British Columbia Humans Rights Commissioner Kasari Govender says the province has been illegally detaining some of the province’s most marginalized people using a law that doesn’t actually permit that practice.
In a report released April 10 she laid out how the Adult Guardianship Act has been used to detain 300 people 340 times over the last five years. The median detention length was six days and the maximum was 212 days, Govender said.
Of the 28 people held for more than 30 days, 22 were detained in a hospital, three were detained in Community Living BC staffed resources, two in “other” locations and one in a long-term care facility, according to the report. Nine adults, who were detained between 95 and 34 days, were not given access to counsel.
The act was introduced in 2000, Attorney General Niki Sharma told The Tyee. The province doesn’t know the total number of people detained over the past 25 years because there wasn’t consistent reporting on or interpretation of the act, she added.
The Adult Guardianship Act forms part of a set of laws designed to uphold the wishes of adults who become incapable of making their own decisions. Section 59(2) of the act allows regional health authorities and Community Living BC to intervene in emergency situations when an adult is in immediate danger.
This could be because an adult is being abused or does not understand the danger because of cognitive impairment, Govender said.
Section 59(2) says agencies can “take any other emergency measure that is necessary to protect the adult from harm.”
This has been interpreted as being able to detain people, “but nowhere does it say that explicitly,” Govender said. “That’s important because detaining people is an extraordinary power. Normally it would need to be named explicitly.”
The detentions have additionally occurred without procedural protections such as access to a court or tribunal, Govender said. She said she didn’t know of any other law in Canada being used to detain people without these procedural protections.
Govender’s report includes 10 recommendations to improve the act so it can be used to “protect people from harm without causing further harm.”
Summarized, they include:
introducing regulations to ensure that people being detained understand what is happening and have access to legal advice, representation and recourse;
the development of guidelines, regulations and policies around detention, ensuring people are held for as little time as possible and that there is training, data reporting and transparency around the process; and
the creation of an independent officer in the legislature to oversee detentions in health-care settings.
Sharma told The Tyee that the Ministry of Public Safety and Solicitor General is accepting “the spirit” of all recommendations, particularly the ones that make sure there’s better oversight and clear authority within the act.
That means “the exact mechanism that we may employ to solve the problems she identified might be different, but we’ll make sure we keep her appraised of the work we’re doing,” she said.
Sharma said the ministry started a working group in 2019 to develop ideas about how to improve the act and will be taking input from that too.
Changes should start to be seen in as little as a “few months,” Sharma added.
“For many years we’ve heard anecdotally about adults being detained” under something other than the Mental Health Act, Laura Johnston, legal director of Health Justice, told The Tyee.
“No one was really sure what act it could be under because the Adult Guardianship Act itself does not authorize detention without something like a court order.”
This report “underscores how the community was right to raise these concerns. The government needs to act immediately to respond to illegal detentions happening in our province,” Johnston added.
Calls to look at the Mental Health Act, too
Jonny Morris, CEO of the Canadian Mental Health Association BC Division, says an officer with independent oversight could similarly review how the Mental Health Act detains people. That’s all the more needed with the provincial government introducing involuntary treatment for people with concurrent mental injury, substance use and mental illness, he said.
“A report like this creates a really important opportunity to look underneath the hood at the day-to-day practices within our health-care system and really improve the law,” he said.
Johnston also strongly supported the addition of an independent oversight officer for all detentions that happen in health care.
Morris said detentions can be “absolutely important” in certain situations but “should always be used as a last resort.”
A lot of the problems with the act stem from its age, Sharma said.
“Things have changed over time, and since the legislation has been in place for so long, we need to make sure we’re strengthening [protections],” she said.
While the Adult Guardianship Act isn’t necessarily discriminatory, Govender wrote in the report, it is being applied in a way that disproportionately impacts marginalized groups, with 94 per cent of those detained having a disability and 70 per cent considered seniors. Unhoused people were also disproportionately impacted, she said.
Erika Cedillo, director of public policy and programs with Inclusion BC, says marginalized groups are likely overrepresented in detentions because there’s a lack of meaningful supports for people as they age, and because people with intellectual and developmental disabilities may be perceived as more at risk and therefore more in need of intervention than the general population.
People may also be getting caught in extended detentions because there aren’t adequate supports or social safety nets to help people return to living in community after they’ve been detained, she said.
Cedillo said she hopes the government will take this as an opportunity to reflect on what happens leading up to a person ending up in an emergency situation — and how to better care for them during and after the emergency.
Morris told The Tyee that being able to access human rights such as freedom from arbitrary detention, and maintaining your dignity, also improves a person’s likelihood of recovering, having good health outcomes and maintaining trust in the system, which is important for future care.
