A look back at recommendations on mental capacity and retaining legal counsel
March 7, 2017
BY Kevin Zakreski
It’s been just over a month since the BC Branch of the Canadian Bar Association published its Agenda for Justice 2017. The agenda explicitly called for the implementation of four BCLI reports. But aspects of the agenda may have an implicit bearing on past BCLI work.
For example, the agenda proposes amending the Mental Health Act to provide that “a patient, who is the subject of a physician’s decision to involuntarily detain that patient, has the option of legal representation during the review proceeding.” This proposal, while aimed at a narrower target and supported by a different rationale, nevertheless has some similarity to a recommendation made by BCLI’s Common-Law Tests of Capacity Project Committee in 2013.
In its Report on Common-Law Tests of Capacity (PDF), the committee gave extended consideration to issues that may arise when a person with diminished capacity is the subject of a proceeding to determine whether that person has the mental capacity to make decisions on his or her behalf. A person in this situation may need the assistance of legal counsel, but may find it difficult obtain counsel’s support and assistance because of doubts about the person’s capacity to retain and instruct legal counsel. The committee described the issue in these terms.
A person whose mental capacity is at issue in a court proceeding can be in an anomalous position. The Supreme Court Civil Rules call for the appointment of a litigation guardian if the person lacks capacity to retain (and instruct) legal counsel. A person may be understandably reluctant to submit to this arrangement in proceedings that are meant to establish whether or not the person lacks mental capacity to perform some act. But it can be difficult for such a person to retain legal counsel. Despite some recognition that a person in these circumstances should be presumed to have the capacity to retain legal counsel, in practice legal counsel tend to shy away from accepting a retainer from a person whose mental capacity is in issue in a court proceeding. So such people can find themselves caught in a grey area in the law.
In response to this issue, the committee considered the following reforms:
In the committee’s view, this problem is especially acute in proceedings that may result in a substantial deprivation of a person’s liberty. Such proceedings arise under the Mental Health Act and the Patients Property Act. (And they will arise under the Adult Guardianship Act, once that act’s provisions on adult guardianship are brought into force, replacing the Patients Property Act.) The committee proposes adding to those three acts a provision modeled on a section found in Ontario’s Substitute Decisions Act, 1992. Such a provision would make it clear that a person in proceedings under those acts has the right to retain and instruct legal counsel. In addition to clarifying the law, this proposal would serve to empower individuals with diminished capacity and to enhance the broadly protective purposes of these acts.
Ultimately, the committee recommended:
British Columbia should amend the Adult Guardianship Act, the Health Care (Consent) and Care Facility (Admission) Act, the Mental Health Act, and the Patients Property Act to provide that if the capacity of a person is in issue in a proceeding under the act the person is deemed to have capacity to retain and instruct counsel for the purpose of representation in the proceeding.
To date, the committee’s recommendation has yet to be implemented.