Proceedings in the
Douglas Fir Room

The House in Committee, Section A.

The committee met at 1:13 p.m.

[Darlene Rotchford in the chair.]

Committee of the Whole

Bill 32 — Mental Health
Amendment Act (No. 2), 2025
(continued)

The Chair: Good afternoon, Members. I call Committee of the Whole on Bill 32 back from adjournment. We are on clause 1, but I will look to the member for Skeena.

On clause 1 (continued).

Claire Rattée: Thank you so much, Chair. I’m wondering if you would indulge me so that we could go back so that I could move an amendment before clause 1.

The Chair: Yes. Go ahead, Member.

Claire Rattée: Thank you. I would like to move that we add a clause 0.01 prior to clause 1 that reads: “The minister must ensure that directors are trained respecting the scope of authority of directors in respect of the provision of a professional service or care or treatment authority under this act and applicable consent and capacity laws.”

The Chair: Okay. You can speak to the amendment now.

On the amendment.

Claire Rattée: Perfect. Thank you.

With the legal landscape changing, I believe it’s essential that directors actually understand what they can and cannot authorize. I believe that training protects everyone — patients, clinicians and the Crown — by reducing errors and unlawful decisions. In my opinion, this is a basic competence and safety measure, and if the government plans to change the law but not train the people applying it, I think that this is a way that we can prevent that from happening.

The Chair: Okay, Member. We’re going to take a quick recess, and then we’ll come back to the amendment.

The committee recessed at 1:15 p.m.

In my opinion, this is a basic competence and safety measure. If the government plans to change the law but not train the people applying it, I think that this is a way that we can prevent that from happening.

The Chair: Member, we’re going to take a quick recess, and then we’ll come back to the amendment.

The committee recessed at 1:15 p.m.

The committee resumed at 1:23 p.m.

[Darlene Rotchford in the chair.]

The Chair: Member, before I make any ruling, I would ask the member that made the amendment if there’s anything else you would like to add in speaking to this amendment.

Claire Rattée: I don’t think so, no.

The Chair: It appears to the Chair that the amendment is beyond the scope of this bill, and it is therefore out of order. So we will return to clause 1.

Amendment ruled out of order.

Claire Rattée: Okay, thank you, Chair. I appreciate that.

Next I would like to ask a few questions with regards to other pieces of legislation that kind of interact with this. I think it relates because I’m trying to understand when this act is going to be applicable and when it is not.

I have some questions around the Health Care (Consent) and Care Facility (Admission) Act. I’m trying to understand when that act is relied on and when this one is relied on. So my first question would be if the minister agrees that repealing section 31(1) causes consent to default to the Health Care (Consent) and Care Facility (Admission) Act. I’m assuming it does not, but just for the record, please.

[1:25 p.m.]

The Chair: Member, to clarify, I think the question you just asked actually falls under clause 2, not clause 1.

Claire Rattée: We did discuss this a little bit earlier. Because these two clauses are really closely linked, I’m doing my best to make sure that I have them separated to both clauses. But it’s been a bit tricky, because there is a lot of…. I understand this is a very short bill. Many of the questions

We did discuss this a little bit earlier because these two clauses are really closely linked. I’m doing my best to make sure that I have them separated to both clauses, but it’s been a bit tricky because there are a lot of…. I understand this is a very short bill. Many of the questions do kind of stray, if you’re looking at it in a very narrow sense, but the context is important, I think, before making decisions about changing this act.

Hon. Josie Osborne: I’m going to repeat what I said in the closing of second reading debate.

[The bells were rung.]

The Chair: We will take a short recess, and then we will return.

The committee recessed at 1:26 p.m.

The committee resumed at 1:45 p.m.

[Darlene Rotchford in the chair.]

The Chair: I will call the committee back. Again, we are on Bill 32, clause 1.

Minister, I will look to you to answer the question.

Hon. Josie Osborne: So just before we broke there, the question was around the Health Care (Consent) and Care Facility (Admission) Act and, essentially, whether repealing section 31(1)…. Would treatment authorization default? What is the relationship between this proposed bill and the Health Care (Consent) and Care Facility (Admission) Act?

Section 2 of said act, the Health Care (Consent) and Care Facility (Admission) Act, specifically says that the act does not apply to the provision of psychiatric care or treatment of patients involuntarily detained under the Mental Health Act. So involuntary treatment for involuntary patients cannot, by definition and operation of the legislation, default to the HCCCFAA.

Claire Rattée: Thank you. That definitely helps to clear it up a little bit.

I’m not sure if this is an admissible question or not, but I’m wondering if the minister might be able to provide for the record what the exact process is under the Mental Health Act right now to obtain consent. I understand that that’s not expected to change with these amendments, but I’m wondering if we can have clarity on what that exact process actually looks like as dictated by the Mental Health Act so that I can have a clearer understanding of whether or not I determine that any of these amendments may potentially impact that.

[1:50 p.m.]

Hon. Josie Osborne: I’m going to give a somewhat lengthy…. But I want to give a detailed answer.

The authority for a director to authorize involuntary treatment is found in section 8(a) of the Mental Health Act, which describes the powers and duties of directors of designated mental health facilities. For clarity, this section states specifically that each patient admitted to the designated facility is provided with professional service, care and treatment appropriate to the patient’s condition and appropriate to the function of the designated facility, and for those purposes a director may sign consent to treatment forms for a patient detained under section 22, 28, 29, 30 or 42.

The authority for a director to sign consent to treatment forms on behalf of a patient under the Mental Health Act does not come from section 31(1). After a patient is involuntarily admitted under the Mental Health Act and the director signs form 4.1, the first medical certificate…. After an assessment by a physician or nurse practitioner, the person is admitted for 48 hours if they meet criteria for involuntary admission. As soon as possible after form 4.1 is signed, the treatment team develops a treatment plan.

Form 5, the consent for treatment that we’ve discussed at least once today already. In here, the treatment team will describe and explain the patient’s treatment plan. They’ll discuss possible treatment options, and the patient has the right to know what treatment they will receive and how it might affect them.

At this point, the patient is also advised that they have the right to access an independent rights advice service. They’re advised of that right. One of two things may happen after form 5 is completed. First, the patient may understand the treatment plan. If the patient understands the treatment plan, the patient can choose to consent to the treatment plan by signing form 5.

If the patient declines to consent or the treating physician’s assessment finds that the patient cannot consent to treatment, the Mental Health Act director of the designated facility can consent to treatment on the patient’s behalf by signing form 5. If the director consents on the patient’s behalf, the director that signs form 5 must be a different person from the treating physician.

At this point, the patient would receive treatment. This is the first 48-hour period. After the 48 hours, if the patient is admitted on form 4.2, the second medical certificate and treatment plan, and significantly changes, a new form 5 would be completed. Form 4.2 continues the admission for one month if the patient continues to meet all four of the involuntary admission criteria. It is at this point, as well, that the patient can request a second opinion.

I understand that’s a detailed response, but I hope it outlines the process, and I’d be happy to share more information in writing with the member afterwards.

Claire Rattée: Thank you. That does really help. I’m curious. Does the Mental Health Act outline what the protocol is for determining whether or not a patient is capable of making that decision about consenting to the treatment plan or how a director or clinician is supposed to determine whether or not they are?

[1:55 p.m.]

Hon. Josie Osborne: No, the act does not outline that. This is an assessment that is made by the clinician based on their profession, on their professional experience, judgment, training and expertise.

