Pause on Bill 22: Mental Health Amendment Act

*** Commentary originally written summer 2020 prior to the pause of Bill 22. Now published for background and context.

After a month of intensive work on Bill 22 with stakeholders and the Ministry of Mental Health and Addictions, the BC Green Caucus is reassured to see a pause in the legislative process that will allow for more wholesome consultation with the people who will be disproportionately impacted by this law.

In short, Bill 22 allows for the involuntary detainment of youth who have been admitted to an emergency room following a drug overdose.

Our caucus appreciates the Minister’s commitment to the wellbeing of children and youth, a goal shared by all British Columbians. However, we had significant concerns about the impact of the legislative language as drafted, and the involvement of First Nations in particular. While we recognize stabilization care can be a necessary and appropriate option in certain cases, we were profoundly concerned about the disproportionate harm the policy would have on Indigenous kids. Until those issues had been addressed, we felt unable to support the passage of the legislation. Instead, we felt the better option was to pause the legislative process at Second Reading so the Ministry could conduct detailed consultation with stakeholders to address the substantive concerns that have been raised before the bill was passed, either through regulations and clinical guidelines or targeted legislative amendments where needed.

The BC Green Caucus MLAs maintained pausing the bill would be the best option to ensure the safeguards were firmly in place to protect against any adverse impacts the new provisions could have on youth, Indigenous youth in particular.

When evaluating the challenges facing people who struggle with drug use in B.C., young people especially, it is clear that we have a gap in services, not a gap in law. Locking up young people against their will is not what the vast majority need in order to recover and heal. What they need is culturally appropriate, youth-specific and youth-friendly voluntary detox, intensive case management, day treatment and community residential treatment - accessible and available where they are, when they are ready.

Specific concerns:

1. Involuntary confinement.

According to the Ombudsperson’s Special Report No. 42, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act, from March 2019, the rates of detentions under BC’s Mental Health Act have been increasing dramatically – rising by approximately 71% between 2005/06 and 2016/17 to over 20,000 detentions annually. Over that same time, the rate of voluntary admissions decreased per capita. As stated in the government's A Pathway to Hope report, BC now has the highest rate of hospitalization due to mental illness and substance use in Canada. In recent years, girls and young women have been the fastest growing population detained under the Mental Health Act.

Indigenous youth are at risk of being disproportionately affected by these involuntary measures, just as they are by other intrusive and coercive state measures such as the child protection and criminal justice systems. In addition, as mentioned, serious concerns have been raised about further traumatization of detainment, systemic racism and lack of cultural appropriateness in our healthcare system.

Section 55 of this bill, for example, details the limits on stabilization care:

A director of a stabilization facility must not detain a youth in the facility by use of any chemical, electronic, mechanical, physical or other means to control or restrict the youth's freedom of movement except

(a) as necessary to protect the youth or others from harm, or

(b) to accommodate the youth in a locked ward or other defined area.

You can’t detain them with chemical, electronic, mechanical, physical means against their will... unless you need to, in which case, the choice is yours.

Anything could be judged potentially harmful in that setting, and of course detained youth who don’t want to be there will try to leave. Those behaviours should be anticipated from a teenager who has just suffered a life threatening overdose and is now being detained against their will, without their parents or legal representation. It is unreasonable and unfair to expect them to respond with patience or diplomacy in that situation, and it is unethical to punish them with chemical, electronic, or mechanical restraints for acting out on the worst day of their life.

Further explanation is needed on why this bill has such a shockingly low threshold for the use of these controls. Other jurisdictions have banned the use of restraints on children and youth altogether, and other acts require a threshold of “imminent bodily harm” before they can be used as a last resort.

What are we talking about when we authorize the use of chemical, electronic, or mechanical controls on children and youth anyways? Are we referring to sedating them, tasering them, and tying them up? That’s how we’re going to respond to their health crisis? That is what we are referring to as care? This is an example of the concern we have with the legislative language.

