Right to Legal Representation in Mental Health Act Detentions
One area of legal aid which is chronically underfunded is legal aid for involuntary patients seeking a review of their detention under the Mental Health Act. When an individual is involuntarily detained, they lose a fundamental right to make their own decisions about their medical treatment and as a result, may be physically confined in a hospital and forcibly medicated. In these circumstances where there is a loss of liberty and security of the person, s.7 of the Canadian Charter of Rights and Freedoms guarantees involuntary patients the right to a fair hearing – which for most involuntary patients necessitates legal representation. Where an involuntary patient requires a lawyer in order to have a fair hearing and cannot afford to hire a lawyer on their own, the government has an obligation under the Charter to provide that person with a state-funded lawyer – in other words, free legal representation.
BCPIAC, along with pro bono counsel Mark Underhill, were pleased to represent Z.B., a BC woman who had been involuntarily detained under the Mental Health Act and denied legal aid representation at her Review Board hearing, due to chronic legal aid underfunding. Z.B. brought the case not just for herself, but for all people in such circumstances. She won a significant victory when the government negotiated a settlement to her case that saw increased funding sufficient that all people detained under the Mental Health Act now have access to legal aid representation.
More on Mental Health Legal Aid
BC woman’s Charter challenge forces provincial government to provide legal representation to all people detained under the Mental Health Act