Forced Treatment And The Charter

A government can detain someone for mental health reasons, but can it also force treatment without first asking a harder question: are they actually capable of deciding for themselves? We walk through a major British Columbia decision on involuntary treatment under the Mental Health Act, where the court finds a section 7 Charter breach because director-approved treatment can override a patient’s wishes without a meaningful capacity process. Along the way, we unpack why consent, bodily autonomy, and dignity are not optional extras in Canadian health law, even when the patient is involuntarily hospitalized.

We also dig into what changed midstream, including the repeal of “deemed consent”, and why that still didn’t fix the underlying problem. BC stands out compared with other provinces that use capacity assessments, advance directives, representation agreements, or substitute decision-makers to navigate informed consent and psychiatric care. The court suspends its ruling for six months, putting pressure on the province to amend the legislation or consider an appeal, while leaving the policy design to elected lawmakers.

Then we pivot to a Supreme Court of Canada ruling with national impact: Parliament cannot legislatively prevent judicial review of administrative decisions. Using the WE Charity conflict of interest complaint and Democracy Watch’s challenge as the backdrop, we explain how the rule of law and section 96 of the Constitution Act protect the superior courts’ core role in reviewing whether government power is exercised lawfully and reasonably. If you care about mental health rights, government accountability, and the real meaning of the rule of law in Canada, this one connects the dots. Subscribe, share the episode, and leave a review, then tell us: where should courts draw the line on state power?

Follow this link for a transcript of the show and links to the cases discssed.

Transcript

Why This BC Case Matters

Michael Mulligan 0:31

Yeah, this is a very interesting and significant decision. And it comes from a uh challenge brought by a group called the Council for Canadians with Disabilities. Uh and it was a constitutional challenge to the process we have in British Columbia to uh make treatment decisions about administering treatment to somebody who is an involuntary patient under the Mental Health Act. Uh and the particular uh challenge was brought on the basis of an alleged breach of Section 7, which is the right to life, liberty, and security of the person. Um of interest, the challenge brought was not a challenge to the process whereby uh a person can become an involuntary patient in a mental health facility. Uh and broadly speaking, as we've talked about before, there's authority under the Mental Health Act to have somebody involuntarily uh admitted and to become a patient if they have a per if they're a person with a mental disorder, and this is simplifying it a bit, but are a danger to themselves or others, right? There's a bit more flowery language around that, but that's really what it amounts to. Um and there's a process in the Mental Health Act uh that involves various sorts of assessments and reviews to determine whether you are that sort of a person who can be involuntarily admitted. Now, the that was not challenged in this piece of litigation. What was challenged uh was the uh process that's in place to uh then impose involuntary treatment on somebody who has been involuntarily admitted.

Autonomy And Consent In Health Care

Michael Mulligan 2:10

Um and that's what was challenged. And as the judge pointed out, and this is quite a decision, it goes it's uh hundreds of pages, um, it is uh uh the case that the idea that a person has autonomy over their own body and is able to freely determine whether they wish medical treatment is something that is pretty deeply routed rooted in our common law. Uh and that's true, right? I think most people would sort of in instinctively realize that that's so, right? Your ability to say, yeah, I want that treatment, surgery, or whatever it might be, and your ability to say, I don't want that, or stop treating me, uh is pretty integral to a person's sort of autonomy and dignity and so on, right? Um and so that's the starting point that the judge applied when analyzing uh the constitutionality of how that system worked in BC. And when this legislation started, and right up to just before the submissions were being done in this very long, complicated trial, uh, there was a change in the legislation, which was really interesting. The way it worked all the way up to right at the end of this trial, and you have to wonder whether the change might have been perhaps uh prompted by the trial itself, that's uh not an unknown state of affairs, is that when a person became an involuntary patient, right, the the through that process of determining that they're a risk to themselves or others, the legislation then essentially deemed them to have consented to whatever medical treatment the doctors were wanting to impose. Now that's pretty broad. Um and some of the uh treatment uh that can be uh imposed on somebody under the Mental Health Act can have pretty significant implications, like you know, medications that have side effects. Uh we even do things like uh, you know, uh uh uh shock treatments are administered to some patients. You know, they can have impacts on the person's, you know, memory and all kinds of things, right? And so those are pretty uh intrusive treatments sometimes that are imposed. Now, there are some cases where you would have a person who would be incapable of determining whether they can consent or not. But the fact that you are have a mental disorder, and indeed the fact that, for example, there's a determination that you might be uh a risk yourself, doesn't necessarily mean that you are incapable of making decisions about the treatment you're gonna receive, right? You know, a person could, you know, have a mental uh health condition which is coming and going, for example, uh, and they could be at some point in the position where they might be able to make a rational choice about, hey, I don't want that medication, it has these terrible side effects, or I don't want the shock treatment, or you know, I want to have this medication or that medication or whatever. Um, and the way this legislation worked is they was just too bad. They just do what they want to you once you're admitted as an involuntary

