Canadian Mental Health Law: The Slow Process of Redirecting the Ship of State

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Mental Health Legislation, Charter of Rights and Freedoms, Canada, Paternalism, Interventionism, Critique, Mental Health Supports


Canadians with mental health problems are entitled to be bemused at the current state of mental health legislation. The post-Charter era would have seemed a propitious time for intrusions upon their liberty to be minimized and for their equality interests to be comprehensively advanced. The slowly emerging recognition of the excesses of centuries of segregative responses and of the value of community-based supports and services ought to have augured for minimally coercive legislation. The new prominence of the need to destigmatize mental illness and to combat the harmful effects of prejudice would suggest a logically consistent shift away from laws based on the facilitation of intervention, towards legislation fostering social inclusion. However, the reality of the contemporary statutory landscape is startlingly inconsistent with these indicators of progress. Instead, the early twenty-first century substantive legislative regime emerges as more paternalistic and interventionist than its predecessors of the previous three decades. While offering some modest procedural protections, there are virtually no guarantees of supports and services to minimize the risk of disabling crises and to maximize the likelihood of optimal social functioning. Current law has largely made a volte-face, away from the ostensible promises of contemporary discourse. Mental health statutes make it easier to use the law to compel examinations, to detain patients and treat them forcibly in hospitals, and to extend controls over behaviour into the community. Positive entitlements to supports and services and to the enjoyment of the full panoply of rights of Canadian citizenship are elusive or simply absent.