Proceedings in the
Douglas Fir Room

The House in Committee, Section A.

The committee met at 2:57 p.m.

[George Anderson 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, Mental Health Amendment Act (No. 2), 2025, to order. We are on clause 1.

On clause 1 (continued).

Jeremy Valeriote: I’ll ask for a bit of indulgence as I take over from my colleague here, but I will start where he finished off.

The Premier is on record saying that nothing operationally will change. It’s our belief that there will have to be changes to the system. Shifting where consent is and where liability shields can be found is inherently and deeply connected with systems change and change management.

Form 5, titled “Consent for treatment (involuntary treatment),” currently references sections 8 and 31 of the Mental Health Act. The director gets authority to authorize and direct treatment for involuntarily admitted patients under sections 8 and 31 of the Mental Health Act. Changing the laws which give validity to form 5 is concerning.

The question is: how will the minister provide guidance to the health care system for these changes?

[3:00 p.m.]

Hon. Josie Osborne: Welcome back, everybody. I would just like to take the opportunity to introduce a new staff person who is supporting me today, John Tuck. He is the Assistant Deputy Attorney General, and I welcome him. Thank you for being here.

The amendments don’t impact clinical practice or operation of the act. Section 8 contains the authority for involuntary treatment, as I have described in multiple answers. Forms like form 5, which the member references, will be updated, and if these amendments pass, then, of course, updates will be sent out to health authorities and clinical providers, etc.

Jeremy Valeriote: As we understand, front-line health care workers will reasonably be impacted and concerned by the rollout of these changes. How will the minister ensure that the entire system will be ready to adopt the changes?

Hon. Josie Osborne: There will be no operational changes. We are moving an implicit liability shield to an explicit liability shield. There will be no operational changes that health care providers need to be informed about. But, of course, I’m sure they are aware of what’s taking place right now with respect to discussion about these amendments.

Notifications will be sent out, again, through health authorities and other health care partners to ensure that people are aware of what the amendments were, But again, this does not impact clinical operations.

Jeremy Valeriote: We’ve heard that even these discussions around changing where protection liability is found and the potential declaration of invalidity of deemed consent have stirred up some uncertainty. As it’s currently written, this bill will come into force upon royal assent. What is the plan to communicate these changes?

Hon. Josie Osborne: Again, repealing section 31(1) and replacing that implicit liability shield with an explicit declaration in section 16 does not change the operation of the act. Regardless of the outcome of the court case — I think that’s where the member is getting to — the operations of the act don’t change. Therefore, I think I’ve answered the question about how we will be notifying health authorities.

Jeremy Valeriote: I apologize for any repetition.

Earlier in committee debate, the member for Skeena asked some excellent questions around consent, treatment and liability protection. I’d like to reference a question posed on Thursday afternoon about whether or not the government received legal opinions on whether or not these changes could increase litigation risk. The minister responded to say this is privileged information.

Without putting pressure on the minister in any matter that cannot be shared publicly, I’d like to shine a light on the heart of this question. Although there have been some improvements to compliance for completing the required forms for involuntary admission and treatment in designated facilities, we know that compliance is far from 100 percent.

[3:05 p.m.]

I’ll reiterate that these documents include forms outlining reasons for detention, treatment, consent, notifications of patients’ rights and notification to relatives. These feel quite consequential. When we’re discussing matters as serious as consent, health care delivery and forced treatment, I think it’s important that we understand the full scope of these proposed changes, especially as they pertain to the intent of this legislation.

treatment consent, notifications of patients’ rights and notification to relatives.

These feel quite consequential. When we’re discussing matters as serious as consent, health care delivery and forced treatment, I think it’s important that we understand the full scope of these proposed changes, especially as they pertain to the intent of this legislation. The minister has stated that it is to ensure liability protection for health care workers is explicitly included in the Mental Health Act if section 31(1) is declared unconstitutional.

It appears that deemed consent is no longer explicit but implicit in that health care workers receive authority to deliver professional services or treatment or care under section 16, of which they are protected from liability when delivering this treatment in good faith. This clause references section 8, which allows a director to authorize treatment and requires them to fill out all required forms.

The question is: could protection liability be weakened now given the noncompliance of required forms?

Hon. Josie Osborne: I believe this is beyond the scope of the amendments that we’re proposing. Nothing changes about the authorization process. References to section 31(1) would be removed, however, and forms and things would be updated.