The End Of Deemed Consent

Michael Mulligan 5:05

patient. That provision the government repealed right as this our thing was being uh uh argued, uh section 31 of the Mental Health Act, they repealed it in the last days of the trial. Uh and so you might think, well, surely that's it then. Now where does that leave us? But that's not the end of it, because there's another section of the act that remains, uh, and it's the section that's being relied upon now, and it's the section that allows a uh director to authorize treatments that the person doesn't want. Uh and you know, there's a proceed, there's a scheme those people are to consider when determining whether to approve something, but that doesn't involve the person. It involves sort of uh, you know, decision made by uh another individual. Yeah. Now that part of the challenge continued, and it succeeded. Uh and it succeeded on the basis that uh, first of all, they found that this was a breach of section seven allowing, you know, this director to approve treatments you know contrary to a patient's wishes without any meaningful process to determine whether they are somebody who's capable of making those decisions themselves, or you can have other circumstances. Like, for example, a person could in advance, you know, when they're in a position where they could do those things, express their wishes. Right? That's that's not uncommon, right? A person could express the desire for medical treatment at a point in time in their life when they're uh competent and capable of making those decisions, you know, in terms of what they do and do not want. Or, for example, you could designate somebody else, like a family member or friend or somebody else to make those decisions for you. Uh and the the scheme of having this director make the decisions uh just bypassed all of that. And of interest, as the judge pointed out, BC is an outlier. Every other jurisdiction in Canada uh has a process in place whereby there would be a separate determination about whether the person is competent or capable of making treatment decisions, uh, and whatever variety of different approaches in terms of those other kinds of things, like the advanced direction or family member deciding uh those things, uh trusted person uh for you. And BC had none of that. Um and so the judge found, and I should say the government argued that yes, if this is a breach, it's justified

Director-Approved Treatment Struck Down

Michael Mulligan 7:25

under section one of the charter, right? That's that one about you know reasonable limits and so on. But when analyzing a section one argument, saying, hey, if we breach this, this was a sort of an acceptable limit in a free and democratic society. One of the parts of that test is whether it's kind of like the least intrusive way you could do that, right? Yeah. And so even though the judge agreed that, yeah, there's a pressing and substantial need to provide treatment to people who may not, you know, maybe in danger themselves or others and may or may not be in a position to um determine those things themselves, uh, that the approach of just saying, sorry, the director's gonna decide isn't the minimally intrusive way to do that. Uh and so the judge found that section one was not sufficient to save uh these uh provisions in in British Columbia, and so found that those the remaining provisions, the impugne provisions in section eight, um uh have been found to be unconstitutional uh and of no force and effect. Now, the judge did give the has given the province six months to decide what to do with that, has suspended the uh implementation of this decision for that period of time. And as the judge correctly pointed out, um it's not the court's task to try to make some of those, you know, nuanced public policy decisions about what's the best or most effective or most just uh appropriate way of determining how involuntary medical treatment ought to be provided, right? There are lots of likely constitutionally permissible uh ways you could accomplish that, right? You know, do you want to have some process so the person could appeal at, or some process to determine capacity, or you know, you the government might choose to have some process whereby, you know, if there's something like the representation agreement in place already, or prior uh authorization for some treatment but not others, that those things ought to be taken into account, or that's how it should be sorted out. And so even though this is a very detailed assessment of you know what was going on and whether the current scheme of just allowing the director to decide uh these things, uh that's been found to be unconstitutional. But the judge, think quite properly, didn't try to figure out what should replace it, other than to say

