BC woman’s Charter challenge forces provincial government to provide legal representation to all people detained under the Mental Health Act

For Immediate Release | BCPIAC

Please note, there is a court-ordered publication ban in place

VANCOUVER, B.C. – A BC woman known as Z.B. has won an important legal victory ensuring that everyone detained under the Mental Health Act has access to legal representation when their continued detention is under review. The BC government has settled Z.B.’s Charter challenge by agreeing to adequately fund legal aid for individuals detained under the Mental Health Act.

mental-health-legal-aid-victory-2-300x300 BC woman’s Charter challenge forces provincial government to provide legal representation to all people detained under the Mental Health ActIn August 2016, Z.B., who was then involuntarily detained and hospitalized, launched a Charter challenge arguing that she had a constitutional right to legal representation at her review hearing. Z.B. could not afford a lawyer and had requested legal aid from the Community Legal Assistance Society (CLAS), which contracts with the government to provide legal aid to involuntary patients. Although Z.B. was eligible to receive legal aid, CLAS had no choice but to deny her request solely because it did not have capacity to provide her with representation at the time of her hearing. It is well documented that the BC government has chronically underfunded legal aid for many years, such that CLAS has been forced to deny legal aid to hundreds of eligible involuntary patients every year since approximately 2009.

On the same day that Z.B. launched her Charter challenge, the BC government agreed to provide her with legal aid for her review hearing. However, Z.B. was determined to help other involuntary patients, who can be not only detained against their will but also forcibly medicated, and demanded a systemic response to her case. In December 2016, after months of negotiations, the BC government agreed to provide CLAS with additional annual funding to enable them to provide legal representation without delay to all involuntary patients who want legal aid for their review hearings and are financially eligible to receive it.

Kate Feeney, a staff lawyer at the BC Public Interest Advocacy Centre (BCPIAC) and counsel for Z.B., states, “We want to thank Z.B. for taking on this case and for sharing her very personal story with the public. Her courage during a difficult time in her life resulted in a remarkable systemic solution after years of government inaction.”

“Few rights are more fundamental to human liberty than freedom from unconstitutional or arbitrary detention…”

Caily DiPuma, Acting Litigation Director at the B.C. Civil Liberties Association (BCCLA), which has been a supporter of this case, states: “Few rights are more fundamental to human liberty than freedom from unconstitutional or arbitrary detention – including the right to be free from forcible medical interventions. The outcome in this case ensures that British Columbians involuntarily detained under the Mental Health Act receive adequate legal representation as guaranteed by the Charter of Rights and Freedoms.”

BC woman launches challenge for right to legal representation in Mental Health Act detentions

For Immediate Release | BCPIAC

Please note, there is a court-ordered publication ban in place

VANCOUVER, B.C. – On Friday, August 12, 2016, Z.B., a woman currently detained in hospital as an involuntary patient under the Mental Health Act, launched a legal challenge in the B.C. Supreme Court, arguing that she has the constitutional right to a government-funded lawyer at an upcoming review of her detention.

Z.B. has asked the Court to grant an injunction requiring the Province to provide her with a lawyer for her Mental Health Review Board hearing on August 23, 2016. Her full constitutional arguments will be heard at a later date.

Z.B. cannot afford to hire a lawyer and had requested legal aid representation from the Community Legal Assistance Society (CLAS), which contracts with the Legal Services Society to provide legal aid for Review Panel hearings. Despite her eligibility for legal aid, CLAS denied her request because it did not have a lawyer available to represent her at the time of her hearing.  Since 2009, it is well-documented that CLAS has been chronically under funded by the provincial government in this critical area, such that it is not able to meet the demand for its services.

Mark Underhill, a partner with Underhill Gage Litigation and lead counsel for Z.B., states “Z.B. has a constitutional right to a fair hearing to challenge her detention.  In her case, there is no serious question that she requires legal representation to have any chance at a fair hearing.”

Kate Feeney, a staff lawyer at the BC Public Interest Advocacy Centre (BCPIAC) and counsel for Z.B., states, “the BC government’s ongoing failure to meet its legal aid obligations to involuntary patients has put Z.B. in the unacceptable position of having to fight for her right to lawyer during an exceptionally difficult time in her life.”

Grace Pastine, Litigation Director at the BC Civil Liberties Association, stated: “Most involuntary patients do not have the capacity to represent themselves at Mental Health Review Board hearings. These hearings are complex and almost all involuntary patients have or are perceived to have mental health problems. Many are also dealing with the side effects of psychiatric treatments such as mind-altering psychotropic drugs and electroconvulsive shock therapy.”

As Commissioner Leonard T. Doust, QC said in his 2011 report “Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia,” for those individuals trying to navigate the Mental Health Act hearing process without legal representation, “[i]t almost goes without saying that this is a profound violation of the rights of one of the most vulnerable segments of our community”.  [emphasis added]

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