I do want to take the opportunity…. Last week, when speaking with the member for Saanich North and the Islands, we did canvas the subject of compliance, and it’s a very important one. I’m going from memory, but I believe he cited the number 28 percent of forms being completed. I just wanted to correct, for the record, that in 2017, for example, there were 76 percent of admissions where form 5 was completed. By 2020, that had risen to 82 percent. That’s five years ago.

We continue to work with health authorities to ensure that forms are filled out adequately and completely and understand the importance of that to the process. I know that the health authorities and care providers take this matter very seriously, as do we, and that’s why we’ll continue to do this work with health authorities.

[3:10 p.m.]

Jeremy Valeriote: Thank you, Minister.

I don’t understand the scope issues. I’m still going to ask. Thank you to the minister for the form percentages from the last few years.

understand the scope issues. I’m still going to ask. Thank you to the minister for the foreign percentages from the last few years.

I’ll continue. Harm Reduction Nurses Association and Doctors for SAFER Drug Policy released a joint statement to express their opposition to involuntary treatment for people with substance use disorders. I’ll read some highlights from the statement for the record.

“Canadian Nurses Association code of ethics requires nurses to ‘respect the inherent dignity and autonomy of all people’; provide care only with voluntary, informed consent; support capable people’s right to refuse treatment; and uphold human rights as protected by the Canadian Charter. The Canadian Medical Association code of ethics similarly requires physicians to respect autonomy, avoid harm and maintain integrity even in the face of political pressure.

“Forced treatment is incompatible with these standards. To participate in involuntary treatment for substance use disorders is to violate the core values of our professions, including non-malfeasance, do no harm, respect for persons and justice. No government can legislate away these obligations.

“Nurses and physicians across B.C. already experience extreme moral distress due to the ongoing crisis, chronic system failure and the daily, preventable deaths they witness. Involuntary treatment would force us to act against our ethical commitments, inflicting profound moral injury and exposing us to liability even with legislative shielding. We cannot say we are on the right side of medical ethics when the government needs to amend a law just to shield us from lawsuits for our activities. Coercion of practitioners mirrors the coercion proposed for patients. Both are unacceptable.

“This legislation emerges from election season moral panic rather than public health evidence. Research on moral panic shows predictable features: concern, hostility, consensus, disproportionality and volatility. The current framing of people who use drugs as “unable to make decisions” is not evidence-based. It is stigma that fuels criminalization and further harms. Misinformation and disinformation about safer supply, decriminalization and voluntary treatment have circulated widely, but policy must be driven by evidence, not by fear, political pressure or manufactured outrage.”

These physicians, nurses and allied care workers are calling on the province to withdraw these proposed amendments to the Mental Health Act. We believe the Charter challenge must proceed without political interference.

So the question is: will the minister consider the impact these changes will have on front-line workers and the entire mental health system in B.C. and stand down these proposed changes?

Hon. Josie Osborne: I disagree with the member’s characterization that proposing a bill of this nature is political interference. It makes what is implicit now explicit and continues to provide that liability shield for health care workers delivering treatment.

I also want to be very clear that nothing about the main substance of the Mental Health Act changes with respect to the criteria that must be met when a clinician makes an assessment of whether somebody should be involuntarily admitted.

[3:15 p.m.]

This is not about involuntarily admitting people with a substance use disorder. This is about providing care through involuntary care and admitting people who have serious mental illnesses and are not in a position to be able to make decisions about their care. They may have a concurrent substance use disorder, but this does not focus on people who only have a substance use disorder.

Section 22 very clearly outlines the criteria that must be met. There are a number of safeguards in the act so that people have the right to a second opinion, people have the right to be advised about

disorder, but this does not focus on people who only have a substance use disorder.

Section 22 very clearly outlines the criteria that must be met. There are a number of safeguards in the act so that people have the right to a second opinion, people have the right to be advised about independent rights advice.

I understand how serious this matter is. I appreciate the member’s question, but it does not pertain to this bill, these amendments, and we are not changing the scope and nature of the act.

Jeremy Valeriote: It’s our perception that these changes could be perceived as consent to harm — not only consent but protection in case patients advocate for themselves, appeal a detention or claim harm or malpractice thereafter.

What is the minister’s vision for reducing the harms experienced under the Mental Health Act?