Claire Rattée: I understand that this may be outside of the scope of what we’re supposed to be asking questions about, but I’m hoping that the minister will indulge me.

outline that this is an assessment that is made by the clinician based on their professional experience, judgment, training and expertise.

Claire Rattée: I understand that this may be outside of the scope of what we’re supposed to be asking questions about, but I’m hoping that the minister will indulge me.

What specific piece of legislation or regulation outlines those protocols — just so that I can look it up for my own benefit — of how they make that determination about whether or not someone can give their consent or is deemed incapable?

Hon. Josie Osborne: Yes, I think this is outside the scope of this bill for certain, but I would advise the member that she could examine the credentialing and licensing that is undertaken by the College of Physicians and Surgeons, in order to understand the specifics of psychiatry, for example — to understand what the professional obligations, duties and responsibilities would be of a psychiatrist who is making that type of assessment.

Claire Rattée: I appreciate that. So I would assume then that that means that these decisions are essentially left up to that physician, that psychiatrist, to make that determination based on best practices of what they were taught in school and what their professional experience is, and that there isn’t specific regulation around that.

The reason that I’m asking that is because obviously we’re talking about applying liability coverage for a physician that’s making that determination to treat somebody involuntarily. I think….

To put it simply, does the ministry believe that that is best practices to not have specific guidelines? I understand that that would be very difficult to craft, but to not have specific guidelines dictating how those decisions are supposed to be made from a liability perspective…. Or is this clause supposed to just provide liability coverage no matter what, carte blanche? Because, you know, obviously physicians can make mistakes.

So that’s why I’m wondering if it might be helpful to have some specific regulation and guidance around making those determinations.

Hon. Josie Osborne: I’ll just repeat the answer that I gave yesterday in a line of questioning around the fact that section 31(1) currently is an implicit liability shield. We are proposing to amend section 16 to add an explicit liability shield for said health care provider, but always with the condition that that care is provided in good faith and with reasonable care, and that that is the test that is explicit in the act.

Claire Rattée: I think one thing that I would ask then is when I’m reading through these amendments, I understand that this is to explicitly provide liability coverage. But should we not also then have it worded that it is explicitly only when that provider is acting in good faith and without negligence.

Hon. Josie Osborne: I would say the act does just that already.

Claire Rattée: Sorry. Would I be able to have the specific part of the act that reference that?

[2:00 p.m.]

Hon. Josie Osborne: So section 16 begins: “A person is not liable in damages as the result of doing any of the following in good faith and with reasonable care.” And then the addition of

Hon. Josie Osborne: Section 16 begins: “a person is not liable in damages as the result of doing any of the following in good faith and with reasonable care.” Then the addition of clause b.4 would be “providing to a patient a professional service, or care or treatment, authorized by the director under this Act to be given to the patient, including treatment described in a consent to treatment form signed under section 8 (a).”

Claire Rattée: So “in good faith and with reasonable care,” I believe, is what was said. Can negligence still apply though, even if…? Could a practitioner be acting in good faith with reasonable care but still end up being negligent? Because my understanding is that they can. Again, I’m just trying to determine whether or not these liability protections will protect against negligence.

Hon. Josie Osborne: Just coming back again to the intent here, in the charter challenge that’s before the court, should the judge decide that section 31(1), where this implicit liability shield exists currently, is unconstitutional, we feel the best thing to do for patients, for their families, and for the health care workers is to ensure that they can continue under the operations of the act to provide psychiatric treatment to patients who are admitted involuntarily and to do so under an explicit shield that would be listed under section 16.

Now a health care provider who is providing said treatment in good faith and with reasonable care has that protection that’s provided to them under the act. Should somebody allege negligence and sue a health care provider — that can happen — it, of course, would follow the due process in court, which would examine the situation and the specific circumstances and make a determination in that case.

Claire Rattée: I appreciate that response. I think that starts to help to clear that up for me.

If I could go back really quickly, because a thought popped into my head. With the Health Care (Consent) and Care Facility (Admission) Act, can I just get clarity on whether or not a capable voluntary patient…? Does that act apply to them or is it still the Mental Health Act that applies based on what was said already about the Health Care (Consent) and Care Facility (Admission) Act that it doesn’t apply in any situation where it’s a psychiatric patient or was it just if it was an involuntary psychiatric patient?

Hon. Josie Osborne: Section 2 of the Health Care (Consent) Act specifically says that the act does not apply to the provision of psychiatric care or treatment of patients involuntarily detained under the Mental Health Act.

Interjection.

Hon. Josie Osborne: Again, Section 2 specifically states the act doesn’t apply to the provision of psychiatric care or treatment of patients that are involuntarily detained under the Mental Health Act. It’s a specific exemption in this case.

Claire Rattée: I appreciate that. I have so many questions on that, but I know I can’t get into it, because that’s not what we’re talking about. But I appreciate the clarity on that.

My next question would be if an involuntary patient is capable, but refuses treatment, what happens under this proposed framework then? Does this default then to that other act? Just so that I can clarify that.

[2:05 p.m.]

Hon. Josie Osborne: No, it does not default to the act. Again, a patient who is involuntarily detained under the act, whether they provide consent or are deemed to be incapable of providing consent, the treatment that is provided to that involuntarily detained patient is…. The exemption as outlined in section 2 of the consent act applies.

Claire Rattée: Just for clarification, even if they are deemed capable

whether they provide consent or are deemed to be incapable of providing consent, that the treatment that is provided to that involuntarily detained patient is the exemption, as outlined in how section 2 of the consent act applies.

Claire Rattée: Just for clarification, even if they are deemed capable of making that decision but they’re still being held involuntarily, their care would still be governed under the Mental Health Act?

Hon. Josie Osborne: Yes.

Claire Rattée: Talking about the liability and litigation risks, I’m wondering — and I don’t know; this might just be too broad, or it may be too difficult to answer — if there is a way to get a list of, specifically, what conditions the clause 1 immunity would apply under.

Hon. Josie Osborne: No. I don’t think that’s possible. Again, each situation is particular to that individual. That’s why form 5, the consent for treatment form, describes and explains that specific treatment plan for each patient. It wouldn’t be possible to outline every possible scenario or condition.

Claire Rattée: Would it be reasonable to assume then that, in a fairly simple term, it would be any treatment that’s provided in accordance to that patient’s treatment plan? It would cover that for liability?

Hon. Josie Osborne: If I understand the question correctly, I would just point back to the specific amendment, the addition in section 16 of (b.4): “providing to the patient a professional service or care or treatment authorized by the director under the act.” That is a fairly broad description of psychiatric care that could be applied under the act.

Claire Rattée: I think what I was getting at is: if there was something that was done outside of the treatment plan that had been signed off on by the director to an involuntary psychiatric patient — medication given, treatment given, something to that effect, something that was outside the scope of what was deemed admissible in that patient’s care plan and signed off on by or authorized by the director — would that still be covered, either in an emergency situation or a non-emergency situation?

Somebody accidentally gives somebody the wrong medication, for example, or determines that they think that this medication would be better, but it wasn’t authorized by the director. I’m just trying to understand in which conditions that would actually apply and then, obviously, that it still applies in an emergency situation.

Say somebody becomes incredibly violent, or they’re self-harming, or whatever it is, and then a clinician needs to make a determination about administering medication that hasn’t been authorized by the director at that point in time. They would still have liability coverage as long as they were acting in a non-negligent manner in good faith and with due care?

[2:10 p.m.]

Hon. Josie Osborne: I appreciate the member’s question here. I think getting at, for example, emergency situations that could arise, emergency situations are dealt with distinctly and under the common law.

