Mental Health Law and Legal Rights (14:IV)

A. Income Assistance

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 appealed. Disability Alliance BC assists with applications and appeals (for further details, see Chapter 21: Welfare Law). There may be strict deadlines for these applications so it is important to not delay in these cases.

B. Employment/Disability Income

In Fenton v Forensic Psychiatric Services Commission, (1991), 56 BCLR (2d) 170 (CA), the Court of Appeal overturned a BC Supreme Court decision that struck down provisions of the Employment Standards Act, RSBC 1996, c 113 that allowed employers to pay employees with mental health issues less than minimum wage while working under a work rehabilitation program. Leave to appeal to the Supreme Court of Canada was refused.

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 Section IV.D: Canada Pension Plan, below. Be aware that there are strict time limits involved when applying for these benefits.

If a person is hospitalized in a psychiatric facility because of an injury at work, he or she may be eligible for WCB benefits. Please contact the Workers Advisory Group through CLAS for more information.

C. Employment Insurance

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 client 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. Consult Chapter 8 for more information about Employment Insurance.

D. Canada Pension Plan

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. The British Columbia Coalition of Persons with Disabilities 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.

E. Driving

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 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.

F. The Right to Vote

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 him or her. 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.

G. Human Rights Legislation

Under both BC and federal human rights legislation, it is contrary to human rights 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 Chapter 6: Human Rights.

H. Civil Responsibility

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 he or she was doing may relieve him or her of liability.

A defendant who lacks the ability to control his or her 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.

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.

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.

I. Immigration and Citizenship

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 member of the family class and the spouse, common law spouse, or child of a sponsor; a refugee or a person in similar circumstances; a protected person, or; where prescribed by regulation, one of their family members, that person will be exempted from the rule under s 38(1)(c).

J. The Charter

Sections 7 (the right to liberty), 9 (the right to protection against arbitrary detention) and 15 (the equality provision) are particularly relevant to protecting the rights of the mentally ill. Rights