Hon. Josie Osborne: I believe this is a question that is out of scope.

Clause 1 approved.

Claire Rattée: I’d like to move an amendment that would go between clause 1 and 2.

The Chair: You can speak to the amendment, and then we’ll determine whether or not it’s in order.

Claire Rattée: The amendment that I’m moving is that the following section would be added as 2.01. It states: “As it relates to treatment, nothing in section 16(b.4) may be interpreted as authorizing treatment provided contrary to the requirements of applicable provincial consent and capacity laws.”

My belief is that this avoids any argument that immunity itself becomes a backdoor source of treatment authority. It forces the government to ensure that whatever treatment regime exists is consistent with any future capacity framework.

I think that if the government claims that this is self-evident, then writing it into statute simply confirms that what they say is already true and reduces any future Charter risk.

The Chair: Okay. The committee will take a brief five-minute recess and return at 3:23 p.m.

The committee recessed at 3:17 p.m.

The committee resumed at 3:24 p.m.

[George Anderson in the chair.]

George Anderson: Good afternoon, Members. I call Committee of the Whole on Bill 32, Mental Health Amendment Act (No. 2), 2025, back to order.

We’ve deemed that the amendment is in order, and we’ll look to the minister if you have any comments.

[3:25 p.m.]

Hon. Josie Osborne: Thank you to the member for bringing forward the amendment.

I’m not going to support the amendment, for reasons similar to last week, in that it is redundant and just simply not good legislative drafting practice to have redundancy built into the legislation that way.

This provision already exists in the act. If a person asserts that care isn’t properly authorized, the recourse is the court, which would consider the specific situation at hand and make a decision.

The Chair: Seeing no further questions or comments, I’ll call the question on the amendment.

Amendment negatived.

Claire Rattée: Chair, I apologize. I was getting up a little slow there. I have one other amendment I’d like to move in between clauses 1 and 2, please.

So it would be section 2.01 around immunity. So 16.1, section 16(b.4) does not apply to negligent actions or to acts taken in bad faith or in a manner inconsistent with this act or other applicable provincial consent and capacity laws.

For me, this ensures that the new immunity clause cannot be used to shield negligent, malicious or clearly unlawful conduct. It reassures the patients and families that liability protection is not a blank cheque while giving clinicians confidence when they act in good faith and within the law.

The Chair: Okay. We will take a brief five-minute recess and return at 3:32 p.m.

The committee recessed at 3:28 p.m.

The committee resumed at 3:33 p.m.

[George Anderson in the chair.]

The Chair: Good afternoon, Members. I call Committee of the Whole on Bill 32, Mental Health Amendment Act (No. 2), 2025 back to order. The amendment has been deemed in order. I’m recognizing the Minister of Health has comments.

Hon. Josie Osborne: Yes. Thank you again to the member. I won’t be supporting the amendments because section 16 starts out with a clause with wording that speaks to the fact that persons must act in good faith and with reasonable care. So that requirement is explicit there. So adding this, while I appreciate the intention, is redundant and inconsistent with sound legislative drafting principles.

The Chair: Seeing no further questions, I’ll call the question on the amendment.

Amendment negatived on division.

The Chair: Recognizing the member for Skeena.

Claire Rattée: Thank you, Chair, and thank you for continuing to indulge me on these. Can’t hurt to try, right? I keep trying to put those things in there.

On clause 2 here, I know it’s difficult because the two clauses are very closely linked. We’ve talked about that, and I appreciate the leniency that the minister has given on kind of bouncing back and forth on these questions over the last couple of days.

[3:35 p.m.]

So on clause 2, I would like to ask why the government chose to not consult with provinces such as Alberta or Ontario, whose models successfully replaced the deemed consent provisions. I’m asking about that because obviously, we are on clause 2 now, and it’s about repealing deemed consent. So just for my benefit here, knowing that these are provinces that had a similar

why the government chose to not consult with provinces such as Alberta or Ontario, whose models successfully replaced the deemed consent provisions. And I’m asking about that because, obviously, we are on clause 2 now, and it’s about repealing deemed consent.

And so just for my benefit here, knowing that these are provinces that had a similar experience of having to go through repealing that and then basically putting in either a new piece of legislation or making an amendment to existing legislation to replace that portion…. I would like to understand why we didn’t look to models that already exist out there, why we didn’t speak with other provinces to understand how they handled it and what their experience has been like since and how that has been implemented.