Claire Rattée: Is that something that clinicians are advised on? Is that part of their training materials so that they understand that in any emergency situation, effectively it’s governed and covered with liability through a different law? So they know where to look for their coverage, I guess.

Hon. Josie Osborne: I think we are…. I mean, we’re veering into a place that is very detailed and specific to how physicians are…. We’ve been discussing how they are trained, how they are certified and licensed to practise what they do and, in the course of their decision-making about what the best treatment is for a patient, how they are protected.

There are avenues outside of this act in which a physician or a health care provider could be sued or investigated or some other process to look at the decisions they’ve made. Again, I just want to come back to the fact that under section 16 of the Mental Health Act, this pertains to a liability protection that pertains specifically to applying treatment that is done in good faith and with reasonable care and that it is specific to psychiatric treatment that is applied under the Mental Health Act to a patient that is involuntarily detained.

I think, you know, just kind of…. We’re broadening out into other areas and that don’t specifically pertain to this bill.

Claire Rattée: I appreciate that response. I think maybe if I frame it in this way, it’ll make more sense about why I’m asking.

What I’m concerned about is just ensuring, essentially, that a clinician will still be covered for liability in an emergency situation. I guess another way to word it might be: was there a determination about why we aren’t explicitly mentioning “in an emergency situation” or “according to the care plan” or more specifics about what is covered or what isn’t covered?

Is it just because this covers everything, and we don’t need to be concerned about that? Could there be benefit to making sure that that is explicit?

I’m just trying to ensure that, still, clinicians will have that coverage that they need, just given the fact that I think the understanding was always that they did under the deemed consent portion. I just want to ensure that they will still maintain that same level and that nothing is going to change. I understand the difference between implicitly implied and explicitly implied.

[2:15 p.m.]

But when something’s explicitly implied, I just don’t know if it would be helpful to have it explicitly applied so that it’s listed as what is covered or if this actually — the way it’s worded right now — covers everything.

It would be helpful to have it explicitly applied so that it’s listed as what is covered or if this actually, the way it’s worded right now, covers everything.

Hon. Josie Osborne: Again, this is moving an implicit liability shield from section 31(1) to an explicit shield in section 16 for psychiatric treatment. And I point to the definition of treatment in the act, which reads: “Treatment means safe and effective psychiatric treatment and includes any procedure necessarily related to the provision of psychiatric treatment.”

[2:20 p.m.]

Emergency health care is not explicitly stated in the current section 31(1) nor in section 16, the proposed amendment, because again, it is dealt with distinctly and under the common law.

Emergency health care is not explicitly stated in the current section 31(1) nor in section 16, the proposed amendment, because again, it is dealt with distinctly and under the common law.

Claire Rattée: Thank you. I really appreciate that.

Could the minister answer: does liability protection cover treatment that is later determined to have lacked lawful consent? Lawful consent obviously meaning that the person was capable of consenting did not give consent.

Hon. Josie Osborne: The deeming of consent and the application of treatment are two separate things. Under form 5, the consent for treatment, if the patient declines to consent or the treating physician’s assessment finds that the patient cannot consent to treatment, then the Mental Health Act director of the designated facility can consent to treatment on the patient’s behalf. But remember that the director who signs form 5 must be different, a different person from the treating physician.

So if the question is around the deeming of consent, and that is found through some process to be unlawful, as the member described, that is separate and distinct from the physician’s treatment, and the treatment is still protected under the auspices of the act.

Claire Rattée: Did the government receive any legal opinions on whether or not these changes could increase litigation risk under any other statutes, given the removal of deemed consent? And if they did, would I be able to know what the opinions on that were about whether or not there was any chance that this could increase litigation risk?

Hon. Josie Osborne: That is privileged information.

Claire Rattée: Will this change in any way potentially affect coroner’s investigations or patient care quality office complaints?

Hon. Josie Osborne: The answer is: no, it will not. This, again, is specific around liability and damages for a specific court case, that court action brought against a health care provider.

Claire Rattée: Also, how many health care workers have ever been prosecuted for providing services, care or treatment under section 28, 29, 30, 42? Are there any instances in British Columbia where that has happened? And if there are, have any of them been successful?

[2:25 p.m.]

Claire Rattée: Sorry, just to clarify. I just wanted to make it a bit clearer. I’m not expecting to know every single time or the outcome of all of them, just a general sense of whether or not this is something that happens frequently, recently and whether or not one has ever been successful. I don’t expect you to pull up every single instance.

Hon. Josie Osborne: Yes, in 2018, the court here in British Columbia used section 31(1) to defeat a battery claim for a patient having to take drugs involuntarily.

Claire Rattée: I would like to move an amendment on clause 1 here.

Is it okay if I…?

The Chair: Please speak to the amendment, Member.

On the amendment.

Claire Rattée: Thank you. I would like to amend clause 1 by adding the following subsection: “For the purposes of subsection 1(b.4), ‘authorized by the director’ means authorized in accordance with applicable provincial consent and capacity laws, established clinical standards and written protocols of the designated facility.”

Speaking to it, I believe that this ensures that liability protection only applies where directors act within the law and accepted clinical practice, not arbitrarily or outside of proper processes. I think that it protects patients and clinicians at the same time. Clinicians know when they are covered; patients know when there are guardrails.

[2:30 p.m.]

If this is an amendment that is deemed to be not necessary, I believe that with the repeal of “deemed consent,” the meaning of “authorized” becomes central to this debate. Leaving it undefined invites litigation and inconsistency. I think that this amendment would be responsible and prudent.

I do have some concerns about the way that this is currently worded. As I’ve stated previously, I do think it’s incredibly important that we make sure that health care

central to this debate. Leaving it undefined invites litigation and inconsistency. I think this amendment would be responsible and prudent.

I do have some concerns about some of the way that this is currently worded. As I’ve stated previously, I do think it’s incredibly important that we make sure that health care workers and clinicians have liability protection, especially if we want to be able to ensure that involuntary treatment is still provided in this province and if we want to avoid those situations of clinicians potentially hand-wringing and worrying about whether or not they’re covered.

I do think it’s also similarly important that we ensure that it is clear when they are covered and that it is clear when they are not. Unfortunately — I wish it weren’t the case — I do know of incidents where people have involuntarily received treatment that was not appropriate. It doesn’t happen frequently, but it does happen sometimes. I do think, if there is ever negligence that is taking place, that there should be an option to patients to be able to ensure that they get some kind of justice in that matter.

This could have very serious side effects and very serious harms for people. So I think it’s important that we still make sure that we’re also maintaining the rights of a patient to be able to ensure that they are not going to be taken advantage of and that there’s a mechanism by which that they’ll understand there are certain guardrails for those clinicians as well.

The Chair: All right, we’ll take a short recess, and then we’ll come back.

The committee recessed from 2:31 p.m. to 2:37 p.m.

The committee recessed from 2:31 p.m. to 2:37 p.m.

[Darlene Rotchford in the chair.]

The Chair: I will call the committee back. I have confirmed the amendment is in order. I will look to the minister to see if she wishes to speak to the amendment.

[2:40 p.m.]

Hon. Josie Osborne: Thank you very much to the member for putting forth the amendment.

I’m not going to support it, and the reason is this. First, the overall assumption is that the director is already acting in accordance with the law and that it doesn’t need to be explicitly stated. In fact, that would be outside of the standard practices in legislative drafting. It could conceivably add confusion by adding this to the act, as is proposed, in its reference to other consent capacity laws, other documents, other protocols.

