Mental Health Law and Legal Rights (14:IV): Difference between revisions
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== 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) are particularly relevant to protecting the rights of the mentally ill. Rights | 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. | ||
To date, the case law regarding the mentally ill and the ''Charter'' is not extensive. In ''Thwaites v Health Sciences Centre Psychiatric Facility'' (1988), 48 DLR (4th) 338 (Man CA), involuntary admissions criteria not based on dangerousness were held to infringe s 9. A similar case in BC challenging the detention criteria on constitutional grounds was unsuccessful (see ''McCorkell v Riverview Hospital Review panel'' (1993), 104 DLR (4th) 391 (BCSC)). See also the discussion of ''Charter'' considerations under [[Mental Health and the Criminal Code (14:VIII)#B. Criminal Responsibility | Section VIII.B: Criminal Responsibility]]. | |||
''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. Also, the review board cannot prescribe a specific treatment, but can impose conditions regarding treatment. It is obligated to ensure that treatments are culturally appropriate. | |||
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. 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. | |||
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.)). | |||
