VICTORIA — The second-to-last week of the fall legislative session began with a last-minute addition by a government that showed every sign of making things up as it goes along.
The bill, introduced Monday, removes a provision in the Mental Health Act that has been targeted by a court challenge going back almost a decade.
The passage declares that where a patient is detained in a designated treatment facility under the Act, “treatment authorized by the director is deemed to be given with the consent of the patient.”
The “deemed consent” provision is deeply offensive to advocates for the mentally ill, as well as to patients and their families.
It sets up a situation where patients subjected to drugs, restraints, electroshock and the like are deemed to have consented to the treatment, whether or not they did so. Or, indeed, whether they were even capable of consent.
Yet Premier David Eby insisted Monday that the provision, which dates back more than 40 years, has been greatly misunderstood.
“It has created a lot of confusion and anxiety that we think has been misplaced,” he told reporters. “The function of this section is to ensure that when this care is delivered, that the health-care professionals who deliver it are legally protected.”
Still, the government was amending the Act to remove the notion of “deemed consent”. In its place is a provision for care, treatment and other professional services, providing those were authorized by the director under the Act and covered by a consent-to-treatment form signed under the Act.
“It is important, we believe, to ensure that this section is worded in a way that it is clear about what it does,” said the premier. “That this is not a section that does anything other than provide those frontline health-care workers with the legal support that they are required to do their job.”
Eby acknowledged that the timing was connected to the court challenge to the Act, a case brought by the Council of Canadians with Disabilities.
“We are in court right now defending the involuntary care provisions of the Mental Health Act,” the premier confirmed. “We think it’s important that these provisions exist. We think it saves lives. We think it protects dignity. We think it gives people an opportunity to rebuild their lives after facing catastrophic mental health challenges.”
He maintained that scrapping the “archaic language” of “deemed consent” would have minimal impact on the court case itself.
“This change that we are introducing in the Legislature does not make that court challenge irrelevant. It doesn’t have an impact on whether or not the court is able to grapple with this important question about what the limits are on involuntary care or treatment.”
As the news conference went on, the New Democrats struggled to keep the story straight.
Here’s Attorney-General Niki Sharma on what the amendments meant to the court proceedings.
“The arguments for this case were formulated and delivered well before these amendments,” said Sharma. “The judge will hear the last day of closing arguments and make the decision related to what our team has put before (the court).”
The premier had to intervene and correct the record because the judge had already heard the last day of closing arguments in the case.
“Final arguments in the Mental Health Act challenge were completed last week,” the premier told reporters.
Moreover, the province’s lawyers had already advised the judge about the implications of the pending amendments to the Act.
“Our counsel has been clear with the court and with the other side that this amendment will likely require the reopening of arguments so that both sides are able to put their best positions forward,” said the premier. “We’re hopeful that it will be able to provide a more useful decision for us as a province and for the applicants as well.”
What a bizarre train of events. From the outset, the Council of Canadians with Disabilities made “deemed consent” the focus of a Charter challenge. The New Democrats fought the council’s claim for standing all the way to the Supreme Court of Canada — and lost.
The case itself went ahead last spring, with Eby acknowledging that “other provinces have lost a very similar challenge to the one we face here in B.C. around compelling people into treatment.”
Still, he was determined to fight on. Now, with the court case already wrapped up and less than two weeks remaining in the fall session, the government has decided to abandon a key aspect of its case.
“I certainly acknowledge that this section’s language has been a challenge for a long time for advocates,” said the premier. He also conceded that the timing of the legislative amendments “is not ideal”.
“As we get closer to decision date,“ said Eby, “there are some reasonable anxieties among the frontline health workers that if this case is successful in overturning that provision, that they won’t be protected.”
More likely, the government lawyers advised that the province was headed for defeat on deemed consent. The premier then decided to remove the offending section before it was struck down by the court.
