Governing Legislation and Resources for Mental Health (14:II)

This chapter deals with the legal issues that may arise due to a person’s mental disorder. By ‘mental disorder’, we are referring to the range of illnesses and disorders dealt with by psychiatry. It is important to keep in mind that mental illness is not the same as mental incapacity. For legal matters concerning mental incapacity, please consult Chapter 15: Guardianship.

For purposes of this Chapter, the most important statute is the Mental Health Act, RSBC 1996, c 288 [MHA]. Other legislation which may have relevance is listed Part B of this introduction, “Governing Legislation and Resources”. If you are asked for advice with respect to a person who has come into conflict with the law and shows signs of psychiatric disturbance, you may also need to review the Forensic Psychiatry Act, RSBC 1996, c 156 [FPA].

This chapter provides a very general overview of the rights of persons with mental illnesses, either as patients inside a mental health facility or as persons outside such a facility. The discussion of mental health law is intended to provide the reader with a general framework to use to offer advice, or as a basis for further research. An excellent resource for further information or referrals is the Community Legal Assistance Society (CLAS). CLAS runs a mental health law program that represents individuals at hearings before the BC Criminal Code Review Board, under Part XX.1 of the Mental Disorder provisions of the Criminal Code of Canada and the BC Mental Health Review Board under the MHA. BC Review Board Hearings, and BC Mental Health Act tribunal hearings. CLAS also provides legal information and identifies potential test cases. See Chapter 22: Referrals for CLAS contact information.

A. Client Intake

In BC there is a presumption that all adults are capable of making their own decisions unless the contrary is demonstrated. Behind a mental disorder may be a person with a genuine legal issue that needs to be addressed. It is therefore important not to dismiss a person because they have or are suspected of having a mental disorder. Listen to their story to assess whether a legal problem exists.

A mental health diagnosis or suspected mental health problem does not necessarily mean that the adult is incapable of obtaining and instructing legal counsel. There is a different standard of capacity for each different legal act. For example, in order to make a will, the testator must know the natural objects of his or her bounty (i.e. the expected beneficiaries), understand the nature and extent of his or her property and to be able to combine these elements in order to rationally dispose of his or her property. However, the testator need not be able to conduct other business or legal transactions. On the other hand, in order to enter into a contract, the client must understand the nature and effect of the act and the business being transacted.

The capacity required to instruct counsel requires that the client understand the roles of client and solicitor, can understand the information relevant to making a decision and have the ability to appreciate the foreseeable consequences of that decision. Since this is a legal test, students are unable to make this determination on their own. Any concerns should be brought to the program supervising lawyer’s attention. However, without meeting the client in person, the program supervising lawyer will be unable to make a capacity determination. Students are encouraged to contact CLAS for assistance and, if necessary, refer the client to CLAS or another legal service.

Where no legal issue exists, remember that the client may be seeking help for a variety of matters from someone they feel they can trust. In these situations referrals to mental health services may be appropriate. You may also wish to provide mental health referrals, such as counselling, for clients to whom you are providing on-going legal assistance. Dealing with legal issues can be stressful and upsetting for all people. Clients may find seeing a counsellor is a helpful way to develop emotional coping strategies, to pinpoint their ideal outcome from a legal process, and to organize their thoughts in order to provide clear and concise information and evidence in the legal process. B.Governing Legislation and Resources 1.Legislation Adult Guardianship Act, RSBC 1996, c 6 [AGA]. Adult Guardianship and Planning Statutes Amendment Act, S.B.C 2007, c 34 [AGPSAA]. Criminal Code of Canada, R.S 1985, c. C-46 (Part XX.1, Mental Disorder provisions) [CCC] Forensic Psychiatry Act, RSBC 1996 c 156 [FPA].