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| {{REVIEWED LSLAP | date= August 14, 2020}} | | {{REVIEWED LSLAP | date= August 12, 2021}} |
| {{LSLAP Manual TOC|expanded = mentalhealth}} | | {{LSLAP Manual TOC|expanded = family}} |
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| == A. Income Assistance ==
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| Mentally ill persons may be eligible for benefits under the Persons with Disabilities (PWD) or Persons with Persistent and Multiple Barriers to Employment (PPMB) designations. Qualification requirements are strict, but decisions concerning eligibility can be negotiated with the Ministry of Employment and Income Assistance or, if need be, appealed. Generally, a doctor must fill out a special form indicating that the person qualifies. Disability Alliance BC assists with applications and appeals (for further details, see [[Introduction to Welfare (21:I) | Chapter 21: Welfare Law]]). There may be strict deadlines for these applications so it is important to not delay in these cases.
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| == B. Employment/Disability Income == | | == A. Family Law Act == |
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| If a person cannot work because of mental health issues, the person may be entitled to employment insurance, disability benefits, or CPP disability benefits, or WCB benefits if the mental illness is work related. For information on CPP disability benefits, see [[{{PAGENAME}}#D. Canada Pension Plan | Section IV.D: Canada Pension Plan]], below. Be aware that there are strict time limits involved when applying for these benefits.
| | Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act. |
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| If a person is hospitalized in a psychiatric facility because of an injury at work, they may be eligible for WCB benefits. Please contact the Workers Advisory Group through CLAS for more information, or refer to [[Introduction to Workers' Compensation (7:I) | Chapter 7: Workers' Compensation]].
| | Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court. |
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| == C. Employment Insurance ==
| | There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection |
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| Individuals either voluntarily or involuntarily admitted to a psychiatric facility may still be eligible to collect Employment Insurance benefits. However, the ''Employment Insurance Act'', SC 1996, c 23 is a very complicated piece of legislation, detailing numerous requirements to qualify for benefits (e.g. number of hours worked, previous claims, unemployment rate, etc.). If a person is denied benefits, it is best to consult the Act directly as a first step or to contact a lawyer knowledgeable in the issues (e.g. CLAS). Be aware that there may be strict timelines in applying for benefits or appealing a denial of benefits. For more information, please consult [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]].
| | Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)). |
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| == D. Canada Pension Plan ==
| | Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued. |
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| Long-term patients may apply for disability pensions. A claim takes four or five months to process. Hospitalization does not affect a person’s right to collect a pension and it is possible to receive CPP benefits for periods of time when an individual was hospitalized. Disability Alliance BC assists people with these applications if they reside in the community. For people who are hospitalized, contact the hospital social worker to assist with these applications as strict time limits may apply.
| | == A. Divorce Act == |
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| == E. Driving ==
| | Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes. |
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| A mental disorder does not automatically disqualify a person from driving. The Superintendent of Motor Vehicles or a person authorized by the Superintendent does have the discretion to deny a licence to those deemed “unfit” under s 92 of the ''Motor Vehicle Act'', RSBC 1996, c 318. This decision is based on [https://www.bcma.org/files/2010_BC_Fitness%20to%20Drive_Guide.pdf The 2010 BC Guide in Determining Fitness to Drive]. Chapter 6 of that guide provides assessment policies and procedures. Assessments of cognitive function can be requested (see section 6.6 of the Guide). Chapter 19 of the Guide discusses Psychiatric Disorders while Chapter 27 discusses cognitive impairment (including dementia). Appeals can be made to the Superintendent, but only where medical reports were not properly interpreted, where proper allowances were not made for surgical procedures that the applicant was undergoing, or where the physician has not properly reported the patient’s medical condition. An appeal may also require that the appellant undergo examination and/or testing.
| | Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse. |
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| == F. The Right to Vote ==
| | Under the amended Divorce Act, family violence is a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA). |
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| Both voluntary and involuntary patients in mental health facilities have the right to vote. This has been the case since ''Canada (Canadian Disability Rights Council) v Canada'' (1988), 3 F.C 622, where it was decided that a person is not disqualified from voting on the basis that a committee has been appointed for them. Polling stations are normally set up at long-term psychiatric care facilities; because enumeration also takes place at the facility, patients must vote in the riding where the hospital is located.
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| == G. Human Rights Legislation ==
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| Under both BC and federal human rights legislation, it is illegal to discriminate with regard to housing, employment or services available to the public against a person who is mentally ill. For information on launching a human rights complaint, see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]]. | |
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| == H. Civil Responsibility ==
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| In general, mental incompetence or disability is no defence to an action for intentional tort or negligence. However, where a certain amount of intent or malice is required for liability, the fact that the defendant lacked full capacity to understand what they were doing may relieve them of liability. A defendant who lacks the ability to control their actions will not be liable. Involuntary actions do not incur liability. Anyone responsible for the care of a mentally ill person may be held responsible if the plaintiff proves a failure to take proper care supervising the person.
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| In civil suits, a guardian ''ad litem'' may be appointed to start or defend an action where a mentally ill person is a party and lacks the capacity to commence or defend that action. A person involuntarily detained under the MHA appears to meet the definition in the BC Supreme Court Rules of Court of a person under a legal disability for filing or defending a court action. Therefore, the person would need to proceed through a guardian ''ad litem''. The guardian ad litem could be a friend or a relative of the person, but could also be an organization, or another individual chosen and appointed by the court.
