Legally Speaking with Michael Mulligan
Aug 6, 2026 · 20 min · 5 segments
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…
Michael MulliganGuest
Adam StirlingHost
And it comes from a challenge brought by a group called the Council for Canadians with Disabilities.
And it was a constitutional challenge to the process we have in British Columbia to make treatment decisions about administering treatment to somebody who is an involuntary patient under the Mental Health Act.
And the particular challenge was brought on the basis of an alleged breach of Section 7, which is the right to life, liberty and security of the person.
Of interest, the challenge brought was not a challenge to the process whereby a person can become an involuntary patient in a mental health facility.
And broadly speaking, as we've talked about before, there is authority under the Mental Health Act to have somebody involuntarily admitted and to become a patient.
if they're a person with a mental disorder, and this is simplifying it a bit, but are a danger to themselves or others, right? There's a bit more flowery language around that, but that's really what it amounts to.
And there's a process in the Mental Health Act that involves various sorts of assessments and reviews to determine whether you are that sort of a person who can be involuntarily admitted.
What was challenged was the process that's in place to then impose involuntary treatment on somebody who has been involuntarily admitted.
And as the judge pointed out, and this is quite a decision, it's hundreds of pages, it is the case that the idea that a person has autonomy over their own body and is able to freely determine whether they wish medical treatment is something that is pretty deeply rooted in our common law.
Your ability to say, yeah, I want that treatment, surgery or whatever it might be.
And your ability to say, I don't want that or stop treating me is pretty integral to a person's sort of autonomy and dignity and so on.
And so that's the starting point that the judge applied when analyzing the constitutionality of how that system worked in B.C., And when this legislation started, and right up to just before the submissions were being done in this very long, complicated trial, there was a change in the legislation, which was really interesting.
The way it worked all the way up to right at the end of this trial, and you have to wonder whether the change might have been perhaps prompted by the trial itself, that's not an unknown state of affairs, is that when a person became an involuntary patient, right, through that process of determining that they're a risk to themselves or others, the legislation then essentially deemed them to have consented to whatever medical treatment the doctors were wanting to impose.
And some of the treatment that can be imposed on somebody under the Mental Health Act can have pretty significant implications, like medications that have side effects.
They can have impacts on a person's memory and all kinds of things, right? And so those are pretty intrusive treatments sometimes that are imposed.
And it comes from a challenge brought by a group called the Council for Canadians with Disabilities.
And it was a constitutional challenge to the process we have in British Columbia to make treatment decisions about administering treatment to somebody who is an involuntary patient under the Mental Health Act.
And the particular challenge was brought on the basis of an alleged breach of Section 7, which is the right to life, liberty and security of the person.
Of interest, the challenge brought was not a challenge to the process whereby a person can become an involuntary patient in a mental health facility.
And broadly speaking, as we've talked about before, there is authority under the Mental Health Act to have somebody involuntarily admitted and to become a patient.
if they're a person with a mental disorder, and this is simplifying it a bit, but are a danger to themselves or others, right? There's a bit more flowery language around that, but that's really what it amounts to.
And there's a process in the Mental Health Act that involves various sorts of assessments and reviews to determine whether you are that sort of a person who can be involuntarily admitted.
What was challenged was the process that's in place to then impose involuntary treatment on somebody who has been involuntarily admitted.
And as the judge pointed out, and this is quite a decision, it's hundreds of pages, it is the case that the idea that a person has autonomy over their own body and is able to freely determine whether they wish medical treatment is something that is pretty deeply rooted in our common law.
Your ability to say, yeah, I want that treatment, surgery or whatever it might be.
And your ability to say, I don't want that or stop treating me is pretty integral to a person's sort of autonomy and dignity and so on.
And so that's the starting point that the judge applied when analyzing the constitutionality of how that system worked in B.C., And when this legislation started, and right up to just before the submissions were being done in this very long, complicated trial, there was a change in the legislation, which was really interesting.
The way it worked all the way up to right at the end of this trial, and you have to wonder whether the change might have been perhaps prompted by the trial itself, that's not an unknown state of affairs, is that when a person became an involuntary patient, right, through that process of determining that they're a risk to themselves or others, the legislation then essentially deemed them to have consented to whatever medical treatment the doctors were wanting to impose.
And some of the treatment that can be imposed on somebody under the Mental Health Act can have pretty significant implications, like medications that have side effects.
They can have impacts on a person's memory and all kinds of things, right? And so those are pretty intrusive treatments sometimes that are imposed.
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