Vaughn Palmer: Court overturns B.C.'s unique law for forced treatment of people with mental illness

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.

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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.”

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Hence, “Unconstitutional.”

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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.”

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“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.”

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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.

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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.

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“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.”

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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.”

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The judge responded to both claims with undisguised scorn.

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“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.”

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The judge also disputed the province’s insistence that involuntary treatments represented only a “temporary interference” with patients.