Section 1 Not A Free Pass

Michael Mulligan 9:40

it's gotta be replaced. You can't just have a blanket process, even though they got rid of that deemed consent to everything. Uh that isn't uh that that doesn't answer what would be permissible, and so it's now over to the government to decide what to do with that. Um and so it will be very interesting to see what comes of this, right? One approach the government could take is to say, oh, take this all to heart, say, yeah, okay, we've had this uh 34-day trial with 14 experts and 22 expert reports and uh you know hundreds of pages of analysis of it, and yeah, you're right, we should probably get this thing into uh, you know, this century. Uh that could be an approach. Um, or uh another approach could be uh that they choose to appeal it. And and that may happen as well. As the judge pointed out, there are sort of pretty uh sort of extreme claims uh made by uh counsel in terms of uh how the wheels would come off the bus if this was found to be unconstitutional, although apparently every other province has figured out a way to make it work in a constitutionally compliant fashion. But the other approach could be uh an appeal of it. And so we'll have to wait and see. They've got uh the ordinarily of 30 days to appeal the decision, uh, and the judge has given them six months, and so what'll happen now is the province will need to figure out are they going to uh amend the legislation to uh address uh those concerns and come up with a uh a meaningful process to separately determine capacity to make the treatment decisions, uh separate from should you be admitted, right? Doesn't get you out of the hospital, it just means you know they can't force the shock treatment on you uh without some process in place to determine whether you're competent to decide whether that's something you want done to yourself, or some other process in place like the ones we talked about, right? Family member prior uh indication of what treatment is you you wish, uh, or whether they wish to uh challenge this and try to maintain uh a system where a government uh uh person, a director, could uh authorize treatment uh despite the patient's wishes and despite any of those other things uh that the person might uh do to have somebody make that uh decision for them. And so that's the latest out of the BC Court of Appeal on how uh we're going to deal with um involuntary

What BC Does Next

Michael Mulligan 11:55

treatment of people who are uh admitted for uh mental health issues into hospitals in British Columbia.

The WE Charity Dispute Returns

Adam Stirling 12:00

Michael Mulligan with Morgan Defense Lawyers legally speaking will continue right after this. Michael up next to our Canada Supreme Court of Canada finds that the government cannot legislatively prevent judicial review on administrative decisions. What happened?

Michael Mulligan 12:15

It's an important decision, I should say, and the origin of this thing came out of the some uh keen uh uh keen listeners may recall uh a number of years ago now, there was an issue about then Prime Minister Trudeau uh involving himself uh in funding decisions for a charity that he was involved in called the WE Charity. The WE are both capitalized, amusingly, the WE Charity. Um and there was a review of his participation in these funding decisions, given his involvement with the charity itself, uh, under the Conflict of Interest Act. Uh and that act uh provides for a commissioner to do an assessment as to whether there was a conflict of interest in a decision like that. And the conflict of interest commissioner uh determined uh that they it was fine. There wasn't a conflict, that was the conclusion. That uh uh conclusion uh was challenged by a group called Democracy Watch. Um, and they were given public interest standing, and they challenged uh that uh finding of the commissioner. Now, the government, interestingly, relied on a section of that conflict of interest act uh which limits the capacity to uh have a judicial review of factual and legal findings under that uh legislation. Section 66 purported to do that. Um and relying upon that section of the uh conflict of interest uh uh act, uh the court and then the federal court of appeal uh found that uh they didn't have uh jurisdiction to uh conduct a judicial review into uh the decision of the commissioner about whether the prime minister was in a conflict. Um and they suggested that uh the political process would be a uh potentially uh satisfactory way for the public to respond to their views of uh his involvement in making that decision. And so that's the factual matrix that went off to the Supreme Court of Canada. And as the Supreme Court of Canada pointed out right at the outset of their decision appropriately, uh, is that the rule of law is a fundamental uh part of our constitutional

