Deemed Consent to Psychiatric Treatment in BC
In BC a person may be involuntarily admitted to a psychiatric facility under the Mental Health Act (“MHA”), and treated without any need to obtain consent, if a doctor is of the opinion that the person “has a disorder of the mind that requires treatment and seriously impairs the person’s ability to react appropriately to the person’s environment, or associate with others,” and that the person:
- requires treatment in or through a designated facility,
- requires care, supervision and control in or through a designated facility to prevent the person's or patient's substantial mental or physical deterioration or for the protection of the person or patient or the protection of others, and
- cannot suitably be admitted as a voluntary patient.
The MHA states, “treatment authorized by the director [of the designated facility] is deemed to be given with the consent of the patient.”
Most of the time in BC, the Health Care Consent Act (“HCCA”) provides a general presumption of capacity and enshrines a set of health care decision-making rights. These rights include: the “the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,” “the right to revoke consent,” and “right to expect that a decision to give, refuse or revoke consent will be respected.”
People who have been involuntarily admitted to a psychiatric facility under the MHA are exempted from these protections afforded by the HCCA. This prevents one from consenting to or refusing psychiatric treatment once one has been involuntarily admitted, even if one has not been found to lack the capacity to make health and personal care decisions. It also prevents one from using an advance directive (made while one is capable and not subject to involuntary admission) to give or refuse consent to psychiatric treatment if one is later involuntary admitted.
If one has been involuntarily admitted to a psychiatric facility, but one has previously appointed a personal representative under the Representation Agreement Act (“RAA”), that representative is similarly unable to refuse psychiatric treatment on one’s behalf while one remains involuntarily admitted.
If one does not have a personal representative or advance directive, the HCCA generally requires the consent of a statutorily selected substitute decision-maker before medical treatment can be administered in a situation where one lacks the capacity to consent or refuse. However, as noted above, the HCCA does not apply to people who have been involuntarily admitted.
Taken together the MHA, HCCA, and RAA preclude any possibility of consenting to or refusing psychiatric medical treatment in the context of involuntary admission in British Columbia. Instead, any such opportunity has been replaced by deemed consent.
The net effect is that people in BC are currently unable to rely on: their own capably expressed wishes and beliefs, an advance directive, a representative appointed under a representation agreement, or a substitute decision-maker to speak for them concerning psychiatric treatment decisions in the event of involuntary admission. This approach is unique in Canada and has not been without controversy; a Charter of Rights and Freedoms based challenge was launched in 2016.