VANCOUVER — A British Columbia woman hospitalized against her will under the Mental Health Act says the provincial government has a legal duty to provide her with a lawyer to make a fair case for her release.
The woman, 39, whose name is protected under a publication ban, has launched a lawsuit against the B.C. government, arguing she has a constitutional right to legal representation at an upcoming review of her detention.
Court documents say the woman, who has suffered from mental health challenges since her early 20s, was involuntarily detained in July after checking herself into the emergency room of a Nanaimo hospital looking for help during a mental health crisis.
At the time of her detention she was unemployed, homeless and subsisting on about $500 a month in disability benefits, say the documents, which were filed in B.C. Supreme court on Friday.
The woman has a hearing on Aug. 23 before the Mental Health Review Board, a three-person panel that must assess whether the provincial government has met the legal threshold for holding someone against their will.
"The suggestion that we expect folks to go and make that case, even if you weren't mentally ill, on your own would be a remarkable thing. But to do it when you're mentally ill? It's embarrassing that we would expect people to be able to do that and get a fair hearing," said Mark Underhill, one of the lawyers representing the woman.
Often, the person being involuntarily detained is required to go up against the treating physician, their own doctor, he added.
"I don't know how anybody in a civil society could say, 'Oh yes, that's OK. These people don't need help,'" said Underhill. "To me it's as close you come to a no-brainer as there is."
Community Legal Assistance Society, the body responsible for providing legal aid in B.C., said the earliest it would be able to provide a government-funded lawyer for the woman's case would be in October.
"This is clearly a human rights issue," said Kate Feeney of the B.C. Public Interest Advocacy Centre, also involved in the case.
"Any delay is really unacceptable when your fundamental liberty interests are at play and you're being hospitalized and medicated potentially against your will."
The woman's lawyers said their client's case illustrates the broader access-to-justice challenges for people who suffer from serious mental illnesses.
Feeney described it as a systemic failure against society's most vulnerable people stemming from chronic underfunding to legal aid providers that dates back to 2009.
It affects hundreds of people annually, she said.
Underhill said the solution to the problem was a relatively straightforward fix and would likely cost the under $1 million.
"When the solution is not a big ask the question needs to be asked of the government, 'Why aren't you fixing this?'" he said, "Why on God's green Earth would you let it drag out in court and not just come to the table and figure out a way to get these people help?"
Both lawyers have agreed to take on the access-to-justice case pro bono.
The woman's arguments for legal aid will be made in court on Thursday and her hearing before the Mental Health Review Board is scheduled for Aug. 23.
A government spokeswoman said in an emailed statement that the Justice Ministry isn't aware of the legal action and has no comment.
