The Charter Right to Refuse Psychiatric Treatment: A Comparative Analysis of the Laws of Ontario and British Columbia Concerning the Right of Mental Health Patients to Refuse Psychiatric Treatment
(2013) 46 UBC L.R. 489
Posted: 6 Jul 2016
Date Written: January 1, 2013
Abstract
In many jurisdictions, patients enjoy an absolute right to refuse medical treatment, even if doing so risks death or is otherwise contrary to the advice of treating physicians. This right is premised on a respect for personal dignity, autonomy, and self-determination, which extends to all citizens, including those with mental disorders. Nevertheless, Canadian courts also recognize that the state must intervene to protect the health and welfare of patients when they lack the competence to make treatment decisions for themselves. However, when mental-health patients are considered to lack the necessary degree of competence to refuse treatment, significant legal and ethical issues inevitably arise. This paper explores these issues. In particular, it compares the statutory regimes in place in two Canadian jurisdictions with radically contrasting positions and procedures. In Ontario, the applicable mental-health legislation provides that, apart from emergency situations, medication cannot be administered without either the prior consent of the patient (given while he or she was competent) or the consent of the patient's substitute decision-maker. In British Columbia, consent is "deemed" to have been given, notwithstanding any wishes of the patient to the contrary. It is argued that the administration of antipsychotic medications in the latter circumstances violates inherent and fundamental human rights. In the Canadian context, these include the Charter right to liberty and security of the person.
Keywords: psychiatric emergency; deemed consent, competency, mental health
Suggested Citation: Suggested Citation