Know Your Rights: Mental Health

Written By Danelle Ortiz (Community Legal Education Organizer, CCAP)

The Mental Health Act: A Summary

On November 29, 2019, Laura Johnston from Community Legal Assistance Society gave a presentation on the MHA to about 35 community members in the Carnegie Theater. Laura’s presentation was informative and focused on what our community members wanted to know–what are the police powers to detain someone under the Act and what rights do those who have been detained under it have?

Police Powers

How does a police officer determine that they will apprehend someone under the MHA? The police officer must believe the person is a threat to their own or other people’s safety and appears to be a “person with a mental disorder.” If these two conditions appear to be met, police can detain someone for an immediate psychiatric evaluation.

Involuntary Admission

People may be involuntarily admitted into a hospital or psychiatric facility if:

  1. The person has a mental disorder that requires psychiatric treatment, and this issue seriously impairs their ability to react appropriately to the environment or associate with others;
  2. The person needs psychiatric treatment in a facility;
  3. The person needs care, supervision, and control in a facility to prevent substantial deterioration of their mental or physical health, or for their own protection or the protection of others; and
  4. The person can’t be admitted as a voluntary patient.  

Generally, everyone under the law has the right to accept or reject health treatment. However, the MHA overrides the consent rights of involuntary patients. Involuntary patients cannot make any psychiatric health care decisions on their own.

Involuntary patients can also be placed on leave in the community, with conditions. If the facility issues a warrant, the police can apprehend patients and bring them back to the facility. While patients are on leave, they must still comply with all psychiatric treatments prescribed to them.

What rights do involuntary patients have?

Absolutely everyone has constitutional rights upon being detained:

  1. To be told right away why they are being detained;
  2. To be told of their right to a lawyer and helped with accessing one; and
  3. To access court to review the validity of the detention.

Involuntary patients have the right to know why they are being detained and involuntarily treated under the MHA. A doctor explains how the patient meets the MHA detention criteria (Form 4s). A patient has the right to be examined by a doctor during every detention period to assess whether or not they still fit the criteria, and a doctor must track and assess changes in a patient’s condition and how they still fit detention criteria in the event of a renewal (Form 6s).

It is difficult to access legal aid if you are an involuntary patient. Patients have the right to get legal advice when they are detained, but there is no legal aid funded service for this. CLAS is advocating to the government to fund this service. There are also many barriers to accessing free legal representation when patients are challenging their detention. Unfortunately, due to material barriers, almost no patient goes to court for a review.

Patients have the right to ask for their detention to be reviewed at a review panel hearing of the Mental Health Review Board. A review panel consists of a lawyer, a doctor, and a community member, who decide whether a patient’s detention should continue or not. Patients have the right to an advocate or lawyer to argue for release at review panels.

CCAP Community Members Weigh In

According to feedback from several of CCAP’s volunteer members, many in the Downtown Eastside have witnessed someone being detained under the Mental Health Act (MHA), or have been detained under the Act themselves. One objective of our BC Law Foundation-funded legal education workshops is to inform people of their rights while honoring the knowledge they have developed in their own experiences with law enforcement, and this workshop gave us an opportunity to do so.

What kickstarts the process for someone to be detained as an involuntary patient under the MHA? In many cases, it is a police officer who has observed someone and conclude that this person appears to be mentally ill.

As our community members pointed out, appearances can be misleading. The problem with these requirements is that both conditions depend on the officer’s own discretion–that is, their interpretation of someone else’s behavior–or information they have received. In a community where discrimination by the police is often seen and felt, any mental health crisis response which involves police is understandably regarded with unease or objection.

People don’t necessarily object to someone being helped if they are threatening to or actively harming themselves or others. A sustained public dialogue led by those who have experienced mental health issues needs to be initiated on what this “help” should look like. This would involve a hard look at how police officers, hospitals, and psychiatric institutions interact with people’s autonomy and freedoms.

Want to learn more about your rights under the Mental Health Act? Visit this link: https://www.bcmentalhealthrights.ca/

For more information about mental health reform and legal aid advocacy, visit this link: https://clasbc.net/our-work/law-reform/mental-health-law-reform/

CCAP’s free and public legal education workshops are funded by the Law Foundation of BC.