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Communities and independent offices have been calling for the creation of an independent rights advice service for Mental Health Act detainees since the 1990s. Its absence has created an access to justice crisis for people detained in BC, with multiple investigations finding that involuntary patient rights have not been explained or respected.
In early 2022, multiple community organizations signed on to a Community Vision for independent rights advice services, which set out the key components of a successful service based on research from evaluations from other jurisdictions that have a service and guidance from Health Justice’s Lived Experience Experts Group and the Indigenous Leadership Group.
Bill 23 mostly provides a framework for an independent rights advice service to be established, however, many critical details are still to be determined. Many communities will be watching closely to make sure that key components are addressed in regulations that will be created at a later date, such as ensuring the service providers reflect the diversity of people accessing the service and providing independent training for detaining facilities to ensure effective cooperation between the service and detaining facilities.
Here are 3 important components of an independent rights advice service, how Bill 23 addresses them, and things to keep an eye out for:
📑 IN-PERSON
The service should be provided in-person where possible to ensure accessibility, understanding, and the full therapeutic and legal benefits of the service. In-person presence on psychiatric units and facilities promotes independent oversight and transparency of conditions where people are detained. The Ombudsperson’s report established that a key feature of the rights advice service would be in person communication except in limited, exceptional circumstances (page 87).
Does Bill 23 Address the Component or is it Still to be Determined?
To be Determined.
Bill 23 says that the rights advisors may communicate with involuntary patients in person, in writing or by any other means (s. 49). This means there is no requirement in the law that services be provided in-person, but it is also not prohibited. The Ministry of Attorney General announced in an April 28, 2022 press release that the service will be primarily virtual, using videoconferencing and phones, but that some in-person services will be available in certain circumstances.
There are many circumstances where independent rights advice must be provided in-person in order to make the service accessible and fulfil human rights obligations. For example, people who struggle to understand and connect with the service virtually because it’s not culturally appropriate, not age appropriate, not accessible for someone who speaks English as a second language, or not accessible for someone who feels unsafe communicating private information virtually, may require in person services. It will be important to ensure that the service is provided in person where necessary to ensure service accessibility and meaningful systemic transparency.
📑 INDEPENDENT
It’s important that the service is independent from government, health authorities, and detaining facilities to ensure it is a confidential and trusted resource for patients. In other places in the world that have rights advice services, the legislation defines what it means for the service to be independent, for example, by saying that rights advisors employed by the service must not be employed by or have privileges with government, a health authority, or a designated facility.
Does Bill 23 Address the Component or is it Still to be Determined?
Partially Addressed.
While Bill 23 doesn’t define the independence of the rights advice service, it does say that rights advisors must meet prescribed criteria, which means that criteria will be coming in regulations still to be established (s. 46(2)(b)(ii)). It appears that criteria related to independence may be created in future regulations under the authority related to “actual or perceived conflicts of interest” (s. 55(2)(a)(ii)). These criteria will need to provide clarity to ensure the rights advice service is truly independent from government, health authorities, and detaining facilities.
📑 AUTOMATIC
Evaluations of services from other places in the world have shown that the best way to ensure accessibility is for the service to be automatically accessible for everyone, rather than putting the burden on detainees to request access to the service. When detaining facilities are asked to inform detainees that they have the right to request the service and detainees only get access to the service when they assert that right and detaining facilities pass the request along to the service, many people fall through the cracks (eg. if the detaining facility doesn’t explain the right to the service or if a detainee is afraid of reprisal for making a request or a request doesn’t get passed on right away etc). This is particularly true for people who face additional access to justice barriers, such as children and youth, Black, Indigenous, or racialized people, and people with disabilities.
Does Bill 23 Address the Component or is it Still to be Determined?
To be Determined.
Bill 23 says that detaining facilities will be required to notify detainees that they have the right to request access to the service and then detaining facilities must notify the rights advice service as soon as reasonably practicable after a request is made (ss. 34.3, 47). Relying on an exclusively request-based approach would be particularly problematic in BC, where there is well documented evidence of non-compliance with informing detainees of their rights in detaining facilities and significant power imbalances are at play in the facility/detainee relationship.
However, Bill 23 says that the service will be provided when detainees make a request or when a “prescribed event” occurs (s. 47(1)(b)). That means that regulations still to be established will need to describe specific events where the service would be automatically notified, for example, when someone is initially detained or when detention is renewed. It will be important to make sure that regulations provide for automatic access to the service at specific points in time in order to ensure an equitable and meaningful service.
Health Justice is excited to see BC taking this initial step towards establishing this crucial service. We will continue to advocate for a service that reflects what we have learned from communities we’ve engaged with and other places around the world.
