B.C. woman hospitalized involuntarily gets legal aid for mental health hearing

By The Canadian Press
August 15, 2016 - 3:06pm

VANCOUVER — A British Columbia woman hospitalized against her will under the Mental Health Act has won a legal battle with the provincial government over her right to have a publicly funded lawyer argue for her release.

The provincial government announced Monday it would provide the 39-year-old woman with a lawyer at an upcoming review of her detention after she filed a lawsuit in B.C. Supreme Court late last week.

The woman, whose name is protected by a publication ban, argued she had a constitutional right to representation in court after legal services informed her it didn’t have the resources to provide her with a lawyer until October at the earliest.

That legal challenge is no longer going forward, but arguments are still expected to be heard in late September on the more general constitutional question around entitlement to legal representation at Mental Health Review Board hearings.

“I don’t know how anybody in a civil society could say, ‘Oh yes, that’s OK. These people don’t need help,'” said Mark Underhill, one of the lawyers representing the woman. “To me it’s as close you come to a no-brainer as there is.”

Court documents said the woman, who has suffered from mental health challenges since her early 20s, was involuntarily detained in July after checking herself into the emergency room of a Nanaimo hospital looking for help during a mental health crisis.

At the time of her detention she was unemployed, homeless and subsisting on about $500 a month in disability benefits, said the documents.

The woman has a hearing on Aug. 23 before the Mental Health Review Board, a three-person panel that must assess whether the provincial government has met the legal threshold for holding someone against their will. The province has said she will have a lawyer working on her case, but advocates argue the broader questions around access to justice remain unanswered.

“This is clearly a human rights issue,” said Kate Feeney of the B.C. Public Interest Advocacy Centre.

“Any delay is really unacceptable when your fundamental liberty interests are at play and you’re being hospitalized and medicated potentially against your will.”

Feeney described the lack of resources for legal aid as a systemic failure against society’s most vulnerable people stemming from chronic underfunding dating back to 2009.

It affects hundreds of people annually, she said.

Underhill said the solution would likely cost under $1 million.

“When the solution is not a big ask the question needs to be asked of the government, ‘Why aren’t you fixing this?'” he said.

“Why on God’s green Earth would you let it drag out in court and not just come to the table and figure out a way to get these people help?”

Both lawyers have agreed to take on the access-to-justice case pro bono.

— Follow @gwomand on Twitter

Geordon Omand, The Canadian Press

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