Верховный суд Британской Колумбии указал на необходимость пересмотра законодательства о деменции

Opinion: B.C. Supreme Court opened the door. It’s time to revisit dementia and mental health law Heather Campbell Pope: The recent B.C. case brings renewed attention to an unresolved issue: Should dementia bring a person within a legislative framework designed primarily for psychiatric detention and treatment? Article content Last month, the B.C. Supreme Court found that the province’s approach to authorizing involuntary psychiatric treatment is unconstitutional. The decision is a landmark victory for patient rights. For elder justice advocates, the case also presents an opportunity to revisit an unresolved question that B.C. confronted more than three decades ago: Should dementia bring a person within the Mental Health Act? During a 1993 legislative debate on guardianship legislation, an MLA asked whether Alzheimer’s disease was captured by the Mental Health Act. The attorney general responded: “One is almost never committed as a result of Alzheimer’s, so we are talking about something else here.” Recommended Videos But over the years, a different story unfolded: People with dementia were being involuntarily detained and forcibly treated under the statute, sometimes in circumstances where the primary concern was not psychiatric treatment but securing admission to a care home when the person or their substitute decision-maker objected to the move. In 2012, the B.C. ombudsperson raised concerns, reporting that at least 100 older adults in residential care were involuntary patients under the Act. Likewise, in 2017, the Community Legal Assistance Society’s report Operating In Darkness highlighted concerns that although mental health legislation is generally associated with conditions such as schizophrenia and bipolar disorder, it was increasingly being used against older adults with dementia for reasons extending beyond psychiatric treatment. In one case, a care home raised concerns after an older woman with Alzheimer’s disease experienced changes in her behaviour, including agitation, disrupted sleep, and entering other residents’ rooms. When the care home proposed nighttime sedation and her substitute decision-maker refused, the dispute shifted to whether the Mental Health Act should be used to certify the woman as an involuntary patient, thereby authorizing her transfer to a psychiatric unit for detention and treatment without consent. In 2022, an estimated 85,800 people in B.C. were living with dementia, a number projected to increase to almost 250,000 by 2050. Alzheimer’s disease, the most common form of dementia, accounts for approximately 60 to 70 per cent of cases. Given these figures, the question of how the law should respond to dementia-related behaviours is still relevant, 33 years after it was raised in the legislative assembly. To its credit, the province responded in 2019 by bringing into force reforms that established a consent-based process for admission to residential care. However, the changes did not resolve the broader question of whether mental health legislation is an appropriate mechanism for responding to the care and housing needs that may arise when someone is living with dementia. Other jurisdictions have grappled with this issue and have at times drawn the line differently. In two Australian decisions from the 1980s, a New South Wales judge found that dementia was not a mental illness within the meaning of its mental health legislation, and therefore, the individuals with dementia could not be involuntarily detained in a psychiatric hospital solely on that basis. Instead, their care needs were to be addressed through guardianship legislation and residential care, where appropriate. These decisions predate advances in our understanding of dementia, but the core question remains relevant: whether dementia should bring a person within a legislative framework designed primarily for psychiatric detention and treatment. The recent B.C. case brings renewed attention to this issue. The court found that the province’s deemed consent approach violates the Canadian Charter of Rights and Freedoms. The law permits psychiatric treatment of involuntary patients without regard to their capacity to make treatment decisions. The judgment, however, does not resolve the separate question of whether dementia should fall within the Act’s scope. The court suspended its declaration of constitutional invalidity for six months to give the province time to consider its response. As lawmakers undertake this work, they should also examine the long-standing tension between dementia care and mental health law to address an issue raised decades ago: When, if ever, is the Mental Health Act an appropriate tool for responding to dementia-related needs? Heather Campbell Pope is a lawyer and founding chair of Dementia Justice Canada.