Difference between revisions of "Mental Health Law and Legal Rights (14:IV)"

Under both provincial 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]].

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.  

Section 38 of the [https://laws.justice.gc.ca/eng/acts/i-2.5/ ''Immigration and Refugee Protection Act''] [''IRPA''] deals with inadmissibility on health-related 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.  

A more recent Supreme Court decision, [https://www.canlii.org/en/ca/scc/doc/2010/2010scc22/2010scc22.html?resultIndex=1 ''R v Conway'', 2010 SCC 22] at para 78 [''Conway''] responded to the issue of whether the Ontario Review Board (ORB) under the Mental Disorder Provisions of the ''Criminal Code'' 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 the ''Criminal Code of Canada', Part XX.1 (Mental disorder provisions)'' provincial 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.  

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.