Forced Treatment And The Charter

 

A government can detain someone for mental health reasons, but can it also force treatment without first asking a harder question: are they actually capable of deciding for themselves? We walk through a major British Columbia decision on involuntary treatment under the Mental Health Act, where the court finds a section 7 Charter breach because director-approved treatment can override a patient’s wishes without a meaningful capacity process. Along the way, we unpack why consent, bodily autonomy, and dignity are not optional extras in Canadian health law, even when the patient is involuntarily hospitalized.

We also dig into what changed midstream, including the repeal of “deemed consent”, and why that still didn’t fix the underlying problem. BC stands out compared with other provinces that use capacity assessments, advance directives, representation agreements, or substitute decision-makers to navigate informed consent and psychiatric care. The court suspends its ruling for six months, putting pressure on the province to amend the legislation or consider an appeal, while leaving the policy design to elected lawmakers.

Then we pivot to a Supreme Court of Canada ruling with national impact: Parliament cannot legislatively prevent judicial review of administrative decisions. Using the WE Charity conflict of interest complaint and Democracy Watch’s challenge as the backdrop, we explain how the rule of law and section 96 of the Constitution Act protect the superior courts’ core role in reviewing whether government power is exercised lawfully and reasonably. If you care about mental health rights, government accountability, and the real meaning of the rule of law in Canada, this one connects the dots. Subscribe, share the episode, and leave a review, then tell us: where should courts draw the line on state power?

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.