Mental Health Theory and Approach (14:III)

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This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 18, 2021.

Admission to a mental health facility can significantly impact an individual’s ability to exercise their rights. Textbooks have advocated for 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 (see MacLaren v British Columbia (Attorney General), 2018 BCSC 1753). The Attorney General of BC raised the issue of public interest standing in the above case which resulted in the case being dismissed. This decision was appealed to the BC Court of Appeal and the appeal was allowed on the issue of public interest standing in favour of the Council of Canadians with Disabilities (see Council of Canadians with Disabilities v British Columbia (Attorney General), 2020 BCCA 241). The Attorney General of BC applied for leave to appeal to the Supreme Court of Canada, and the Supreme Court of Canada will hear the appeal in the future.

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 2021, The Greater Vancouver Law Students' Legal Advice Society.