I would also say this. If a director had court action taken against them, the court would consider all of those things — provincial consent and capacity laws, clinical standards, written protocols of the facility — and they would consider whether those actions were taken, again, as is explicitly stated in the Mental Health Act, in good faith and with reasonable care.

In summary, I don’t think that the amendment is necessary and therefore will not be supporting it.

The Chair: Okay. We will go to the vote on the amendment.

Division has been called.

[2:45 p.m.-2:50 p.m.]

The Chair: Does everyone agree to waive time? Okay, so we will go to the vote then. The question is on the amendment moved by Skeena.

Amendment negatived on the following division: YEAS — 4, NAYS — 5. [See Votes and Proceedings.]

The Chair: The motion on the amendment is defeated.

Claire Rattée: I’m wondering if the minister could provide some clarification around the use of virtual psychiatrists as it relates to this act and these amendments. If a virtual psychiatrist has to provide the director authorization, are they able to do that in compliance with clause 1 and still have those liability protections if this is a decision that is made through a virtual visit?

Hon. Josie Osborne: The answer is yes. That would qualify as a professional service or care or treatment as stated in the proposed section b.4 under section 16.

Claire Rattée: Then would clause 1 provide immunity for police or paramedics that are acting under medical direction in psychiatric crises?

[2:55 p.m.]

Hon. Josie Osborne: I think I’ll just come back to, again, the specific wording. Under section 16, a person is not liable in damages as a result of doing any

Hon. Josie Osborne: I think I’ll just come back to, again, the specific wording. Under section 16, “a person is not liable in damages as the result of doing any of the following in good faith and with reasonable care. Subsection (b.4): “providing to a patient a professional service, or care or treatment, authorized by the director under this Act to be given to the patient, including treatment described in a consent to treatment form signed under section 8 (a).”

So a professional service or care or treatment that’s authorized by the director under the act is what this liability shield explicitly protects a health care worker in the provision of.

Claire Rattée: Just to clarify that then so that I can make sure I’m understanding and on the same page here. So it’s not just about a health care provider though. It’s anybody that is providing a treatment or care under the authorization of the director. So that can include police, paramedics and any kind of first responders. It could basically cover anybody that’s doing that under that direction, but if it’s an emergency situation, that is not governed by this act and the liability protection is not within this amendment. That is within a different piece of legislation.

Hon. Josie Osborne: Yeah. Again, emergency health care is distinct and under the common law.

Claire Rattée: Does clause 1 protect clinicians when they’re treating patients who overdose multiple times in a day.

Hon. Josie Osborne: Again, it provides that liability shield to a person who is providing to a patient a professional service or care or treatment authorized by the director under this act to be given to the patient. I think the member is describing a number of different situations that could or could not occur, but this is specific to people who are detained under the Mental Health Act, under the provisions provided, for whom treatment has been authorized by the director.

So that is what…. The liability shield is for those health care providers, those care providers, working under those auspices, again, always when delivering that work and following good faith and with reasonable care.

Claire Rattée: I’m sorry. I know I’m asking a lot of questions that are kind of along the same line. I just want to make sure I’m covering bases of any offshoots that I can think of, just to make sure that this is still all applicable within this space.

So if a patient has a toxic-drug-related brain injury and they appear articulate, but they lack insight, that determination is made…. Again, same thing, this still applies?

Hon. Josie Osborne: I am not a medical professional, so I won’t speculate on the different circumstances a patient may or may not be under.

[Susie Chant in the chair.]

But, again, to say that this is very specific to patients who are detained involuntarily under the Mental Health Act, patients who have had psychiatric treatment authorized by the director, and the liability shield is for those care providers who are providing to a patient a professional service or care or treatment that’s authorized by the director under the act to be given to the patient.

Claire Rattée: Then when treating youth there is no difference? This is still…? The same rules apply? Youth being treated are still covered under this liability and under this act?

[3:00 p.m.]

Hon. Josie Osborne: Thank you to the member for the question. There’s no distinction between youth and adults. I’ll just point to the definition of “patient” in part 1 of the act. A patient means a person who, under the act, is receiving care, supervision, treatment, maintenance or rehabilitation, or is received, detained or taken charge of as a person with a mental disorder or as apparently a person with a mental disorder.

to the definition of “patient” in part 1 of the act, and “a patient” means a person who, under the act, is receiving care, supervision, treatment, maintenance or rehabilitation or is received, detained or taken charge of as a person with a mental disorder or as apparently a person with a mental disorder.

Claire Rattée: What about if it’s a parent that’s authorizing psychiatric treatment on behalf of their youth who has refused treatment? My understanding is that it would still have to be authorized by a director. But if that was at the discretion of a parent that was acting on behalf of that child, or maybe even just to make it more broad, in any sense where it’s a substitute decision maker, do these liability protections still apply? If so, do they only apply to the clinicians, or do they also apply to the substitute decision-maker that determined that course of action?

Hon. Josie Osborne: Again, this section applies to any person who is, following in good faith and with reasonable care, providing to a patient a professional service or care or treatment authorized by the director under this act. I think the pertinent piece here is: “authorized by the director under this act.”

Claire Rattée: Am I to understand then that, overall, substitute decision-makers are covered under this provision? Maybe I’m not completely understanding the process. Regardless, if a substitute decision-maker makes a determination about a treatment plan, I’m guessing that still has to be authorized by the director, which is why this liability protection would still apply.

It’s not as simple as a substitute decision-maker just going “yes or no” on a treatment plan. That still then has to go back to the director of the facility to authorize. Am I understanding that correctly?

Hon. Josie Osborne: This amendment is specifically focused on the persons providing the care. It is not an amendment that’s relevant to the person making the decision, although we have canvassed that in our debate today around consent and how that is provided, or when a patient is deemed to be incapable of providing that consent, what happens. We walked through the process under which the forms are signed and consent for treatment is given or deemed to be given.

Again, this amendment is specific on the health care providers, the care providers that are providing care to that patient under the authorization of the director under the act.

Claire Rattée: Sorry. I think some of my confusion was coming from when I was asking the questions around first responders being covered, because that’s beyond just a clinician or a health care worker if it’s also providing coverage to a police officer, for example, or something.

That’s where I wanted to clarify where that starts and ends, if that makes sense. So it doesn’t extend to a substitute decision-maker or a parent or anything like that. That’s likely governed in some other act or part of this act. But it does extend to a first responder, paramedic, police officer, anything like that.

Hon. Josie Osborne: This would be a person providing to a patient a professional service or care or treatment. I think “a person” is the broad category under which a person might be a physician, might be a nurse, might be a paramedic. But this is specific to a person providing to a patient a professional service or care or treatment authorized by the director under the act.

We also have canvassed, as part of today’s debate, around actions that care provider of any kind might do that are outside of the psychiatric treatment that the director of the facility has authorized. We’ve talked about emergency health care, for example, and how that is covered. But this bill specifically focuses on persons providing those services and treatment that are authorized by the director.

I don’t mean to be…. Yeah. Okay, thank you.

[3:05 p.m.]

Claire Rattée: I apologize. I realized what my mistake was there in not understanding. It’s about the term, actually, “administering the treatment.” It’s that person that’s actually giving the treatment. So somebody making a decision is not covered there. I apologize.

I would like to…. I’m getting close to being done on my questions here for clause 1

apologize. I realize what my mistake was there, not understanding. It’s about the term, actually, “administering the treatment,” so that person that’s actually giving the treatment. So somebody making the decision is not covered there. I apologize.

I’m getting close to being done on my questions here for clause 1. I would like to just go back a little bit around the consultation piece. I’m wondering if any Indigenous health organizations were consulted in the drafting of this, and if so, what their thoughts were.

