One can muse about the Charter of Rights and Freedoms, whether it is complete, whether it is that meaningful from a federal perspective given the “notwithstanding clause” and of course the complete absence of property rights – but it is here now and it has gained legal mass given all the precedent set in “Charter Challenges”. The important thing about the Charter is that it says the words “Rights and Freedoms” and holds as equity 300 years of toil for freedom by the founders of the enlightenment. A collection of people who fully understood the tyranny of the institution and how it can wrought the human sole in a most grievous way at times, they knew that in a human organization – the institution - is levered the human inclination to put a boot on others' necks. We have what amounts of a fledgeling document in the Charter of Rights and Freedoms that stands between us and the abuse of state power, a document that in many ways gives expression to the finest intent of humanity – the desire to give freedom to others; we ought to be nurturing it as opposed to permitting it to be chipped away at – as I have witnessed in this case study.
Section 7 of the Charter says we are entitled to Life, Liberty and Security of Person – embedded in that entitlement, and supported by a breath of legal precedent, is the right to choose. The BCMHA imposes on the right to choose and does so in breach of a longstanding tenet in medical law, which amounts to the “assumption of competence”, like liberty - as it is an extension of liberty, for the state to arrest one’s ability to refuse treatment it must prove the individual is incapable of judging for themselves. In British Columbia there is no attention paid to this tenet as there is in other jurisdictions such as Ontario, in British Columbia, the opinion of the individual who is merely accused of mental infirmity has no weight – a doctor’s opinion and only a doctor’s opinion can incarcerate someone. There is no requirement, as the act is now administered to “prove” incompetence. Section 7 says we exist in a state of liberty and for the government to interrupt that state of liberty it must “prove” it has just cause, as the BCMHA is now administered there is no requirement to prove illness exists, with opinion and only opinion and no objective data you can be incarcerated. The BCMHA’s involuntary treatment provisions are most often actuated to force the consumption of medication, medications that are ofttimes pathogenic, very potent, and with very little scientific data to support their use; this is executed absent judicial review or any of the trappings of “real judicial process”.
Excerpt 1 from Case Study of Starson v. Swayze. “The Court noted that under the Health Care Consent Act there was a presumption that people were capable of making treatment decisions and that the onus rested with those who challenge the presumption to establish incompetence. Further, the Court examined the two-part test under the Act for determining whether a person was capable of making treatment decisions: first, the person has to “understand the information that is relevant to making a decision about treatment;” and, second, the person has to be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
The subject of this case study passed this test, his capacity was substantiated by the very medical personnel the detained him for 12 years. In seven Review Panels and a B.C. Supreme Court proceeding, this issue was never raised on the individual's behalf nor was the principle applied – in other jurisdictions this test is applied. In Ontario it is considered and generates an odd circumstance where people refuse treatment and then are held due to being a risk to self or others, it is in effect a legal catch 22; the fact this happens indicates how important the Judiciary in Ontario views the “presumption of competence” and the extent they are willing to go to protect it. The very crux of liberty, its point of emergence, is the individual’s right to hold domain over mind and body, there is no greater incursion the state can make on an individual than to take domain over mind and body away – when it is done wrongly, absent due process, in the public eye there is no more dis-empowering or humiliating experience. This case study has shaken my faith in our system of justice, the judiciary has abandoned people accused of mental infirmity and by extension has abandoned us all.
The intrusion by state on Section 7 must be contemplated by juxtaposing – how important is it to arrest this individual’s state of liberty against, the wellbeing of the citizenry at large – that is the basis in thought for the “Fair Balance Test” – the fair balance test in no way extends to the state the power to protect us from ourselves – when the state starts down that road our choice is eroded – as the BCMHA is now administered the state passes judgment of financial decisions, social interaction, physical health – these are matters clearly inside the domain of the individual and should never be subjected to state intervention.
Section 9 of the Charter says that a “reasonable mind(s)” and due process will determine whether or not someone falls under state sanction and that no one can just say “lock this person up”. The BCMHA as it is now administered does that very thing, on the perception of illness only – if a layperson judges your actions to be a product of mental infirmity – you can be incarcerated in a hospital – it is important to note; no illegality needs take place, no act of violence, no suicide attempt, you only need to be acting oddly. To be retained in “custody” a medical doctor has to “be of the opinion” your actions are a product of infirmity and then within 24 hours the “opinion” needs to be supported by another “medical opinion” and then you’re “in the system”.
As an aside, due to the fact that there is no requirement for evidence that is objective in nature, at the point of accusation, one is placed in a de facto state of reverse onus - as the state has acted on subjective opinion only. This disadvantages the accused, in that, they are required to respond with "objective" evidence to secure release.
The act then subjects people to the “arbitrary” actions of fellow citizens, the act then subjects people to the judgment of a single individual, the act the requires another individual to support the first individual – no real due process takes place prior to incarceration – that is arbitrary. Worse, however, is the fact that there is a high degree of propinquity between professionals, not mention professional courtesy – the second opinion is in effect a rubber stamp. The subject of this case study never interfaced with the GP that initiated the act’s use regarding mental health issues, he made claims which the second doctor interpreted as illness and which both doctors failed to refute via judicial process – that is to prove with evidence – then the third doctor, a requested the second opinion, did no independent investigation – he merely reviewed the second doctor’s records. The challenge here is, we have medical personnel taking a paternalistic stance, with a high degree of continuity of thought administering the law, the judiciary understands the boundaries of state power in the context of society as a whole, the BCMHA is administered completely in hospitals. When someone decides to dispute opinions they are offered retrograde process in a meeting room; people rights are being taken away, they deserve a courtroom, a judge, and real process. There should never be a circumstance when we “expedite” the incarceration of a citizen as the BCMHA does, as in the expediting there is inherent arbitrariness.
The subject of this case study had less than two hours interface with medical personnel before that act was misapplied, had never committed a single act of violence or threatened harm to self or others – he merely asserted the presence of synchronistic actions on the part of a group or groups and for that, absent any evidence to refute the claim, he was incarcerated and detained for 12 years, forced to consume medication, had his privacy invaded and a multitude of other humiliating experiences. An obscene abuse of state power, a travesty of justice, a heartbreaking saga for him, stigmatization for no reason - this was a state-sanctioned act of malfeasance. As his case progressed, after 12 years of his fighting the system, after Royal Inland Hospital spent thousands of dollars on a lawyer to fight him and he with only his own person and no resources – they released him with no apparent constraints on his person.
There is no doubt that this acts initiation and ongoing administration was arbitrary in this case – it can be proven – proper process has been denied.
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