Compulsory psychiatric treatment is undoubtedly a severe intrusion on a person’s bodily integrity. In the interest of managing risk of harm to the patient and others, when is this intrusion justified, and what degree of intrusion is acceptable? 

A one-size-fits-all approach is not the answer. Proportionality must be achieved for each patient. Currently, BC’s Mental Health Act, RSBC 1996, c 288 (“MHA”) affords physicians discretion to structure a treatment plan and to compel adherence to that plan where necessary. The plaintiffs in MacLaren, DC, and Council of Canadians with Disabilities v. Attorney General of BC (“MacLaren”)¹ claim this model is not working, and patient rights are too often compromised for a low risk of harm. The case contends that the compulsory medication provisions of the MHA infringe patients’ liberty and equality interests per ss. 7 and 15 of the Charter. The plaintiffs call for clearer guidance in the legislation itself. 

Proportionality is required by s. 7 of the Charter,² by s. 1 of the Charter should any provision of the MHA be found contrary to ss. 7 or 15,³ and by the UN Convention on the Rights of Persons with Disabilities, which Canada has ratified.⁴

But how to ensure proportionality in practice?

Patients who lack insight into their condition and refuse voluntary treatment pose a conundrum for mental health practitioners. Mental health disorders often prevent patients from appreciating a need for, or potential benefit from, treatment. Lack of insight may differ from incapacity, but in practice, the inability to appreciate the impact of a disorder can impair a patient’s ability to make an informed decision about treatment options. The potential for advanced deterioration from a disorder due to lack of insight and treatment for patients in systems relying on substitute decision-makers is one reason BC may not wish to follow in Ontario’s footsteps.

Additionally, mental health conditions can be unpredictable. Mental health disorders are not all progressive, nor do they manifest in the same way for all patients. Even when the statistical risk of harm associated with a particular diagnosis is low, the magnitude of the consequences for ignoring the risk is such that suspicion cannot be avoided entirely.⁵ Complicating matters further, patients that do pose a risk of harm to others are not always easily discernable from those that do not. 

Treatment pursuant to involuntary certification may reduce the degree to which a mental health disorder interferes with a patient’s life, and reduce risk of harm to self and others. Still, these benefits come at the cost of restricting autonomy, which may in turn engender distrust of the health care system, reduce effectiveness of therapy by disincentivizing honest discourse between patient and psychiatrist, and perhaps even inhibit the amelioration of the patient’s mental health.

If the methodology for assessing proportionality is to be adopted into legislation, what factors should be included? Should physicians consider risks to the patient’s financial and social wellbeing, or only risks to others? What role should side-effects and the patient’s tolerance for side-effects play? Who should make treatment decisions for patient without insight – a psychiatrist, a family member, or patient-appointed representative?

The overriding question is how to formulate these questions into a test that is proportional: that both safeguards the rights of patients to their bodily integrity and liberty and appropriately manages the risks to others and to patients themselves. Whether or not the balance struck by the current iteration of the MHA is the right one will become clear as MacLaren progresses.

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1. BCSC, Vancouver Registry, Court File No. S168364; see also clasbc.net | ↩
2. Canada (Attorney General) v. Bedford [2013] S.C.J. No 72, 3 S.C.R. 1101, para 19 | ↩
3. R. v. Oakes, [1986] 1 S.C.R. 103. | ↩
4. United Nations Convention on the Rights of Persons with Disabilities, adopted 13 December 2006, GA Res 61/106, UN Doc A/Res/61/106 (entered into force 3 May 2008), Article 12(4). | ↩
5. R v de Grood, 2016 ABQB 294, inter alia | ↩