Mental Health Theory and Approach (14:III)
Admission to a mental health facility can seriously affect an individual’s rights. Textbooks have advocated a “functional” approach to mental health law, encouraging courts to consider only how the disability may relate to the specific issue brought before them. Incapacity in one area does not necessarily mean incapacity in all areas. Most mental health legislation, however, is over-inclusive, and therefore impairs the rights of mentally ill persons in areas where they might have the mental capacity to act for themselves. The common-law tests for capacity can be found in Chapter 15: Adult Guardianship
Section 15(1) of the Canadian Charter of Rights and Freedoms [Charter] has made it easier to preserve the rights of those affected by mental health law. While most discriminatory legislation in BC remains unchallenged, the MHA "deemed consent provisions" and the HCCFA and Representation Agreement Act "substitute decision making" provisions, are currently being challenged as unconstitutional at the BC Supreme Court. This litigation isn’t expected to be resolved for quite some time however. All Charter challenges have been directed towards either the MHA, the HCCFA, or the Criminal Code. The Community Legal Assistance Society may be able to assist with serious Charter challenges, including test litigation.
|© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.|