In order for a law to be administered fairly and absent arbitrariness, clarity is required. The BCMHA is very difficult to administer because the nature of related medical practices leaves a wide scope for interpretation of illness and degree of illness, physiological assessment is inherently subjective and easily subverted by personal biases, social convention, and cultural variances. In administering patients under the act, the medical professional is extended a broad degree of discretion, while they have a requirement to assess the “plausibility” of claims, for example, there are no guidelines on how plausibility is interpreted or applied – they simply decide what to believe or not to believe absent any requirement for proving or disproving and they are most often informed by hearsay alone. Further; “severity” is ill-defined, the perception of illness is all that is required to actuate the act. In the administration of the BCMHA, there are no clear benchmarks for practitioners and judiciaries with respect to “severity”. People can have their rights breached absent being a threat or for failing to watch their finances or a single person exposed to the act can be treated differently depending on who treats them. In this case, vagueness effects arbitrariness.
In the absence of clarity around “severity” medical personnel have the capacity to act preemptively- we think the patient will do something wrong, we will incarcerate them. To medical professionals this makes perfect sense, mental illness responds to early treatment, this is one of the base arguments for an act like the BCMHA. The challenge is that it is a base tenet of our legal system, that in order to have your state of liberty interrupted something wrong must have occurred – this is fundamental – the absence of clarity around severity moves us away from fundamentals. There are very few instances if any in practical terms, where there is an opportunity for preemptive action by the state. The existence of preemptive capacity may subject the act to subversion – it may be tempting for example – to have a man declared ill on the basis of “unreasonable jealously” and incarcerated on the perception he might do something violent in a crumbling relationship. This kind of legislation is a very slippery slope and it puts us all at risk, at any time, of having the perceptions of other’s determine whether our state of liberty is upheld or not. In law in general, to incarcerate people on the anticipation they might do something is a complete breach of our legal traditions.
There is leeway given in the administration BCMHA with respect to the preconditions of incarceration, due to the assertion, that when administering the act professional’s actions are absent a punitive element. Anytime the state uses its power to change behaviour, or to detain for the protection of the public it is punitive; the fact that force is permitted and used indicates the people affected view the use of the BCMHA as punitive.
The act now grants complete discretion to medical personnel as to whether to use the act or not, the use of the act hinges on the perception of illness, as opposed to physical occurrences, objective data, proof of a pathogenic abnormality, or threatening actions by an individual. The BC Civil Liberties group and others see the flaw in this and want there to be a strengthening of the language around severity to include terms like “imminent harm” “a clear threat to self or others”.
As a result of the BCMHA being ill-defined, the requirements of the state to strike the right balance between public safety and administering the law can never be ascertained, because professionals discretion and the perception of illness are the only determining factors in the in actuating the act. The “fair balance test” as determined by Cunningham V Canada requires that for certain sections of the Charter of Rights and Freedoms to be deemed appropriate, circumvented, or the degree they are circumvented, that there needs to be a clear requirement for public safety; the BCMHA has no mechanism, as it is presently administered and written, to determine whether or not the “fair balance test” is satisfied. To find accord with the precedent it is required that the BCMHA effects a reduction in liberty that is commensurate with the need to protect society, there is no means determine accord with precedent given the vagueness of the act.
The inclusion of language that defines the parameters for professional action would reduce the risk of abuse of the act, reduce the present arbitrariness of the act and return us to be closer to fundamental law. Clearer definition and judicial review prior to incarceration or being committed would permit the treatment of people affected by mental illness and protect the rest of the population while maintaining accord with fundamental rights.
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