2. The Declaration on the Rights of Indigenous Peoples Act (DRIPA)

There is a continuum of colonial, paternalistic, and racist policies in this province that have served (regardless of what their defending rationale was at the time of introduction) to segregate and separate Indigenous children from their families and communities. Residential schools, the Sixties Scoop, the millennial humanitarian crisis in the child welfare system...

These policies - which we all now agree are abhorrent - claimed to be in the, quote, “best interest of the child.” Their best interest as decided by the state has a horrific track record.

In our province, the data is clear about the outcomes for Indigenous children in government care. They are less likely to graduate high school and more likely to end up homeless or involved with the justice system. They are at greater risk of abuse, assault, addiction, overdose, and suicide. And they are more likely to have their own children apprehended, perpetuating the cycle of suffering and hardship. The younger children are when they are taken into care, the longer they stay in care, the worse their outcomes. The intergenerational impacts of the system are severe and tragic.

One of our most pressing concerns as it relates to Bill 22 is Section 72 (2) (i) which explicitly authorizes hospital staff to collect personal information about youth and their case for the purpose of sharing it with other government agencies and ministries.

A scenario can easily be envisioned in which an Indigenous youth presents in hospital following an overdose, the Ministry is contacted, the youth is admitted for stabilization, the parents are excluded from their care, and there is a week of detainment for the Ministry to collect information and build a case as to why that youth should be apprehended into government care.

We know the intent is not to contribute to the separation of Indigenous families, it is to ensure the professionals involved in the youth’s care are able to share information relevant to their case so the appropriate services and supports can be provided. But as legislators, it is not our job to write laws for the best case scenario. It is our job to anticipate and protect against the worst, especially on behalf of marginalized or vulnerable demographics.

We need to recognize the abundant evidence available that illustrates how institutional evaluations of Indigenous peoples are frequently biased with values linked to paternalistic, racist, sexist, or ableist biases that centre white, straight, middle class families as the norm.

As currently outlined, available data strongly suggests that Bill 22 could result in another form of detention that is disproportionately used on Indigenous youth. In that sense, the bill appears to undermine BC’s commitments under UNDRIP, the calls to action from the Truth and Reconciliation Commission, and the National Inquiry into Missing and Murdered Indigenous Women and Girls. This is especially concerning given the recent revelations of systemic racism within the healthcare system.

A July 22 press release from the Union of BC Indian Chiefs, Health Justice and the Civil Liberties Association states:

“The lack of consultation with Indigenous peoples, most directly impacted by this bill, is a complete contradiction to the principles of BC’s own Declaration Act on the Rights of Indigenous Peoples.

“Article 7(1) of the United Nations Declaration on the Rights of Indigenous Peoples, which the governments of Canada and BC have adopted and committed to implement, states that all Indigenous peoples have the rights to life, physical and mental integrity and security of person.”

Continuing, “To see this legislation tabled during a time when the reality of systemic and blatant racism towards Indigenous peoples and other people of colour is undeniable, is extremely troubling and emblematic of a system that seeks to oppress rather than to support,” stated Kukpi7 Judy Wilson of the Union of BC Indian Chiefs. “Our families and communities require culturally-safe, wraparound services – not additional legal mechanisms to detain our youth and ignore our rights. We will not accept unilateral processes imposed by provincial government that places additional risks on our children’s lives, including increased fatalities and the further intrusion of child welfare agencies.”

And concluding, in stark terms: “Multiple experts have warned that Bill 22 could result in increased fatalities for youth using substances who may overdose after being released from detention with reduced tolerance levels or who may choose not to call 911 in the event of an overdose for fear of being detained. Further, the proposed amendments are inconsistent with any current evidence regarding substance use. The overemphasis in our mental health and addictions system on involuntary treatment exacerbate the ongoing opioid health crisis.

We know that the legacy of colonization has resulted in an overrepresentation of Indigenous youth within state systems and among youth who use substances.

