Why Independent Legal Advice Services Matter for People Detained under the Mental Health Act
February 16, 2022
BY Laura Johnston
Imagine you were detained in a hospital against your will or a loved one you support is taken to a care facility without your consent. The facility staff say the Mental Health Act allows this detention as well as providing psychiatric treatment without consent. The immediate questions that come to your mind might be anything from “how long can the detention last?” to “can I challenge that decision?” – but everyone would have questions. Now imagine there is no established legal advice service to turn to with those questions.
Sadly, this is the situation for involuntary patients detained under the Mental Health Act in BC, including people with dementia. And while there are many controversies about whether dementia is a mental disorder that meets the Mental Health Act criteria of “requiring psychiatric treatment”, it’s clear that many people are involuntarily admitted and treated under the Mental Health Act in hospitals and care facilities because they have dementia. So what are independent legal advice services and why do they matter?
What are Independent Legal Advice Services?
Independent legal advice services are person-centred advocacy models designed to promote self-determination and recovery for people detained and experiencing involuntary treatment under the Mental Health Act. Some key functions include:
- Providing legal information and advice to involuntary patients about the laws they are subject to and their legal rights;
- Providing legal information to the family members and personal supporters of involuntary patients; and
- Providing assistance, advice, and support to involuntary patients to exercise their rights and participate in decisions impacting them.
Why do we need Independent Legal Advice Services?
BC is one of the few Canadian provinces that does not have some form of independent legal advice and advocacy services for involuntary patients detained under civil mental health legislation.
The Canadian Charter of Rights and Freedoms guarantees everyone the right to access a lawyer when they are detained. But when detaining facility staff notify involuntary patients that they have the right to access lawyer, there is no established service for them to contact for legal advice and advocacy.
The absence of independent legal advice and advocacy services for people detained under the Mental Health Act has created an access to justice crisis in BC:
- The rates of Mental Health Act detentions have been increasing dramatically, with over 28,000 detentions in the most recently reported year. The detention rate has more than doubled in the last 14 years.
- Despite this increase, the number of involuntary patients accessing their right to independent review of detention at the Mental Health Review Board has decreased in recent years, down to only 811 hearings in its most recently reported year. That means only approximately 3% of detentions are independently reviewed.
- 1 in 3 involuntary patients conducts a legal proceeding to challenge their detention at the Mental Health Review Board without legal representation.
What are the Benefits of Independent Legal Advice Services?
Research documents that people who have been detained or involuntarily treated under mental health legislation report that the experience can be frightening, confusing, disempowering, and made them feel helpless. There is a risk that regardless of the intention, the coercion inherent in involuntary treatment can reduce potential benefits of treatment, create counter-therapeutic harms or trauma for patients, and lead to alienation from health and social services in the future.
Evaluations of independent legal advice services have found many benefits, including:
- Increasing service users’ well-being, confidence, and recovery goals;
- Assisting health care systems in addressing anti-racism and equitable service provision;
- Enhancing and empowering patient participation in decision-making around care and treatment;
- Reducing isolation and improving communication and connection with family, friends, and community based mental health services, which could prevent future mental health crises;
- Supporting health care systems to make improvements in culture and practices, fostering greater accountability, reflection, and transparency among treatment teams;
- Facilitating more constructive relationships and defusing conflict between service users and detaining facility staff;
- Mitigating health care delivery risks for detaining facility staff and increasing the rate of successful complaint resolution; and
- Improving quality of care and life for service users and acting as a safeguard against poor or inconsistent practices.
In March 2019 the BC Ministry of Attorney General committed to seeking the appropriate approvals to create and fund the service, but it still has not been established yet. The creation of an independent legal advice service will go a long way to make downstream improvements for people detained under the Mental Health Act, their families and personal supporters, and the health care system.
This Access to Justice week in BC, community organizations have come together to talk about why we need independent legal advice for people detained under the Mental Health Act and what the building blocks are for a successful service. See the community vision for BC at: https://www.healthjustice.ca/access-to-justice
