) | '''Chapter 7: Workers' Compensation''']]. | ||
== C. Employment Insurance == | == C. Employment Insurance == | ||
Individuals who are 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 complex 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 a lawyer with specific expertise in these areas (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 [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]]. | Individuals who are 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 complex 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 a lawyer with specific expertise in these areas (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 [[Introduction to Employment Insurance (8:I) | '''Chapter 8: Employment Insurance''']]. | ||
== D. Canada Pension Plan == | == D. Canada Pension Plan == | ||
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== E. Driving == | == 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—has the discretion to deny licences to those deemed “unfit” under section 92 of the ''Motor Vehicle Act'', RSBC 1996, c 318. This decision is based on the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards with BC Specific Guidelines ( | A mental disorder does not automatically disqualify a person from driving. The Superintendent of Motor Vehicles—or a person authorized by the Superintendent—has the discretion to deny licences to those deemed “unfit” under section 92 of the ''Motor Vehicle Act'', RSBC 1996, c 318. This decision is based on the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards with BC Specific Guidelines (the guidelines could be accessed at https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc/medical-fitness/medical-prof/med-standards). Each section describes the medical condition(s) under evaluation, the potential effect of the condition(s) on driving ability, and guidelines for assessing driving ability. | ||
Chapter 6 of the Guidelines discusses cognitive impairment (including dementia), while Chapter 14 addresses psychiatric disorders. The national standard allows those with psychiatric disorders to hold a license if their condition is stable, if they possess the insight to stop driving if their condition worsens, and if the faculties required to drive safely are not impaired. The BC Guidelines add that RoadSafetyBC can request a Driver’s Medical Examination Report and additional medical information from the individual’s doctor or mental health team. The Guidelines also set out the conditions for maintaining a license, for reassessment if a license is lost, and the information that will be sought from health care providers during an assessment. | Chapter 6 of the Guidelines discusses cognitive impairment (including dementia), while Chapter 14 addresses psychiatric disorders. The national standard allows those with psychiatric disorders to hold a license if their condition is stable, if they possess the insight to stop driving if their condition worsens, and if the faculties required to drive safely are not impaired. The BC Guidelines add that RoadSafetyBC can request a Driver’s Medical Examination Report and additional medical information from the individual’s doctor or mental health team. The Guidelines also set out the conditions for maintaining a license, for reassessment if a license is lost, and the information that will be sought from health care providers during an assessment. | ||
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== F. The Right to Vote == | == 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 them. 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. | Both voluntary and involuntary patients in mental health facilities have the right to vote. This has been the case since ''[https://canlii.ca/t/jqrtx 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 them. 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 == | == G. Human Rights Legislation == | ||
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]]. | 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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This definitions, and others, can be sourced from the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/standard-requirements/medical-requirements/definitions.html IRCC website]. | This definitions, and others, can be sourced from the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/standard-requirements/medical-requirements/definitions.html IRCC website]. | ||
== J. The Charter == | == J. The ''Charter'' == | ||
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. | 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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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 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 | 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 people with mental health disorders 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. | ||
== 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 | Throughout the greater Vancouver area, there are many “group homes” run by and/or for persons with mental health disorders 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. | ||