3. Lack of voluntary treatment and recovery options

Creating involuntary stabilization units for youth in the absence of adequate voluntary community-based services to address substance use – services such as culturally appropriate, youth-specific and youth-friendly voluntary detox, intensive case management, day treatment and community residential treatment - will mean we fail to truly help the young person.

Many argue that short-term, involuntary periods of hospitalization can further alienate young people from their families and community supports and, in fact, may put some youth at greater risk if they return to using substances upon their release due to their lowered opioid tolerance and the high likelihood of relapse upon discharge.

4. Parental involvement

There is concern that Bill 22, as drafted, would unduly remove parental involvement in a child’s or youth’s medical care. The bill allows facilities to select which adults they believe will act in the youth's best interests when deciding who to notify of the youth’s detention, which, in turn, allows facilities to not notify the youth’s parent/guardian.

Even if someone is judged to be a “bad” parent, that does not mean they should automatically lose the right to be involved in their child’s medical care, especially as judged by people unfamiliar with the family. In the worst of the worst parenting cases we rely on the judicial system to restrict parent’s rights.

If the policy goal was to allow for the exclusion of parents/guardians in cases where the youth may not want them involved – which could be common – this is not clearly achieved as it gives the power to include/exclude to the medical staff, not the youth.

Serious concerns have also been raised about the so-called “responsible adult” provision being used disproportionately to exclude Indigenous parents or guardians, as is already occurring under the Child, Family and Community Service Act.

Independent Review

Bill 22 does not provide the right to challenge the detention order to an independent tribunal or court. Instead, detention reviews are to be conducted by any “physician other than the recommending physician who made the certificate” (which, presumably, would be a colleague at the same facility) and if none is “reasonably available” the same physician who recommended detention reviews their own decision. Having a doctor review their own orders after a complaint is not consistent with best practice, even within other sections of the Mental Health Act. We also find it strange that the bill anticipates situations in which there would be no other physicians available in an entire hospital or health region.

In addition, the bill does not provide a way to access the constitutionally guaranteed right to independent legal advice and advocacy, despite government’s commitment to establishing such a service. Section 52 (2) (a) does require that the detained youth be advised of their “rights under section 10 of the Canadian Charter of Rights and Freedoms,” but even this seems woefully inadequate given the context. We are talking about a teenager who has just suffered a life threatening drug overdose and we expect them to a) know what their section 10 rights are (right to be informed of the reason for the retention, right to retain legal counsel, right to have the validity of the detention determined by way of Habeas Corpus), and b) have the means or ability to retain a lawyer?

We suspect this is a gap that government would look to fill in through regulations, but why - if the intent is to ensure that every youth detained using the provisions in Bill 22 is provided with legal counsel when requested - would we not mandate that in legislation?

This section, if left open, could lead to violation of a patient’s fundamental right to representation while detained.

Stabilization care centers

This bill does not facilitate the creation of new care spaces, per se, but seeks to reallocate existing areas within the hospital. It seems possible that it could designate portions of psychology wards to be ‘stabilization care’ facilities, without providing provisions for how those areas will be different or better suited to kids in crisis. As such, it may lead to children being detained alongside adults in severe psychological distress. This would not only be harmful to the wellbeing and medical outcomes for the youth, it may also be in violation of Article 37 of the Convention on the Rights of the Child.

Overall, we appreciate that involuntary detainments may be necessary and appropriate for some young people, but we can and should do so much more to ensure that the array of voluntary, culturally appropriate, youth-specific harm reduction, treatment and support services are available for British Columbians.

As a caucus, our preference was for the bill to be paused in the House so the Ministry could conduct detailed consultation with stakeholders to address the substantive concerns that have been raised before the bill is passed.

This has been incredibly heavy and intense work over the last month but our caucus feels that we have been able to give a voice to those who are often excluded from the legislative process and ultimately think this pause is in the best interest of policy for everyone.