Introduction to Mental Health and Capacity (14:I)

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This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 22, 2022.



This chapter provides a very general overview of the rights of persons with mental illnesses, whether as patients inside a mental health facility or as persons outside such a facility. This 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 operates 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 the Mental Health Act, RSBC 1996, c 288 [MHA]. CLAS also provides legal information and identifies potential test cases. See Chapter 22: Referrals for CLAS for contact information.

This chapter engages 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 into a contract, make a will, or create a representation agreement, please consult Chapter 15: Guardianship.

For the purposes of this chapter, the most important statute is the MHA. Other pertinent legislation is listed later in this chapter under Part II: “Governing Legislation and Resources”. If you have an issue regarding 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 legislation governs the forensic psychiatry services, which assists with court ordered psychiatric assessments, including fitness to stand trial or “Not Criminally Responsible” designations.

A. Mental Health, Capacity, and the Law: An Overview

There are three distinct areas of concern at the intersection between the law, mental health, and capacity: (1) persons who suffer or have suffered from psychiatric disorders, (2) persons who have developmental disabilities, and (3) persons who have diminished capacity. These issues are considered separately below in order to direct you to the pertinent chapter. Some matters are covered in this chapter, while others are covered in Chapter 15: Guardianship. However, it is important to bear in mind that a client may experience several mental health challenges that overlap and blur the lines between the categories. For example, a person 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 encompasses those who may not have a developmental disability or diminished capacity but who suffer from psychiatric disorders. Psychiatric disorders can range from mild delusions or mood disorders, to pervasive and severe psychosis. These individuals are most likely to fall under the provisions of the MHA. The legal issues faced by this group are the central 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 second 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. These individuals may not have the capacity to make legal decisions or treatment decisions. Family members should be encouraged to use the planning tools found in Chapter 15: Guardianship to make provisions for the care of these individuals. 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. For further information regarding supports and resources for persons with developmental disabilities, please visit the following Government of British Columbia websites:

  • Adults with Developmental Disabilities
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/services-for-people-with-disabilities/supports-services#programssupportsforadultswithdd
  • Transition Planning for Youth and Young Adults
Website: https://www2.gov.bc.ca/gov/content/family-social-supports/services-for-people-with-disabilities/transition-planning-for-youth-young-adults
  • Children & Youth with Support Needs
Website: https://www2.gov.bc.ca/gov/content/health/managing-your-health/child-behaviour-development/support-needs

3. Cognitive Incapacity

The third area of concern includes those people who, due to disease or trauma, have 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 required for the decision to appoint a Representative in a Representation Agreement than there would be for the decision to draft a will. Family members and caregivers for this group would be better served by the information in Chapter 15: Guardianship.


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