Wednesday, December 17, 2014

Law, Legislation and Civil Liberty - BC Mental Health Act - Review Panel Process


When the state intervenes in the life of a citizen in a way that arrests their rightful & innate liberty, the state has engaged in the most forceful act at its disposal.  Regardless of the rationale, the gravity of state action is the same; incarceration is incarceration regardless of state motivation. Most state interventions involving incarceration have an intended outcome, that is to say, the type and duration of incarceration are readily predictable - this contrasts with the BCMHA where "sanction" can last a life time. It is important that standards of judicial conduct are commensurate with state sanctions.

As  a criminal, the degree of state sanction is limited to incarceration, in the case of the BCMHA, state sanction extends beyond incarceration to the total relinquishment of control over mind and body. Under the BCMHA, the individual is completely at the whim of the treating professionals, the state has the capacity under this act of engaging in action absent even approval by family. You must understand, that the BCMHA takes hold of the most sacred entity we hold as human beings, our mind and its application to life. This is no trivial matter, this is by far and away the most intrusive, coercive and draconian sanction the state imposes. It most certainly requires judicial standards at par with criminal sanction, I submit it requires higher judicial standards – it receives retrograde process.

There has been an awkward fusion of Medicine and Law in the drafting and application of the BCMHA, it is inherent in medicine, with good intent, to take control of an individual’s life to whatever extent is necessary to facilitate healing or to mitigate suffering – this good intent by medical professionals then is merged with the requirements of state to conduct itself in accord with fundamental law and charter rights. Of course something has to give here, an individual exercising themselves out of concern for another individual under the rubric of professional obligations and compassion, is apt to lose sight of their actions in the context of law, and societal concern as it applies to the protection of rights in other areas of life. This is why we have a judiciary, the sober mind, the rational mind, to review the actions of the state in the context of law and the application of important principles in place to protect us from the misdirection of state authority and the actions of others. The Review Panel Process makes a mockery of our judicial system and in no way is commensurate with the gravity of state actions in the context of law and sanction.  

There is a general trend toward the tribunalisation of our legal system, in some instances this  may be helpful, where matters are trivial – in matters that have state sanction with the gravity of the BCMHA, the tribunal is a very weak tool. The Review Panel Process as actuated by the BCMHA trivialises the judicial review, it systematises & expedites the incarceration of people merely accused of illness. The process offers none of the trappings of the courtroom, the weight of justice and by extension the weight of consequence for all involved is absent.

Even something as simple as recording proceedings is retrograde, a microphone is stuck in the middle of a table, in reviewing proceedings via this medium the information that is recorded has little efficacy – it is nearly impossible hear what is being said, or who is saying it; the BCMHA provisions for appeal to higher judicial process yet, gathers data in a substandard way, as that data carries forward to higher process, in this way we corrupt subsequent process; the type and nature of evidence permitted in the Review Panel Process would fail to meet standard at the higher court level.  

There is extensive use of the Review Panel Process, the participation there is in effect off the record, and executed in an inferior manner to court proceedings. This effects a circumstance where the general judiciary has no influence over the act, if the acts administration were moved back to the court system, the act would come under greater scrutiny, would be subject to the influence of precedent with every interface of a citizen and the BCMHA. I submit, had this been the case over the life of the act, its application would have been more in accord with legal tenets AND it would likely have been subjected to revision.

It is important to remember, that this act may be intended for the ill, but it affects us all. I believe, and it is clear in reading decisions that have fallen out of very little exposure to the courts, it is to a degree the Pollyanna view of some in the judiciary that has permitted this act to exist as it has, with so little attention to misdirection or the over exuberant application of the act.   

At the point of accusation of mental infirmity, given the modalities of the Review Panel Process, one begins the legal process in a position of reverse onus. Normally the initiation of proceedings takes place as a result of people making accusations, medical professionals actuate emergency measures or some other means to facilitate incarceration, the person is held in custody and observed for an extended period of time prior to the Review Panel Process being actuated – the Review Panel Process must be activated within 14 days of a request. It is important to note, the entire act is drafted with the assumption people accused of illness are ill – so inherent in this reality is the requirement to prove one’s innocence, the assumption of innocence is attacked. Worse however, there is no requirement of the institution to prove anything, on hearsay and observation alone opinion determines incarceration; there is no requirement to demonstrate the presence of pathogenic action. Oft times infirmity is judged on the assertion of beliefs on the part of the accused, regardless of the degree of plausibility of these beliefs, there is no obligation for the state to refute them as they would in other areas of law, through investigation the presentation of resulting evidence.

The Review Panel Process is grossly flawed and flouts nearly every aspect of Canadian Jurisprudence. The most corrosive element is the asymmetry of influence that accrues to medical professionals and other actuaries functioning on behalf of the state. Given the very low standards of evidentiary process, the low standards of review, the isolation of the process from full judicial participation -  the more accused objects the bigger the pile of “evidence” against them gets – this has people who are most adamant about their “innocence” becoming increasingly disempowered.     

The points around the functionality of the Review Panel Process I think have been communicated in previous discourse. Substandard standards of review, substandard evidentiary process, the general disregard for people accused of mental infirmity, the innate paternalism that exists in the medical profession and the desire to control by the psychiatric community all converge to create a very toxic mix. 

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