Hon. Josie Osborne: Thank you to the member for the question. I really appreciate it.

This is a bill that is proposing some very narrow and focused amendments to make explicit what is currently implicit to protect health care providers in the provision of psychiatric treatment that’s authorized by the director under the Mental Health Act. So it doesn’t change clinical practice. It doesn’t change the operation of the act.

No Indigenous health organizations were consulted in the drafting of these amendments, but I do want to pause to reflect on the disproportionate impact that the toxic drug crisis has had on Indigenous Peoples, that Indigenous Peoples face generally when it comes to the really serious issues of severe mental illness and concurrent disorders.

[3:10 p.m.]

And I think this is an appropriate time to also mention that, with the commitment to undertake a review of the Mental Health Act, that is absolutely one of the intents and purposes in such a review: to deeply engage, consult and cooperate with Indigenous Peoples around the Mental Health Act, noting that disproportionate impact that is felt by Indigenous Peoples in the province, in part as a result of the type of treatment that we are discussing today and the circumstances that people may find themselves in, in which they are deemed, under the current Mental Health Act, to be incapable of seeking care for themselves and may be at risk to harm themselves or other people.

It’s a very serious issue, and I do really appreciate the question from the member.

Claire Rattée: Thank you to the minister for that response. As the minister knows, I represent an area that has a lot of Indigenous population and

harm themselves or to other people. It’s a very serious issue, and I do really appreciate the question from the member.

Claire Rattée: Thank you to the minister for that response. As the minister knows, I represent an area that has a lot of Indigenous population, and that was part of the reason why I was asking. Not only are Indigenous people typically more disproportionately affected by some of these issues but also, in a general sense, I think a lot of rural and northern communities are, particularly given that that is where a good portion of our Indigenous population in British Columbia lives.

I know we’ve mentioned and touched on this a fair bit earlier already, but part of the reason why I’m asking about these consultation pieces is because we have very different realities on the ground, as the minister knows, in northern and rural parts of the province. Currently there are more problems in those facilities, typically, when it comes to treating severe psychiatric illness and concurrent substance use disorders just due to a lack of resources, a lack of capacity and the fact that we’re typically in a different situation where you’re not going to have as readily the access to a psychiatrist.

That’s where I’m kind of wondering again…. I know I’ve said this a few times, but I just really want to make sure that this isn’t going to accidentally result in health care providers in northern or rural communities or Indigenous communities hand-wringing and worrying that they may not be able to provide the same care after this legislation passes. So that’s where I’m asking those questions from. Just trying to have a better understanding of whether or not they were consulted in the sense of talking to some health care workers and just saying: “If you read this, what would your interpretation be?”

I don’t know. Maybe health care workers don’t really read the Mental Health Act that clearly, and they’re just operating off of what they’ve been taught in school, and it’s fairly basic and understandable to them. I’m not sure.

But that’s where the questions are coming from — trying to have a clearer understanding of whether or not we know how the average clinician is going to interpret this when they read it and what their understanding is going to be of what is giving them the authority now to be able to act in that way when they deem that it is necessary and appropriate.

I’m assuming…. Based on some of the questions I have asked around consultation, I’m not anticipating that there…. I could go down a list of questions about consultation, but I think it’s probably irrelevant at this point because I don’t think that there was consultation outside of with Dr. Vigo on this as far as I can tell, based on the questions I’ve asked. If that could be clarified by the minister, I would appreciate it.

Hon. Josie Osborne: As we’ve canvassed this over today and yesterday, I know we’ve talked about some of the rationale for this bill, its narrow scope on the amendments that are proposed to move an implicit protection into an explicit protection for those care providers who are providing essential psychiatric care for people. These amendments have come, in part, at a time as the charter challenge in court proceeds.

[3:15 p.m.]

We want to mitigate the risk that should section 31(1) be deemed unconstitutional by the judge, those health care workers, those care providers can continue to do what they are doing and have the certainty of knowing that they’re protected in that work that they do every single day.

So Dr. Vigo, as we discussed yesterday, has been involved and supports these amendments. We’ve discussed the role of internal legal counsel, etc., that’s brought

the certainty of knowing that they’re protected in that work that they do every single day. Dr. Vigo, as we discussed yesterday, has been involved and supports these amendments. We’ve discussed the role of internal legal counsel, etc., that has brought us to today.

But again, just because this bill has been put forward by government now, at this time, in no way changes the intention of government to continue through with the commitment we’ve made around the review of the Mental Health Act, at which time numerous parts of the act will be considered and done so in a very deep, comprehensive and thorough way to address issues that have been brought forward by numerous different groups of people over the past years.

That’s why government has made this commitment. We want to ensure that people are getting the best care possible. As I’ve said in the House many times, involuntary care has a role to play in our mental health care system, but it always must be applied in a very thoughtful, comprehensively defined way and with the legal safeguards in place to protect people’s rights, their dignity and their ability to access the care that they may need.

Claire Rattée: Thank you to the minister. I think one thing that I really pulled out of that is “in a comprehensively defined way.” I think that’s part of what I have been getting at, and I understand that some of it goes a bit outside of the scope of what this piece of legislation is trying to achieve, but that is what I’ve been hoping to get out of this — that we can find a way to have that more comprehensively defined.

I know we spoke about it previously, about what exactly the regulations are that will guide a clinician in making a determination around whether or not somebody can give their consent and things like that. So I agree. I do think it’s important to have those things properly defined, because I think, also, from a legal standpoint — providing liability coverage — it’s important to understand what those definitions are.

I’m going to shortly here pass this over to my colleague to ask some more questions on clause 1. I have one question left on clause 1.

Before I do that, I just want to say thank you. I really appreciate that the minister has been very kind in answering all of my questions and allowing me and indulging me on some things that I know maybe have gone a little bit past the scope. I do really appreciate that.

I would just like to end on…. Just for the record, what exact statutory provision authorizes the treatment to which clause 1 immunity applies?

[3:20 p.m.-3:25 p.m.]

Hon. Josie Osborne: So, clause 1 of Bill 32, with its specific focus on any treatment authorized by the director under the act…. So the focus here is on section 8. I think that answers the member’s question.

Rob Botterell: Thank you, Minister. It’s nice to be back in committee. I missed it.

I just want to reiterate that mental health is a serious matter, and I certainly don’t want anybody to take from my, at times, jovial comments or colouring of answers that I don’t see this and the Green caucus doesn’t see this as an incredibly important issue.

Through the last day or so, there’s been lots of very helpful questions and answers and context provided. There are some items that have been discussed that have been brought to our attention by British Columbians following the proceedings, so I want to clarify a couple of items, and as we’re in section 1, I think I’ll be in scope.

I’d like to issue concern about the minister’s comments related to involuntary treatment and substance use disorders. Yesterday in here, the minister stated: “I also want to frame these comments, too, in the toxic drug crisis. This crisis is evolving on such a quick basis and demanding so much of us. I know that every member of the House stands together in knowing that we have to address this as best as we can so that it’s essential that people who need treatment can get treatment, and again, when they are unable to make these decisions in their best interest.”

I’d like to express my shared commitment to addressing the toxic drug crisis that has taken over 17,000 people in B.C. since it was declared a public health emergency. However, I’d also like to share concerns around the comment regarding the need for people with substance use disorders getting treatment “when they are unable to make these decisions in their best interest.”

The B.C. Human Rights Commissioner stated that involuntary treatment for substance use violates autonomy and self-determination, disproportionately harms Indigenous, Black, disabled, gender-diverse and low-income people, lacks evidentiary support and cannot be justified when B.C.’s voluntary community-based system is profoundly under-resourced.

