By: Fraser Gordon
Bill Commented On: Bill 17, the Mental Health Amendment Act, 2020, 2nd Sess, 20th Leg, Alberta, 2020
Bill 17, the Mental Health Amendment Act (MHAA) was introduced to the legislature on June 4, 2020, with an anticipated proclamation date set for September, 2020. While presented by Tyler Shandro, the Minister of Health, as aimed at “strengthening the rights of these patients and assuring their rights are provided for and respected while they receive care” (Alberta Hansard, June 4, 2020 at 1125), this Bill also represents the province’s response to JH v Alberta Health Services, 2019 ABQB 540 (CanLII), which found several provisions of Alberta’s Mental Health Act, RSA 2000, c M-13 (MHA) an infringement on a person’s rights under sections 7, 8, 10(a) and (b) of the Canadian Charter of Rights of Freedoms.
In particular, the legislature recognized the Court’s concern in JH as to the suitability of the MHA’s provisions for involuntary detention and treatment for persons suffering from mental disorders that are untreatable, and has sought, in the MHAA, to refocus, and perhaps narrow, these provisions upon persons who are suffering from severe mental illness that are capable of being resolved by treatment. This change finds expression in the MHAA’s change to the definition of a “mental disorder”, which now excludes “a disorder in which the resulting impairment is persistent and caused solely by an acquired or congenital irreversible injury.” In this post, I want to consider the potential effects of this change in caring for persons now excluded under the MHAA’s definition. My concern is that this new definition may create a gap in the current legislative scheme for the care of persons suffering from “persistent” mental health disorders, and place such persons – and others – at risk. This would certainly be an ironic – and I am sure unintended – outcome of legislation which has as its aim the strengthening of the rights of persons suffering from mental disorders.