Hon. Josie Osborne: These amendments are very focused on the liability shield, moving from an implicit expression in section 31(1) to an explicit, more robust expression in section 16. They don’t change the consent regime in the act. They don’t repeal consent. They don’t touch consent.

I understand why the member is asking the question, but the appropriate place for that will be in the review of the Mental Health Act.

Claire Rattée: I understand that 31(1), which is obviously what we’re talking about here with clause 2, was added to address a previous court case, and it was to address liability issues. But in my opinion, it ignores the fact that in practice, 31(1) also served as the statutory override to consent. I’m wondering if the minister would agree with that characterization and, if so, then why these decisions are being made in the way that they are being made.

Hon. Josie Osborne: I wouldn’t agree with the framing of the member’s question. On Thursday or Friday last week, maybe both days, we did talk about this provision being added to the act in 1981. I think it’s important to remember, again, that involuntary treatment was provided for decades before the addition of 31(1).

I actually think this conversation is very indicative of the confusion that exists generally, and that is exactly why we wish to address this, so that there is not confusion for those health care workers who are providing care to people who have been involuntarily admitted under the act.

[3:40 p.m.]

Claire Rattée: Thank you to the minister. I appreciate that. I think that that ties in well to my next question, then.

I know this may be potentially more difficult to answer just because I’m asking you to go back to 1981, when you weren’t in government, to kind of, I guess, pontificate a little bit on what the idea was behind this. But I’m

I think that ties in well to my next question, then. I know this may be potentially more difficult to answer just because I’m asking you to go back to 1981, when you weren’t in government, to kind of, I guess, pontificate a little bit on what the idea was behind this.

But I’m hoping the minister could advise on why section 31(1) was added after the court case rather than adding to or expanding section 8. If there is any information that the minister might have access to that could help me and others to understand what the purpose of that was, then, and what the thought process was at the time.

I would agree with the minister’s characterization that this has become very challenging and very confusing for people, but I’m hoping to understand why that decision was made, because I would assume there must have been a reason behind the decision to add section 31(1). I’m hoping that we can kind of come to an understanding about what that decision was, why it was taken and how that plays into, again, the decision to bring forward the amendments that are being brought forward.

Hon. Josie Osborne: This is a challenging question to answer. All I can say is that the provision was added in 1981 through a miscellaneous statutes amendment act after the Supreme Court released its decision on medical consent in Reibl v. Hughes, 1980. It was intended to provide protection for individuals who administer treatment to involuntary patients under the act against liability for the tort of medical battery. But we don’t have insight into what the government or the drafters of the day were thinking specifically with an amendment to the act in that way.

Claire Rattée: Based on that…. I mean, I appreciate the response. I understand that it’s difficult to really understand what was going through the minds of the other MLAs of the day that made this decision, but I’m hoping that the minister can answer for me again…. It’s a similar question to the one I asked last week.

I understand that legal opinions that are provided to cabinet are confidential and that they can’t be disclosed, but can I at least understand whether or not legal opinions were obtained on this to ensure that there won’t be unintended consequences? Regardless of whatever was in those legal opinions, at the very least that cabinet did obtain those legal opinions to understand the real implications of this decision.

Hon. Josie Osborne: The content of legal opinions or whether they even exist is privileged information.

Claire Rattée: Thank you. Could the minister please explain how section 8 authorizes treatment when there isn’t any specific language in section 8 that references consent, refusal or capacity? Just, again, for my benefit so I can understand how a clinician is supposed to interpret that when there isn’t any specific language around it. Where are they looking to understand that this is the section now that authorizes them to provide that treatment?

[3:45 p.m.-3:50 p.m.]

Hon. Josie Osborne: Section 8, which has been in existence since 1964, when the act was first introduced and passed, provides the core of the act — I’m just going to read from the clause itself:

“A director must ensure (a) 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.”

If the member’s concern is that this bill would risk that treatment, if there’s a risk that treatment is no longer authorized, we do not believe that to be the case at all. We’re not touching section 8. As for the fine points of interpretation, those are matters that are discussed in the court, but I will add that no court has ever found that involuntary treatment in B.C. is, generally speaking, unauthorized.

Claire Rattée: I appreciate that response. I do think it helps to understand where the ministry’s thought processes are behind this.

