Why BC needs a human rights-based approach in its mental health systems
When basic rights are not respected, it has a negative impact on our overall health, including our mental health. Adequate safe and accessible mental health services, law, and policy are necessary to avoid human rights violations for someone with a mental health or substance use-related disability.
Communities that experience racism, colonization, or other forms of discrimination suffer negative mental and physical health impacts because of those experiences. They also face immense barriers to finding affordable, adequate, safe, and accessible services that support their needs. This is why a human rights-based approach is needed in BC’s mental health systems.
Human Rights and Mental Health Law
Our human rights stem from international agreements that come from the Universal Declaration of Human Rights. The rights contained in the Declaration are expanded upon in other human rights agreements.
These human rights agreements create obligations for countries that sign them. They essentially require that countries commit to ensuring that laws, policy, and government actions respect and uphold human rights, prevent human rights violations, and continually work toward the progressive realization of the commitments contained in the agreements.
Progressive realization means that countries must take steps and use the maximum of their available resources to continue working toward fulfilling the rights. This recognizes that it may not be possible to make necessary changes immediately, but countries must continually show they are making every effort to comply with these human rights agreements.
Canada has agreed to or adopted the major human rights agreements. The rights contained in these international documents also form the basis for Canada’s Charter of Rights and Freedoms and human rights statutes like BC’s Human Rights Code.
The Charter rights in sections 2, 7, 9, 10, 12, and 15 are particularly relevant in the context of health care and social services. These cover rights such as the right to life, liberty and security of the person, which cannot be violated unless the violation complies with the principles of fundamental justice (section 7) and the right to not be arbitrarily detained (section 9). Regarding detention, section 10 covers:
the rights on detention to be informed promptly of the reasons for detention
to retain and instruct counsel without delay and to be informed of that right
to have the validity of the detention determined through a habeas corpus application
to be released if the detention is not lawful.
As well, section 12 covers the right not to be subjected to any cruel and unusual treatment or punishment. Finally, section 15 is especially applicable in health care and social services because it is the right to equal protection from and equal benefit of the law without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
BC’s current mental health law and the impact
BC’s Mental Health Act authorizes the detention and involuntary treatment of people who have a “mental disorder” (the term used in the Act). The powers authorized by the Act affect some of our most fundamental human rights, including the right to an equal chance at health; the right to autonomy over our body and make our own health care decisions (security of the person); the right to be free from arbitrary detention (liberty); and the right to be treated equally (with respect to disability, but also other protected identity factors).
It is also important to note that BC is increasingly relying on involuntary approaches to mental health services while failing to expand access to voluntary services at comparable rates.
There is little disaggregated data publicly available on the use of the statutory powers and safeguards related to BC’s Mental Health Act but the information that is available indicates that the impacts of detention and involuntary treatment may be disproportionate based on factors such as age, gender, sex, Indigeneity, race, and substance use. To learn more about the impacts on specific populations, check out the full version of this post here.
Lack of accountability in BC’s involuntary treatment system
Detention and involuntary treatment pursuant to the Mental Health Act has become the primary way acute mental health and substance use health care is provided in British Columbia. At the same time, there is mounting evidence that BC’s health system is violating the human rights of people who experience detention and involuntary treatment, as seen in the timeline below.
2017
Operating in Darkness: BC’s Mental Health Act Detention System found widespread issues of non-compliance with basic human rights, such as practices among detaining facility staff of discouraging people from exercising their right to seek review of their detention by offering inducements, making threats, exerting pressure, and actively interfering with access to review hearings.
2018
No Pill for This Ill: Our Community Vision for Mental Health made a number of recommendations including ending the policing of mental health, ensuring people are respected as experts in their own mental health needs, increasing peer-based services, and ending the war on drugs.
2019
Red Women Rising: Indigenous Women Survivors in Vancouver’s Downtown Eastside recommended non-police mental health and wellbeing responses, increased cultural safety in the health system, reforms to the Mental Health Act to ensure it complies with the Charter, and many other recommendations.
Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act found that only 28% of files audited across British Columbia had the legally required documentation to detain and involuntarily treat patients under the Mental Health Act. The Ombudsperson made 24 recommendations for change.
BC’s Mental Health Act was singled out for criticism by the United Nations Special Rapporteur on the Rights of Persons with Disabilities. The Special Rapporteur observed that “the Mental Health Act of British Columbia contains very broad criteria for involuntary admissions and, once detained, a person can be forcibly treated without their free and informed consent, including forced medication and electroconvulsive therapy” in contradiction to Articles 14 and 25 of the United Nations Convention on the Rights of Persons with Disabilities.
In its 2019/20 annual report, the Mental Health Review Board documented that while involuntary treatment rates have risen, the number of people accessing review panels has not been rising to keep pace. The Board concluded that the Act has “systemic issues that undermine the ability of patients to receive fair, timely, and independent reviews of their loss of liberty.”
2021
Detained: Rights of Children and Youth under the Mental Health Act documented an alarming increase in detention and involuntary treatment of children and youth. The report found that there was a lack of opportunity for children and youth being detained to have a say in treatment options that are more trauma-informed, relational, diverse, and connected with family and culture and that unregulated use of restraint and confinement was “unacceptable”.
2022
The Ombudsperson’s Office released an investigative update regarding the 24 recommendations made in Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act. This update documented the progress and found that only one third of the 2019 recommendations had been implemented and non-compliance with the law is still widespread.
To get a fuller picture of the timeline of BC’s Mental Health Act, check out our timeline.
A human rights-based approach is needed in BC’s mental health system
A human rights-based approach is required to meet emerging recommendations established by the World Health Organization in its comprehensive guidance on promoting person-centred and rights-based approaches to mental health services, and the recent draft Guidance on Mental Health, Human Rights and Legislation.
Aside from these recommendations, a human rights-based approach is greatly needed in BC’s mental health system in order to ensure that people’s rights are respected by the very services that are supposed to help them in an already very vulnerable time. If the mental health system is supposed to help people, and claims to do so, then it must also prioritize respecting the rights of people accessing services -- these rights have shown to be necessary for wellness to be achieved.
To learn more about a human rights-based approach for BC’s mental health system, check out the expanded version of this post here, or check out our publication A Path Forward: Human rights-based guiding principles for BC’s mental health law and services.