Why Courts Must Allow Review

Michael Mulligan 14:25

structure. Um and one of the components of the rule of law is to ensure that when the public power is being exercised, it needs to be possible to determine whether it's being done legally. Otherwise, what does the rule of law really mean, right? And if you could just insert into a piece of legislation a provision that says you can't challenge this by way of judicial review, you would then live in a topsy turvy world where you could have government officials making decisions about things, and there would be no way to go to court and determine whether what they were doing was legal or not. Uh and so the way the court approached this um is uh under the is a consideration of section ninety-six of the uh Constitution Act. And section ninety-six, when you just read it, you say, well, what does this uh say? It says this, section ninety-six. The governor general shall appoint the judges of the superior district and county courts of each province, except those in the court of probate in Nova Scotia, New Brunswick. What does that mean? It's kind of gobbledygook. But it talks about the appointment process, and then there's another section that deals with the protections for those kinds of judges. Like they can't just be fired if the government doesn't like them. There's a process we've got to have a resolution of the House of Commons and Senate to remove a judge for cause. And that section, those sections would be pretty meaningless if you could just take away all the powers of superior court judges or assign all the powers to the you know prime minister's aide or something to uh make those decisions, right? And so courts have over the years found that those sections to be meaningful, uh, and they are meaningful because you then have a superior court with judges that can't just be fired when the government doesn't like what they're doing, for example. Um uh and you also can't have a circumstance where the government could just transfer all the powers to somebody else and then have none of those people, for example. That would also be a way to circumvent uh having an independent judiciary. And so the courts have over the years interpreted those sections to say, well, you you can't take away the fundamental powers of those judges, otherwise the section is meaningless if you could then just have a bunch of you know political appointees deciding all the things that the Supreme Court judges used to decide. Uh and so what the Supreme Court of Canada was dealing with here is that whether that uh the jurisdiction to conduct judicial reviews, which are to assess whether, for example, a decision made by the government is is there whether there's jurisdiction for it, right? You know, was this properly federal or provincial, or did the legislation allow this kind of a decision, or was the decision a reasonable one, right? That the

Section 96 And Judicial Independence

Michael Mulligan 17:10

uh that is a uh authority of a superior court which cannot be taken away by the government or just transferred to somebody else. Uh and it's not satisfactory to say, well, I guess there'll be some political implication if you decide to pass sub-legislation uh or have uh government officials making decisions that are unreasonable or may or may not be in accordance with the legislation. It's not sufficient to say, yeah, there might be a political consequence to those kinds of actions. That section, section 96 of the Constitution Act, uh guarantees things, including uh the power of Superior Court judges to conduct judicial reviews. And uh a judicial review is not just on jurisdiction, it cannot be the case that the government can just legislatively, like section 66 would have provided, to say, well, you just cannot review uh the facts found or the law uh determining whether, for example, a decision was reasonable. You're just not allowed to take that away by just inserting that provision into a piece of legislation. Uh and so it's important, I guess I would say that, uh, this decision. And it goes well beyond uh the narrow facts of the case. Uh it just makes clear that there is a constitutional right to judicial review bound up in that uh concept of the rule of law, uh, and you cannot uh substitute the fact that there could be a political consequence, uh, and you're not allowed to just insert uh some legislative provision that says you can't challenge this. I must say, sometimes you see those sort of things in legislation, you're sort of like, really? Did you really think that's how this was going to work out? Did you really think you could just insert some provision that says, you know, this can't be challenged effectively? Did you think that was going to carry the day? And so we now have clear authority from the Supreme Court of Canada uh defining uh what uh the scope of judicial

What The Supreme Court Decision Unlocks

Michael Mulligan 19:05

review is and the fact that that is one of the core uh functions of a superior court uh judge, uh, and by oper by necessary implication, Section 96 of the Constitution Act doesn't allow the government to limit or prevent that. Uh and so, with the benefit of that finding, the case has now been sent back uh so that there can be an assessment uh of whether the decision made by the conflict of interest commissioner uh was lawful, uh, and uh the court uh will have clear authority to do that. So that's the latest from the Supreme Court of Canada, uh the case brought by Democracy Watch in uh a decision that will have uh bigger implications in terms of how government can be held uh to uh ensure that their decisions are lawful, reasonable, and uh within their jurisdiction.

Adam Stirling 19:55

Michael Mulgan with Mulgan Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Thanks so much for the time. Pleasure as always. Thanks so much. Always great to be here.