My concern here — I think the minister has stated it a number of times already — is that there already exists a lot of confusion around involuntary treatment of psychiatric patients. This is something that already exists with clinicians, it’s something that clearly already exists within the court, and it exists in this room.

Part of what I’ve been trying to get at here is around the specificity of language and why there was not a decision made, when bringing forward this piece of legislation, to attempt to clear up a bit of that ambiguity and to make things clearer, moving forward, for clinicians and patients alike — and for the courts. A lot of my questions today do centre around that. I hope that the minister will understand why I’m asking them.

It’s simply because I understand that we’re looking at undertaking a mental health review, and maybe some of those things will be part of that. I just am struggling with the timeline here. My understanding is that this piece of legislation, with these amendments to the Mental Health Act, is being brought forward simply in relation to or in response to the current Charter challenge.

So my next question would be: what specific problem is the repeal of subsection 31(1) intended to actually address? Given that we do not yet have a ruling from this Charter challenge, I don’t understand why we’re moving forward with this and proceeding with this repeal before we’ve completed the Mental Health Act review.

The timeline, to me, is part of what I’m struggling with, because I feel like it’s premature. We don’t have a ruling yet. I think it’s pretty reasonable to assume that even once a ruling was brought forward, government would still have time to respond and make the amendments that are necessary to the Mental Health Act.

Am I correct in assuming that the only problem that the repeal of subsection 31(1) is intended to address is this Charter challenge? If that’s the case, again, why didn’t we wait and do it as part of the Mental Health Act review, knowing that we still have time to be able to prepare for that?

Hon. Josie Osborne: I think this question is very similar to questions already asked and answered. I will say, one more time, that we cannot predict the outcome of the court case and whether a suspension would be granted and that it is the prudent and responsible thing to act now with these narrow amendments, focused just on the liability of health care workers and the provision of treatment for patients who are involuntarily detained under the Mental Health Act.

Claire Rattée: Getting to the crux of the timeline concern here, again, I think it’s reasonable to assume that maybe there’s something that I’m missing here, given that this is not a new Charter challenge. This has been going on for a very long time. The timing is what I’m struggling with. This is a piece of legislation that’s being brought forward very late in the session, with very little notice and, it feels like, very little preparation.

[3:55 p.m.]

You know, we’ve canvassed already a lack of consultation on this. I understand what the minister is saying: that it wasn’t necessary here. My interpretation is different, but it’s not up to me. What I’m failing to understand is: is there something new that came forward last week or the week prior in this Charter challenge and that has precipitated the decision to move forward with this?

I understand what the minister is saying, that it wasn’t necessary here. My interpretation is different, but it’s not up to me.

What I’m failing to understand is: is there something new that came forward last week or the week prior in this Charter challenge that has precipitated the decision to move forward with this?

I understand wanting to be prudent, but I also am struggling to understand why, then, this wasn’t already on the table at the beginning of the session, why this isn’t something that we even could’ve looked at back in the spring session. The timing is just something that I’m struggling to understand as far as why this is being brought forward now.

I guess the simple way to put it is: is there something that the public doesn’t know about this Charter challenge right now that is making this suddenly necessary?

Hon. Josie Osborne: With respect, this is a subject that we did canvass last week, so asked and answered.

Claire Rattée: I would ask if the minister considers this repeal a temporary measure or a permanent policy shift.

Hon. Josie Osborne: These are permanent changes until changed by a future Legislative Assembly.

Claire Rattée: Could the minister please confirm for the record after section 31(1) is repealed whether a capable involuntary patient can refuse treatment and block it?

Hon. Josie Osborne: I think the simplest way to answer this is that this bill does not change the consent regime in the act.

Claire Rattée: I would ask why the government chose not to amend section 8 to clarify treatment authority when removing section 31.

I understand this is similar to questions that have been asked before, but I think specifically on this clause, I would like to better understand why the determination was made to add clause 1 and to remove 31(1), but not to touch section 8 at all.

Again, getting to the crux of providing clarity for clinicians, for patients, so on and so forth, why was the decision made to not go back into section 8 and look if there was anything that we could possibly do there to provide further clarity?

Hon. Josie Osborne: Again, we have canvassed this. Section 8 contains the authority for involuntary treatment. These amendments make explicit and implicit liability waiver.