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| Additionally, any person found not criminally responsible by reason of a mental disorder under the ''Criminal Code'' may not be liable for damages as a result of the offence.
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| == I. Immigration and Citizenship ==
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| Section 38 of the ''Immigration and Refugee Protection Act'' deals with inadmissibility on health grounds. Pursuant to s 38(1)(c), foreign nationals will be inadmissible if they “might reasonably be expected to cause excessive demand on health or social services.” This rule could potentially present a bar to admission for individuals determined to be developmentally delayed or those with a history of mental illness. However, s 38(2) lists certain exceptions. If a person may be classified as (a) a member of the family class and the spouse, a common law spouse, or a child of a sponsor; (b) a refugee or a person in similar circumstances; (c) a protected person, or; (d) where prescribed by regulation, one of their family members, that person will be exempted from the rule under section 38(1)(c).
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| == J. The Charter ==
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| Sections 7 (the right to liberty), 9 (the right to protection against arbitrary detention) and 15 (the equality provision) of the ''Charter'' are particularly relevant to protecting the rights of the mentally ill. Rights protection provisions may also be applicable, including section 12, which concerns cruel and unusual punishment.
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| ''Fleming v Reid'', (1991) OR (2d) 169 at paras 52-59 dealt with the impact of section 7 on provisions of Ontario’s mental health legislation. Mentally competent involuntary patients refused treatment despite their doctors’ opinions that it would be in their best interest. The Court held that the section of Ontario’s ''Mental Health Act'', RSO 1980, c 262 that allowed a Review Board to override the refusal for treatment made by a substitute consent-giver of an involuntary patient based on the patient’s prior competent wishes violated the right to security of the person and was not in accordance with the principles of fundamental justice. However, the effect this case will have on BC’s legislation is yet to be determined.
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| In ''Mazzei v British Columbia (Director of Adult Forensic Psychiatric)'', 2006 SCC 7 at paras 46-47 [''Mazzei''], it was decided that Review Boards have the power to issue binding orders to parties other than the accused. This power is usually exercised on the director of a hospital party to the proceedings, to whom the Review Board cannot dictate a specific treatment, but can impose conditions regarding treatment. This power was granted to ensure that treatments are culturally appropriate. In ''Mazzei'', conditions were imposed regarding drug and alcohol rehabilitation to ensure that the process was appropriately adjusted to the individual’s First Nations’ ancestry.
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| A more recent Supreme Court decision, ''R v Conway'', 2010 SCC 22 at para 78 [''Conway''] responded to the issue of whether the Ontario Review Board (ORB) has the authority to grant remedies under section 24(1) of the ''Charter''. The challenge was brought by Paul Conway, an individual found not responsible by reason of a mental disorder in 1983. He argued that his treatment and detention violated his ''Charter'' Rights, and therefore entitled him to an absolute discharge. The Supreme Court developed a test to determine whether an administrative tribunal is authorized to grant ''Charter'' remedies. The Supreme Court ruled that pursuant to section 24(1), the ORB is a “court of competent jurisdiction”, but that an absolute discharge was not a remedy that could be granted by the ORB under the particular circumstances. Ultimately, the ''Conway'' decision affirms the application of the Charter to administrative tribunals, including MHA Review Boards. However, this decision limits the scope of available remedies under section 24(1) to those that have been specifically granted to a given body by the legislature. In ''Conway'', the Review Board could make a determination that the provision was unconstitutional, but did not have the authority to strike it down.
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| In another case in which CLAS acted as an intervener (''Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society'', (2012) 2 SCR 524 at paras 73-74) opened the door for groups of individuals to bring ''Charter'' challenges. In this case sex workers were granted public standing as a group to bring ''Charter'' challenges. This decision impacts mentally ill people as well. It means that in the future, patients that are detained in mental health facilities could bring ''Charter'' challenges as a group, rather than being forced to do so on an individual basis. Organizations can start an action on behalf of a group of vulnerable people if there is no other way for the issue to be brought in front of a court.
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| == K. Legal Rights of Those in Group Homes ==
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| Throughout the greater Vancouver area there are many “group homes” run by and/or for mentally ill persons who do not need to be confined in a provincial mental health facility. Additionally, "Supportive Apartments" are a new tool government has been using. These homes, run by groups such as COAST and the Motivation, Power, and Achievement Society (MPA), are governed by the ''Community Care and Assisted Living Act'', SBC 2002, c 75. Foster homes and group homes of the provincial government fall under different Acts: the ''Child, Family and Community Service Act'', RSBC 1996, c 46 and the ''Hospital Act'', RSBC 1996, c 200.
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| These types of homes have some interesting interactions with the ''Tenancy Act'', in that they may or may not be covered on a case by case basis. There is no definitive answer at this point - individuals in group homes with tenancy issues can contact CLAS or seek other legal help.
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| Municipalities often place restrictions on the location of group homes. A Winnipeg bylaw requiring a minimum distance between group homes was struck down for violating s 15 of the ''Charter'' (''Alcoholism Foundation of Manitoba v The City of Winnipeg'' (1990), 69 DLR (4th) 697 (Man. C.A.)).
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