Difference between revisions of "Mental Health Law and Legal Rights (14:IV)"

Mentally ill persons may be eligible for benefits under the Persons with Disabilities (PWD) or Persons with Persistent and Multiple Barriers to  Employment (PPMB) designations. Qualification requirements are strict, but decisions concerning eligibility can be negotiated with the Ministry  of Employment and Income Assistance or appealed. Disability Alliance BC assists with applications and appeals (for further details, see [[Introduction to Welfare (21:I) | Chapter 21: Welfare Law]]). There may be strict deadlines for these applications so it is important to not delay in these cases.

In general, mental incompetence or disability is no defence to an action for intentional tort or negligence. However, where a certain amount of intent or malice is required for liability, the fact that the defendant lacked full capacity to understand what he or she was doing may relieve him or her of liability.  

 

 

In civil suits, a guardian ''ad litem'' may be appointed to start or defend an action where a mentally ill person is a party and lacks the  capacity to commence or defend that action. A person involuntarily detained under the MHA appears to meet the definition in the BC Supreme Court Rules of Court of a person under a legal disability for filing or defending a court action. Therefore, the person would need to proceed through a guardian ''ad litem''.  

Section 38 of the ''Immigration and Refugee Protection Act'' deals with inadmissibility on health grounds. Pursuant to s 38(1)(c), foreign  nationals will be inadmissible if they “might reasonably be expected to cause excessive demand on health or social services.” This rule could potentially present a bar to admission for individuals determined to be developmentally delayed or those with a history of mental illness. However, s 38(2) lists certain exceptions. If a person may be classified as: a member of the family class and the spouse, common law spouse, or child of a sponsor; a refugee or a person in similar circumstances; a protected person, or; where prescribed by regulation, one of their family members, that person will be exempted from the rule under s 38(1)(c).  

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.  

''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.  

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. This power is usually used on the director of a hospital, party to the proceedings, to whom the review board cannot prescribe a specific treatment, but can impose conditions regarding treatment. It is obligated to ensure that treatments are culturally appropriate. In the ''Mazzei'' case, there was conditions for drug and alcohol rehabilitation appropriate for his first nations ancestry.  

A recent Supreme Court decision, ''R. v Conway'', 2010 SCC 22 (Conway) responded 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.