Introduction to Mental Health and Capacity (14:I)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 14, 2020.

Introduction

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. CLAS also provides legal information and identifies potential test cases. See Chapter 22: Referrals for CLAS contact information.

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 Chapter 15: Guardianship.

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.

Mental Health, Capacity, And the Law: An Overview

There are three distinct areas of concern in the intersection between the law, mental health, and capacity: persons who suffer or have suffered from psychiatric disorders, persons who have developmental disabilities, and persons who have diminished capacity. These issues are separated into three subcategories below to direct you to the pertinent chapter – some are covered in Chapter 14: Mental Health Law, while others are covered in 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 that they manage with medication.

1. Psychiatric Disorders

The first group are those people who may not have a developmental disabilities 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.

2. Developmental Disabilities

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 may not have the legal capacity to make legal decisions or treatment decisions. Their family members should be encouraged to use the planning tools found in 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 Incapacity–Section D. Wills and Estates.” However, developmental delays are not covered in-depth in the LSLAP Manual. The Ministry of Children and Family Development website provides basic background information in this area and may be a starting point for further research.

3. Cognitive Incapacity

The third area of concern affects those people who, due to 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 Chapter 15: Guardianship.

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