Claire Rattée: I understand that we’ve discussed the practical mechanism for providing treatment to an involuntary patient who refuses. I’m wondering if we can talk about the legal mechanism now.

After repeal, what would the legal mechanism for providing treatment to an involuntary patient who refuses look like?

Hon. Josie Osborne: The legal mechanism remains unchanged.

[4:00 p.m.]

Claire Rattée: Why was a psychiatric-specific definition of “capacity” not included in this bill? Again, just looking to clear up ambiguity. Were there any conversations about the potential of trying to put something like that into this legislation so that it’s clearer what those definitions are?

Hon. Josie Osborne: Again, this is outside of the scope of these amendments. These amendments are focused on the liability shield for health care workers.

of trying to put something like that into this legislation so that it’s clearer what those definitions are.

Hon. Josie Osborne: Again, this is outside of the scope of these amendments. These amendments are focused on the liability shield for health care workers.

Claire Rattée: I’m curious if the minister could please answer how many additional capacity assessments will now be required. I understand that the response has been given that this doesn’t practically change anything, but I do think that the lack of consultation with clinicians opens up a bit of a loophole where we could potentially end up in a position where it is now going to be more difficult to make determinations. So I’m curious if any thought has been given to the potential reality that we may be looking at new capacity assessments.

Hon. Josie Osborne: This is outside the scope of the amendments again. These are about the liability for those health care workers delivering care assessments, etc.

Claire Rattée: With the repeal of deemed consent, does treatment now require substitute decision-maker consent for incapable patients? Does that affect that at all?

Hon. Josie Osborne: No. Again, the consent regime remains the same.

Claire Rattée: Does the minister acknowledge that repeal may create situations where a person is detained but cannot be treated?

Hon. Josie Osborne: Again, the consent regime remains unchanged.

Jeremy Valeriote: I’ll start off with an easy one. I’m not sure who determines the titles of each of these sections. I’ll note section 31 is amended but the title reads: “Deemed Consent to Treatment and Request for a Second Opinion.” So will the legislation change remove the “deemed consent to treatment” portion of that title for section 31?

Hon. Josie Osborne: Yes, the section title does change and becomes: “Request for a Second Opinion.”

Jeremy Valeriote: Did the government consult with Dr. Daniel Vigo in drafting these amendments, please?

Hon. Josie Osborne: Asked and answered.

Jeremy Valeriote: Seven months ago, the chief scientific officer issued guidance for health care workers on the use of the Mental Health Act for involuntary treatment. In this guidance document, Dr. Vigo referenced section 31 of the Mental Health Act 22 times. He did not reference section 8 once in this guidance. He clearly stated that the authority and protection of providing involuntary treatment does not need legislative changes.

Can the minister explain the validity of the chief scientific officer’s guidance issued seven months ago and its reliance on section 31 given the decision to repeal section 31?

Hon. Josie Osborne: Asked and answered.

Jeremy Valeriote: Section 31 has been a keystone of Dr. Vigo’s guidance. Again, it was referenced 22 times in his 11-page guidance document from March 12. Section 8 wasn’t referenced once. Is the chief scientific officer aware that his guidance might have limited validity given these changes?

Hon. Josie Osborne: Asked and answered. He will update the document.

[4:05 p.m.]

Jeremy Valeriote: We recognize that additional guidance on the use of the Mental Health Act is still coming from Dr. Vigo. How will the removal of 31(1) impact the trajectory of the chief scientific officer’s work?

Hon. Josie Osborne: Outside the scope of these amendments.

Clause 2 approved.

We recognize that additional guidance on the use of the Mental Health Act is still coming from Dr. Vigo.

How will the removal of 31(1) impact the trajectory of the chief scientific officer’s work?

Hon. Josie Osborne: Outside the scope of these amendments.

Claire Rattée: Given the fact that…. I know we’ve canvassed the need to now update these guidance documents, and they’re substantial. There’s a lot of…. Almost every single document that the government or health authorities produce does reference section 31 as being the section that provides the authority to treat.

I am still, personally, at odds with the fact that that always seems to have been the interpretation, that that section is the section that provides the authority. And I understand that from a legal standpoint, it’s actually providing the liability protection, but the understanding is that that was the section that provided it.

So knowing that we’re going to have to go through this whole process now of updating all of these guidelines, and I would assume, of retraining staff, I’m wondering if the minister could please provide an estimate on costs associated with this and what the timeline is going to be like to actually see that change rolled out.