In a joint letter, Harm Reduction Nurses Association and Doctors for Safer Drug Policy write that compulsory substance use treatment is ineffective and dangerous. They state — and I’m coming to a question:

“The evidence is clear and consistent. Compulsory treatment has no demonstrated long-term benefit. Relapse rates are extraordinarily high. One study reported 96.4 percent relapse within two months after mandated treatment. The risks of overdose and death are significantly elevated immediately after discharge from compulsory treatment.

“Involuntary settings sever trust, increase trauma and escalate risk. Leading human rights scholars have concluded that mass detention for treatment constitutes a grave violation of human rights and cannot be justified by claims of substance use disorder alone.

“As research and our clinical experience demonstrate, people are most vulnerable to overdose after periods of forced abstinence. Coercion increases risk; it does not reduce it.”

[3:30 p.m.]

To the minister, who is informing her guidance on the link between the responding to the toxic drug emergency with approaches like involuntary care?

The Chair: I’m going to ask the member how this actually correlates to clause 1, please. I recognize the correlation between the conversation yesterday, but related to…. I know it has a wide latitude, but I’m just

responding to the toxic drug emergency with approaches like involuntary care.

The Chair: I’m going to ask the member how this actually correlates to clause 1, please. I recognize the correlation between the conversation yesterday. I know it has a wide latitude. Could you clarify for the Chair, please, how it relates to clause 1.

Rob Botterell: I think the way it relates to clause 1 is that over the last day, we’ve been engaging on clause 1, and statements have been made in relation to clause 1 by the minister that have raised serious concerns amongst the public trying to understand what this section is intended to do and what its relationship is to the toxic drug crisis.

I didn’t bring in the toxic drug crisis. The minister did, and I quoted what the minister said. So therefore, I think it’s important on the public record both to hear this perspective but also to ask the minister the question I’ve asked.

The Chair: Very good. Thank you. I will accept your response. Thank you very much.

Hon. Josie Osborne: I’m pleased to address the concerns that the member’s brought forward. Thank you for doing so.

I want to be clear to the member that in our dialogue throughout this debate, my comments on the toxic drug crisis and on substance use disorder generally in no way should be inferred that that is a supposition that the act should apply to people who are experiencing only a substance use disorder, for example.

In fact, one of the reasons why we have Dr. Vigo advising us on psychiatry, the toxic drug crisis and concurrent disorders is to help interpret and help clinicians apply the provisions of the act to those people who are experiencing concurrent disorders.

The basis of the Mental Health Act is about providing care for those people who meet the conditions under the act. The four conditions generally, as understood, and that are outlined in the act are around severe mental illnesses in a place where a person may not be able to accept treatment or seek treatment, may not be able to understand or agree to it. That is why, as well, we have continued to deal with and add safeguards, like providing an independent rights advice service, for example, for those people who are detained under the Mental Health Act.

I absolutely share the member’s perspective that these are really serious matters and that these conversations need to be taken comprehensively, carefully, articulately, and that they must be made in a way where the patient is at the centre and that this is about the rights and dignity of a person. It is also, in government’s view, about being able to have, as part of a continuum of care for people with serious mental health illnesses, the ability to provide such care.

The substance of this bill here, Bill 32, is about protecting those workers who are providing the care, as we’ve been canvassing along the course of the debate. But just to come back to my original point, which is that I am fully aware of and understand how the Mental Health Act is applied and that this is not about forced treatment in any way for people experiencing substance use disorders alone. But the advice that Dr. Vigo has provided to help more consistently apply the Mental Health Act across the province for clinicians is intended to be a helpful thing.

Again, coming back to a lot of concerns that have been raised by different groups, different stakeholders, different parts of society about the Mental Health Act altogether, that is why we have committed to undertaking a review of the Mental Health Act. There will be a lot of opportunity under that review for different perspectives to be brought forward, and again, including the voices of people with lived and living experience, which need to be absolutely central to such a review.

[3:35 p.m.]

Rob Botterell: There’s an another aspect of the committee deliberations that I’d like to touch on and just clarify, recognizing that I have no interest or

of the committee deliberations that I’d like to touch on and just clarify, recognizing that I have no interest or licence to revisit speeches made at second reading.

One of the themes that has arisen on a number of occasions over the last day that we have been contacted about by British Columbians and by those that are watching these proceedings relates to the linkage between section 1 and, as the minister was just describing, the overall review of the act and the linkage there.

We know that any changes to this legislation need to be informed by experts, advocates and, as the minister just mentioned, people with lived and living experience. We need to make sure that people who need treatment can receive treatment in a manner that is aligned with human rights. When people receive mental health treatment in B.C., they must be treated with dignity and respect. These changes do not grapple with this, and as we’ve been advised over the course of the day, they’re not intended to.

I’d again like to echo my colleagues’ comments and express the need for the overhaul of the existing Mental Health Act to create concrete steps to build out a voluntary, person-centred mental health care system.

And we already know that there’s a lack of adherence to the existing act, which raises concerns around how clause 1 and the balance of the amendments will be implemented, with only a quarter of the necessary forms being filled out for involuntarily admitted patients. The existing procedural safeguards are not being adhered to, which raises the concern around liability protections and whether those liability protections may be found to be unavailable because of lack of following of procedural safeguards that is already occurring. It’s clear that so much work needs to be done to improve oversight and accountability.

Obviously, all people deserve to be treated with dignity and respect in the health care system, and it’s our greatest hope that the minister and cabinet will recognize the urgent need to work with front-line health care workers, experts, advocates and people with lived experience to develop that new system.

So clearly, we’re also very excited and hopeful about the review of the Mental Health Act, and we want to express our support. And we’ve had discussion over the last couple of days about the amount of consultation in relation to clause 1 and the amendments generally and discovered that it is a far cry from the level of consultation that I think the minister and others have indicated they would like to see in terms of the Mental Health Act review.

So a couple of questions I have. When will the review of the Mental Health Act be completed, and if there are recommendations in that review to repeal the changes that are subject of this amendment act, will the minister be making those amendments if the review suggests we’ve just gone down the wrong path?

The Chair: Again, I’m a little concerned with how the question around the upcoming mental health review connects itself with clause 1 of the Mental Health Amendment Act (No. 2), 2025, just in terms of how that connects specifically to the clause.

[3:40 p.m.]

I know there’s lots of latitude in clause 1, but that’s a lot of latitude.

Member, I will look to the minister for her preference, but you really are well out of scope here.

I know there’s lots of latitude in clause 1, but that’s a lot of latitude. Member, I will look to the minister for her preference, but you really are well out of scope here.

Hon. Josie Osborne: Thank you, Chair. I agree with your assessment. This is outside the scope of this bill. I’d be very happy to talk to the member when we’re done debate about his question.

Rob Botterell: Thank you, Minister, and thank you, Madam Chair. In deference to a good friend of mine and a colleague, not in the same party, on the opposition side of the benches, I would like to begin asking some questions in relation to the amendment that are, I think you’ll find, clearly within the scope and won’t be testing the latitude of clause 1 comments.

Can the minister describe what a professional service would entail?

[3:45 p.m.]

Hon. Josie Osborne: The member, I’m certain, has noted that there is no definition of “professional service” in the act, but a reasonable person might assume that it is a service within the scope of practice of that particular provider or professional providing the service or care.

I cannot provide an exhaustive list to the exclusion of anything else, but I will note that it is terminology that’s consistent with the already existing section 8.

