Vancouver, BC (Unceded Coast Salish Territories) – The BC Civil Liberties Association (BCCLA) is disappointed by the BC Court of Appeal’s decision in AT v British Columbia (Mental Health Review Board), 2023 BCCA 283, released on July 13, 2023. The Court ruled that individuals can remain indefinitely detained under the Mental Health Act (the “Act”) even when they are no longer “seriously impaired” by acute or active symptoms of a mental disorder, but simply lack insight into their condition or disagree with the proposed treatment.
Section 22 of the Act allows for the involuntary detention and treatment of individuals who are “seriously impaired” by a mental disorder. In this case, despite the patient no longer being seriously impaired by active symptoms at the time of the review hearing, the Mental Health Review Board broadly interpreted the definition of a “person with a mental disorder”, concluding that the criteria for continued detention was met. The Court held that a patient’s lack of insight, including their desire to stop taking medication if released, is sufficient to establish that they are “seriously impaired.”
The BCCLA intervened to argue that the liberty right guaranteed under section 7 of the Charter is best protected when the statutory definition of a “person with a mental disorder” is read narrowly to include only those who are seriously impaired by a mental disorder at the time of review. The BCCLA argued that lack of insight or disagreement with proposed treatment cannot be enough to detain an individual against their will, potentially indefinitely. To continue the detention of a vulnerable person who has committed no crime and presents no risk to the public simply because they may lack judgement or disagree with the proposed treatment is antithetical to the protections afforded by the Charter.
Veronica Martisius, Litigation Staff Counsel, BCCLA, states: “I’m perplexed by the Court’s finding on one hand, that “aspects of the language, context, and purpose of the Act support both [the position of the Appellant and Respondent]” and on the other, that “the relevant provisions of the Act are not ambiguous.” Clearly, there is ambiguity in the law. The law then requires matters such as this to be decided in a way that protects the liberty interest at stake regardless of the broader systemic issues. In the absence of a better alternative to forced treatment, the solution is not indefinite detention.”
The BCCLA is grateful to Carly Peddle of MacKay Boyar for her thoughtful and compassionate representation.