Hon. Josie Osborne: Notifying staff is certainly going to be required. Retraining staff is not going to be required. Changes to documents will be updated as quickly as possible, and the cost will be minimal.

Claire Rattée: I mean, I think “minimal” may be subjective, considering the fact that, like I said, there are a substantial number of documents. I’m assuming many of them are in print. Obviously, updating stuff digitally will be fairly simple to do.

I do have some concerns around the thought that staff wouldn’t have to be retrained because, again, all of the clinical guidance has said that section 31(1) is the section that provides that authority. I could imagine that if I was a clinician, I would have some concerns around these changes being made without any sort of ability to be able to speak to the ministry on that prior to the decision being made. We canvassed this already around the lack of consultation with those clinicians. So I would, personally, struggle a little bit to believe that it’s going to be a very minimal cost and that there wouldn’t be any retraining of staff that would be required.

But one thing I would ask is: how will the government protect clinicians from legal vulnerability during this transition? I do have some significant concerns that this could create a fair bit of uncertainty and legal vulnerability for them. So what is the government’s plan to be able to address that?

Hon. Josie Osborne: So with respect to the transition, in effect, it’s almost instant, and it is instant, upon royal assent. As the bill is currently drafted, the protection for health care workers, that liability waiver…. Provided that they are delivering care in good faith with reasonable care, that liability provision is explicitly stated in section 16.

There is no introduction of legal vulnerability. I would maintain that, in fact, this strengthens and makes more robust the protection that is there. That really is the heart of these amendments.

[4:10 p.m.]

Jeremy Valeriote: I’m going to briefly return to the chief scientific officer for a moment.

I understand the perspective that it’s out of scope, but the doctor has been referenced by the Minister of Health hundreds of times when questioned about the guidance, or I will say,

I’m going to briefly return to the chief scientific officer for a moment. I understand the perspective that it’s out of scope, but the doctor has been referenced by the government hundreds of times when questioned about the guidance, intent and consultation of these changes. It’s important to understand the implication of these proposed amendments when they appear to differ from the minister’s expert’s own research and guidance documents.

I will move on. For decades, this ministry has used section 31(1) as a deemed consent provision, not simply a liability shield. What will start to happen in units of practice if this change is made?

Hon. Josie Osborne: As answered previously, these amendments don’t impact clinical practice or the operation of the act.

Jeremy Valeriote: This act authorizes detaining people for an indefinite amount of time and confers an extraordinary amount of power for directors and health care workers to deliver treatment regardless of patient consent. Consent is deemed to be provided without a determination of capacity.

It seems like the chief scientific officer, medical professionals, the Premier and this ministry are uncertain where this enormous power to detain and treat derives from. Can the minister explain where the power comes from and how the scope of the power is determined?

Hon. Josie Osborne: Asked and answered.

Jeremy Valeriote: It has been articulated in mental health guidance in 2005 — referencing section 31 as deemed consent to provide psychiatric treatment to an involuntarily committed patient — and has been articulated in guidance as recently as seven months ago.

Why is the government arguing only now that the intent behind section 31(1) was just protection against liability for health care workers?

Hon. Josie Osborne: Asked and answered.

Jeremy Valeriote: Coming into this at this point, I’m trying to imagine why these supposed issues weren’t addressed any time in the past 45 years or even in the past decade while this court case has been underway. This government only just switched its court strategy a few months ago. It seems like the government is content knowing that there is no strategy and therefore is unaware of the potential impacts of such a change.

How is this government ensuring that involuntarily admitted patients have access to independent rights advisors amidst these changes?

Hon. Josie Osborne: That is outside the scope of these amendments.

Jeremy Valeriote: There are over 75 facilities where this act is applied. There are over 3,000 people in the province on extended leave. When the Lieutenant Governor nods her head, will the system be ready to adapt to these changes?

Hon. Josie Osborne: Yes. Again, this is the movement of an implicit liability shield from section 31(1) to an explicit, more robust waiver or shield, provided again that that treatment is provided in good faith and with reasonable care.

Jeremy Valeriote: We may disagree about the future of psychiatric health care in B.C., and we may have different ideas for the parameters of involuntary treatment, but we should return to process. Any changes to legislation so consequential should be done with a clear plan guided by the voices of experts, health care professionals and people with lived experience.