Rob Botterell: In the section as well, there…. When we read it: “to provide to a patient a professional service, care or treatment….” To the minister: could you provide a definition of “care”?

I know that in our discussion earlier this spring of other bills, we requested dictionary definitions. But I’m not sure what…. If somebody’s asking what forms of care are covered or what qualifies as care, it would be helpful for us to know what that is.

[3:50 p.m.]

Hon. Josie Osborne: Thank you to the member for the question. My answer is similar to the answer that I just gave on what is a professional service.

I just want to point back to that part of my answer in saying what a reasonable person might assume is a professional service or what is care within the scope of practice of that professional, and again point to the importance and the responsibility of said professional care provider to exercise their discretion and reasonable judgment and, as is outlined in the act, that it is applied as appropriate to the patient’s condition.

I will also point out that this is language that has been in the act since the 1960s, that it has been carried forward and that, even in the absence of a specific legal meaning, it was not something that was contemplated in Bill 32.

In any individual case that was brought forward before the court, of course, the judge would consider a care provider, an individual’s actions, and look at the individual’s situation there and make a determination as to what or whether something constitutes professional service, care or treatment, just as the judge will look at: was that delivered in good faith and with reasonable care?

Rob Botterell: Thank you, Minister.

What would be the difference between treatment and care?

[3:55 p.m.]

Hon. Josie Osborne: Treatment is defined in the act. It means the safe and effective psychiatric treatment and includes any procedure necessarily related to the provision of psychiatric treatment.

I think “care” can be understood more broadly as the provision of services that maintains health, prevents disease, treats injuries or illnesses and disabilities. It is more the broader concept of patient well-being beyond just treatment, so that may involve improving or maintaining the health or quality of life of a person as much as possible.

Rob Botterell: Thank you, Minister.

Then how would you distinguish care from a professional service?

[4:00 p.m.]

Hon. Josie Osborne: Two answers ago, I spoke to professional services, and in my previous answer, I spoke to

Hon. Josie Osborne: Two answers ago I spoke to professional services, and in my previous answer, I spoke to the definition of treatment and what might reasonably be considered to be care. Again, just pointing out that this is phraseology, this is language, that has been carried forward in the act since the 1960s. I’d invite the member to be more explicit if there’s a particular concern he’s bringing forward or what he might be driving towards so that I can better understand his line of questioning.

Rob Botterell: I’m approaching my question this afternoon from two perspectives. One perspective is to make sure that those that are extraordinarily concerned about this legislation have on the record a description of key elements of the liability protection that is being proposed so that it’s on the record and in Hansard for future reference and, secondly, to just ensure that the scope of liability protection is sufficient.

From my perspective, respectfully, just the fact that something has always been done this way doesn’t necessarily mean that it’s not going to introduce either some uncertainty about something being missed or something being needed to be added.

You know, this act has historically included, and continues to include, the provision of physical restraints, use of force, electroconvulsive therapy, forcible injections, solitary confinement. Can the minister explain if these strategies — I guess they’d be called — are covered by the definitions of professional service or care or treatment?

[4:05 p.m.]

Hon. Josie Osborne: Before I answer a little more fulsomely, I just want to recognize the sensitivity of the conversation. I know it is difficult to speak of these things, and as the member and I have both referenced, these are really serious matters. I want to be clear that our debate today is centred on Bill 32, and that it necessarily brings up a lot of thoughts and feelings, emotions, opinions, perspectives, all of which are valid, about things that can happen when a patient is involuntarily detained under the Mental Health Act and when psychiatric treatments are delivered to the person.

Again, I want to point to the act and its definition of “treatment,” meaning “safe and effective psychiatric treatment includes any procedure necessarily related to the provision of psychiatric treatment.” The act itself does not reference the specific “strategies,” I think is what the member referred to them as. They are not listed in the act.

And again, I want to point to the due care attention, the need to apply treatment in good faith, with reasonable care and in the discretion and professional judgment of the care provider who is applying treatment.

I also want to note that I think some of what…. You know, I really take seriously what the member is saying about this line of questioning and why it’s important and, again, point back to the need. I think it’s underscored in this line of dialogue here. The Mental Health Act necessarily must be reviewed, and will be, because some of these questions around what, how, when and why can be answered, and should be answered, through the review of the act.

So I think some of what we may discuss today is just going to be more appropriately placed in that. I want to be clear, once again, that bringing forth Bill 32, which necessarily has this narrow focus on these amendments around liability protections and providing them explicitly for health care providers, in no way is to say that the review of the act will not take place. It is happening now for a specific set of reasons that we have canvassed today and yesterday, but the Mental Health Act review is a very, very important component of government’s work moving forward, especially in light of the really important conversations that are taking place in the public.

Rob Botterell: Thank you, Minister, and thank you, Madam Chair.

The Chair: Did you want to speak through the Chair?

Member.

Rob Botterell: Thank you, Madam Chair, and thank you to the minister. I also wish to acknowledge…. I’m very familiar over many years, where discussions like this that we’re having on a serious matter, with sensitivity, that the implications can in a very unintended way cause triggering events. So I just want to make clear that I’m trying to be as sensitive as I can but also be clear in my questions.

I respect the Chair’s ruling earlier, but I do note for the record that the minister is bringing us back to a discussion of an issue which I’ve been advised, and I accept, that is outside the scope of the discussion of this, which is the Mental Health Act review. So I’m not going to raise a further question on that, not because it hasn’t come up again but because I understand that’s outside the scope.

[4:10 p.m.]

The question I do have, through the Chair to the minister: is detaining someone for observation considered treatment?

question I do have: is detaining someone for observation considered treatment?

[4:15 p.m.]

Hon. Josie Osborne: As the member, I know, understands, detaining a person under the Mental Health Act can only be done when the criteria that are outlined in section 22 are met, and a person may be observed after they are detained. I don’t think you could consider the detainment to be treatment, but the act of observing for the purposes of assessment, that observation and assessment together, could, I think, reasonably be considered part of treatment and care.

Rob Botterell: Thank you, Minister.

So then I take it from the answer that detaining someone for observation would fall under treatment. Is that where we land? Just to clarify.

Hon. Josie Osborne: I might ask the member to clarify. A person is not detained for observation.

A person is detained because a physician or a nurse practitioner is of the opinion — I’m citing from the act — that the person to be admitted or the patient admitted under subsection 1 of section 22 of the Mental Health Act requires treatment in or through a designated facility; requires care, supervision and control in or through a designated facility to prevent the person’s or patient’s substantial mental or physical deterioration or for the protection of the person or patient or the protection of others; and cannot suitably be admitted as a voluntary patient.

[4:20 p.m.]

Again, a person is not detained for observation. They are detained because they meet those criteria, and then observation is an action that may happen after that detainment.

Rob Botterell: Thank you, Minister.

So the observation

they are detained because they meet those criteria and then observation is an action that may happen after that detainment.

Rob Botterell: The observation is a form of treatment or a form of care. I’m looking at b.4 and trying to see where observation fits within the definition of b.4. Maybe I’m misconstruing the section, but I’m just trying to understand. This liability protection that we’re looking at is intended, presumably, to also cover observation.

People can be held for a period of up to 48 hours for observation, often by nurses and often when the person is suspected to be engaging in stimulant use and then be released shortly after. It’s a step in the process. But I’m just trying to understand how it fits within the liability protection framework.

Hon. Josie Osborne: Let me do my best to try to answer in my words.

