Difference between revisions of "Mental Health Theory and Approach (14:III)"
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Admission to a mental health facility can seriously affect an individual’s rights. Textbooks have advocated a “functional” approach to mental health law, encouraging courts to consider only how the disability may relate to the specific issue brought before them. Incapacity in one area does not necessarily mean incapacity in all areas. Most mental health legislation, however, is over-inclusive, and therefore impairs the rights of mentally ill persons in areas where they might have the mental capacity to act for themselves. | Admission to a mental health facility can seriously affect an individual’s rights. Textbooks have advocated a “functional” approach to mental health law, encouraging courts to consider only how the disability may relate to the specific issue brought before them. Incapacity in one area does not necessarily mean incapacity in all areas. Most mental health legislation, however, is over-inclusive, and therefore impairs the rights of mentally ill persons in areas where they might have the mental capacity to act for themselves. The common-law tests for capacity can be found in Chapter 15: Adult Guardianship | ||
Section 15(1) of the ''Canadian Charter of Rights and Freedoms'' [''Charter''] has made it easier to preserve the rights of those affected by mental health law, as was demonstrated in Starson v Swazey, 2003 SCC 32. However, most discriminatory legislation in BC remains unchallenged, including the MHA "deemed consent provisionsÈ and the Health Care Facilities Act "substitute decision making". All ''Charter'' challenges have been directed towards either the MHA or the ''Criminal Code''. The Community Legal Assistance Society may be able to assist with serious ''Charter'' challenges, including test litigation. | |||
Revision as of 19:46, 19 October 2016
Admission to a mental health facility can seriously affect an individual’s rights. Textbooks have advocated a “functional” approach to mental health law, encouraging courts to consider only how the disability may relate to the specific issue brought before them. Incapacity in one area does not necessarily mean incapacity in all areas. Most mental health legislation, however, is over-inclusive, and therefore impairs the rights of mentally ill persons in areas where they might have the mental capacity to act for themselves. The common-law tests for capacity can be found in Chapter 15: Adult Guardianship
Section 15(1) of the Canadian Charter of Rights and Freedoms [Charter] has made it easier to preserve the rights of those affected by mental health law, as was demonstrated in Starson v Swazey, 2003 SCC 32. However, most discriminatory legislation in BC remains unchallenged, including the MHA "deemed consent provisionsÈ and the Health Care Facilities Act "substitute decision making". All Charter challenges have been directed towards either the MHA or the Criminal Code. The Community Legal Assistance Society may be able to assist with serious Charter challenges, including test litigation.