Vaughn Palmer: Court overturns B.C.’s unique law for forced treatment of people with mental illness
Opinion: Province has no research to back up claim it has better results than other provinces
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VICTORIA — The B.C. NDP government suffered a major defeat last week when a court threw out a unique-to-B.C. law that allowed some patients with mental disorders to be treated with powerful mind-altering drugs without their consent.
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B.C. Supreme Court Justice Lauren Blake found the involuntary treatment provision in the Mental Health Act was “arbitrary, overbroad, grossly disproportionate, and not in accordance with procedural fairness.”
Hence, “Unconstitutional.”
The loss was doubly embarrassing for the New Democrats. Premier David Eby insisted on defending the law in court, even though other provinces have already lost “a very similar challenge around compelling people into treatment.”
“We think it’s important that these involuntary care provisions in the Mental Health Act exist,” said the premier as the case proceeded last year. “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.”
Yet the court found that the NDP government failed to prove those claims in court. Blake repeatedly faulted the province for making arguments that were not backed up by adequate research or a clear reading of the evidence.
The most obvious shortcoming was the province’s failure to do a proper comparison of the mental health regimes in other regions of Canada, which protect patients from involuntary treatment in ways that B.C. does not.
“B.C.’s involuntary treatment regime has been in effect for over 50 years. There is no comparable provision elsewhere in Canada,” wrote the judge. “If the position of the province were correct, there should be decades of evidence which demonstrates how B.C. outperforms all other Canadian jurisdictions in the provision of psychiatric care to involuntarily admitted patients. No such evidence was tendered.”
A government representative admitted that, “(Blake) was unaware of any analysis by the province into whether the number of patients receiving treatment in B.C. would be higher or lower if the provisions were not in force, or whether health outcomes would be better or worse under any different model.”
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A key issue before the court was the duration between the onset of symptoms and when an individual patient receives the treatment. The province claimed that, “B.C. outperforms almost all other jurisdictions in this regard, not just in Canada but globally. B.C.’s average duration for all involuntary patients under the Act is a staggering five weeks.”
The judge responded to both claims with undisguised scorn.
“This is an incorrect statement of the evidence,” she wrote. “There is no evidence upon which I could determine what B.C. average duration for all involuntarily admitted patients is, let alone conclude that it is five weeks.”
The judge also disputed the province’s insistence that involuntary treatments represented only a “temporary interference” with patients.
“Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs,” she wrote.
Among the dozen or so experts who testified in court was Dr. Daniel Vigo, the premier’s handpicked chief scientific adviser for psychiatry, toxic drugs and concurrent disorders.
He was the only expert who disagreed with the others on whether a patient in involuntary detention could still be capable of providing informed consent to treatment. The other experts said there were such patients.
Not so, said Vigo.
“Dr. Vigo was the only expert who testified that he could not conceive of a patient who was involuntarily admitted who retained capacity to make treatment decisions,” said the judge.
However, on cross-examination, “Dr. Vigo acknowledged that his knowledge of the spectrum of capacity for involuntary patients is limited by the fact that he is not an emergency physician, and that his work is focused on the most severely mentally impaired patients.”
Given that admission and contrary opinions from five other experts, “I give Dr. Vigo’s opinion on this issue no weight,” she wrote.
The province lost two more rounds late in the proceedings.
B.C. asked the judge to suspend her ruling for 12 months to provide time to fix the legislation. The judge, noting that the province “acted quickly” to amend the Act in the midst of the proceedings, said six months should be enough.
But in the event the New Democrats can’t get it done, she ruled they will have to come back before her and apply for an extension “on a proper evidentiary basis.”
Blake also awarded special court costs to the Council Of Canadians With Disabilities, the non-profit charity which has fought this case for 10 years, relying on pro-bono legal help, and winning every round.
As of the beginning of the week, the New Democrats were still studying the decision before deciding to appeal. One can only hope they will seek independent legal advice before squandering more public money on the proven inadequacies of the premier’s grasp of the case.