Once a person is detained under the Mental Health Act, everything that happens, even in that first 48 hours…. Whereas the member says it might be a person who…. Well, I won’t even speculate. At that point, the actions that are undertaken all form part of that professional service care or treatment, the delivery of which is protected. The liability waiver is given through the addition of subsection b.4 in section 16.

As to whether observation is a professional service or care or treatment, I won’t speculate. It is that group of services together, the professional service, care and treatment. The observation, the assessment, what is deemed to be necessary under the discretion and judgment of the professional involved.

Rob Botterell: Thank you, Minister. The subsection is drafted as “providing to a patient a professional service, or care or treatment.”

That observation — there are three options here. Which one is it?

[4:25 p.m.]

Hon. Josie Osborne: Whether observation is deemed to be professional services, care or treatment — I don’t think I understand the member’s question — it’s encompassed in that. It doesn’t matter which category it fits into in the sense that the liability extends to all three of those things listed in that phrase of “professional services, care and treatment.”

Rob Botterell: Thank you, Minister. I’m sensing a certain degree of frustration with my line of questioning, so I’ll ask one more question that is unrelated to observation and then move to other aspects.

Would this definition of professional service or care or treatment include physical health interventions?

[4:30 p.m.]

Hon. Josie Osborne: If I understand where the member is going here, this is not a clause that is intended to apply to the general physical health of a person. It is very specific in the professional service, care or treatment that is authorized by the director under the act to be given to the patient.

If I understand where the member is going here, this is not a clause that is intended to apply to the general physical health of a person. It is very specific in the professional service, care treatment that is authorized by the director under the act to be given to the patient.

Again, just referring back to the definition of “treatment,” meaning the safe and effective psychiatric treatment, including any procedure necessarily related to the provision of psychiatric treatment. An example: a person who was admitted…. Again, this is around people who are involuntarily admitted under the Mental Health Act because they meet the criteria as listed in section 22. They are receiving psychiatric care.

If there’s another physical health issue — I don’t know, an infection or something like that — that is not the type of care that is covered under this clause. This has a very this has a very specific meaning, and I think the meaning is defined in the act.

Rob Botterell: My understanding, and I just want to see if I understand this correctly, is that treatment is determined by the form 5. Would the provision of professional service, care or treatment that’s covered by this proposed protection of liability clause in clause 1…? Would the provision of that be guided…? I’m still trying to understand the distinction here, having only looked at this act for a day or two. Would that be covered under the Health Care (Consent) and Care Facility (Admission) Act?

Hon. Josie Osborne: This question is very similar, I think, to something that we have already canvassed with the member for Skeena, but I would ask if the member wouldn’t mind asking again so we could determine if there’s a difference in the question he is asking.

Rob Botterell: I wasn’t here for that. My understanding is that the form 5, in my words, is the core document that determines treatment. Would the provision of professional service, care or treatment through the form 5 be guided under the Health Care (Consent) and Care Facility (Admission) Act?

Hon. Josie Osborne: The answer is no.

Rob Botterell: Thank you, Minister.

If it’s not guided by the Health Care (Consent) and Care Facility (Admission) Act, then where does the authority arise from?

Hon. Josie Osborne: It arises from section 8 of the Mental Health Act. I understand the member wasn’t here for questions that we previously discussed with the member for Skeena, but I will say we have discussed this extensively today.

Rob Botterell: Thank you, Minister.

[4:35 p.m.]

One of the items that relates, as I would expect — but I’ll be seeking some clarification — to the ability to avail oneself of this liability protection would relate to the process and the documentation in relation to the providing of a professional service or care or treatment. Given the Ombudsperson’s findings of

and the documentation in relation to the providing of a professional service or care or treatment.

Given the Ombudsperson’s findings of significant and continued non-compliance with procedural requirements for involuntary admissions under the Mental Health Act, we’re concerned that this government is not addressing the serious issue of non-compliance.

In Fraser Health, for example, the legally required admission documents were missing, late or improperly completed 90 percent of the time. The average found only 28 percent compliance across the province. These documents include forms outlining reasons for detention, treatment consent, notification of a patient’s rights and notification to relatives.

To the minister: what happens if these forms are missing and how does it potentially impact the liability protection that you’re proposing be enacted here?

[4:40 p.m.]

Hon. Josie Osborne: Thank you to the member for the question.

First, I just want to address the Ombudsperson’s report and say that it was a serious report, and the recommendations that were provided were accepted by government. The Ministry of Health has been working closely with health authorities to improve practices, and I am happy to say that there has been a significant improvement in compliance with the requirements, and that is exactly what I, as minister, would expect to see.

As long as the treatment was authorized by the director, then it is covered by the liability shield. I would point out that it’s not limited just to treatments that may be outlined on form 5 and, as the clause is phrased, that it is the “professional service or care or treatment authorized by the director under this act to be given to the patient, including treatment described in a consent-to-treatment form signed under section 8(a).”

Rob Botterell: Thank you, Minister.

Focusing on the items that are covered under form 5…. It seems reasonable that it would be difficult to determine whether the care was reasonable and in good faith, as set out in section 16, if there’s no record of notification of a patient’s records and notification to relatives, no information outlining the reasons for detention.

So I would appreciate the minister’s perspective on the relationship between incomplete forms and the ability to create and have in front of those looking at this the necessary information to determine whether care was reasonable.

[4:45 p.m.]

Hon. Josie Osborne: I think the member’s question underscores the importance of documentation, be it records, forms, notes. It would be, I think, inappropriate for me to broadly speculate on the relationship between incomplete forms and whether they comprise the necessary information to determine whether care was reasonable, because that is the job of, for example, the courts.

If in the case, in the delivery of care, an action is taken and brought before the court, then it would be looked at, you know, based on the evidence in that situation as to whether professional services, treatment or care was delivered in good faith and with reasonable care. Again, just emphasizing that it would be, you know, the specifics of that particular case that would be examined by a court, for example.

The Chair: Just be advised that this will probably be the last question for this evening.

Rob Botterell: I would like to return with a follow-up question to a discussion we had yesterday around suspension of the court decision, which is one of the main triggers, if not the main trigger, for considering this amendment on a very rushed basis.

I believe that if you review the court records for the case in question, which I encourage you to do, you will find your legal counsel has requested that the court grant a one-year suspension to the effective date of any court declaration, striking down section 31 or section 8. You will find that counsel for the Council of Canadians with Disabilities have advised the court that they do not oppose a six-month suspension with the proviso for extension beyond six months with leave of the court.

While it is true that the agreement of the parties to the litigation is not determinative, there is no case of which I am aware where, in similar circumstances, the court has refused to grant a suspension as requested.

[4:50 p.m.]

To the minister, my question is: are you aware of such a case? If so, please, it would be appreciated if you could advise British Columbians and organizations and individuals considering this legislation so they can review that decision and satisfy themselves that this

and if so, please, it would be appreciated if you could advise British Columbians and organizations and individuals considering this legislation so they can review that decision and satisfy themselves that this is not an option open for the government to consider.

I have a couple of follow-up questions, but I’ll just leave it there, given the time.

Hon. Josie Osborne: Thank you to the member for Saanich North and the Islands and the member for Skeena for today’s dialogue.

To the member’s question, I think the point here is that this situation has never before arisen. Even in a suspension of the declaration of invalidity, we do not have clarity on the effect of such a suspension on civil liability. And we think it’s important to protect health care providers. That’s why we brought the bill forward.

Noting the hour, Madam Chair, with that, I move that the committee rise and report progress and ask leave to sit again.

Motion approved.

The Chair: Thank you. This committee stands adjourned.

The committee rose at 4:55 p.m.