The Charter challenge is fundamentally about an act that needs better safeguards in place. This is to ensure people get treated who need it and that they are treated with dignity when they receive care. The mental health treatment regime in B.C. provides enormous power to health care workers to deliver professional services or care or treatment to involuntarily admitted patients.

[4:15 p.m.]

For decades, section 31(1) has been seen as the authority to provide treatment through deemed consent. Any changes to this regime must be done with a clear plan, and removing section 31(1) seems to be a very big change with limited understanding of the impacts, as no consultation with health care workers has taken place.

Through extensive debate on this bill, is the minister confident that these proposed changes won’t have unintended consequences on the mental health care system in B.C., particularly as it relates to the way clinicians provide treatment and

be a very big change with limited understanding of the impacts as no consultation with health care workers has taken place.

Through extensive debate on this bill, is the minister confident that these proposed changes won’t have unintended consequences on the mental health care system in B.C., particularly as it relates to the way clinicians provide treatment and relating to patient safety?

Hon. Josie Osborne: As canvassed previously, these amendments are focused on the protection of health care workers and a provision of a liability shield when delivering health care in good faith and with reasonable care. Nothing about the operation of the act, the delivery, the clinical practices that take place under the act are changing.

If or when the court requires changes, I concur with the member that that would need to be done with the utmost care, the engagement, the thoughtfulness that British Columbians would expect of us in an act as important and sensitive as this one.

Jeremy Valeriote: I appreciate the reply that many things won’t change, including clinical practices. My concern is the sowing of confusion.

My question for the minister is: does the uncertainty that may be inherent, whether it’s perceived or real uncertainty, perception of uncertainty…? Is it possible that it causes treatment decision paralysis, as no professional wants to make a decision on patient safety, on patient treatment?

Hon. Josie Osborne: Again, this is about making that protection an explicit statement in section 16 of the act, should these amendments pass. This is about providing assurance to health care workers who, under the authority of the director of a facility, are providing treatment in good faith and with reasonable care, are protected so they can continue to deliver the care to those individuals who have been assessed and it is deemed that involuntary treatment is required.

Claire Rattée: Has the ministry assessed the Charter risk that could be arising from this repeal?

Hon. Josie Osborne: We actually think that this provides clarity, that it adds clarity, not uncertainty.

Claire Rattée: Would the minister be willing to table that assessment that I’m assuming has been done on the potential Charter risk arising from this?

Hon. Josie Osborne: Again, I cannot answer this explicitly. Any legal opinion is privileged.

Claire Rattée: What is the government’s plan if section 8 is struck down next? Has there been thought given to the potential implications of moving forward on this, could potentially make it so that the Charter challenge now moves to section 8?

Has the government planned for that? Was there thought given to how to better protect that with the drafting of this legislation? Was that put into place? I would just like a clearer understanding of where the thought process is on how we’re going to approach that if that is the next reality that we’re facing.

[4:20 p.m.]

Hon. Josie Osborne: Technically, I think this is outside the amendments again. But we did canvass this last week, and I did answer this question.

Hon. Josie Osborne: Technically, I think, this is outside the amendments again. But we did canvass this last week, and I did answer this question.

The Chair: We’re on clause 2.

Recognizing the member for Skeena.

Claire Rattée: Thank you, Chair. Respectfully, I think that this is within the scope of what we’re discussing, simply because, again, it gets to the crux of the issue around timing. Knowing that we’re facing this Charter challenge right now, knowing that potentially this could be fairly well outside of our hands regardless in very short order, I think that it’s important to understand what could or could not have been done in the drafting of this legislation to try and prevent a potential decision that could mean that involuntary treatment was no longer considered constitutional.

I know that we canvassed this last week, and I know that I asked the minister about the use of the notwithstanding clause as it relates to this, but I would just like to better understand, before I feel comfortable voting on something as consequential as this, whether or not there was anything else that could have been done to ensure that we are protected, that involuntary treatment of psychiatric patients is going to be protected. I know that that is the intention.

So I would just like to better understand whether or not there was something more that we could have done, or if that avenue was at least explored, to ensure that we are protecting this from a Charter challenge as much as possible.

The Chair: Thank you, Member. I’ve sat and listened to a lot of the debate that’s gone back and forth. The minister has answered this question, and she has talked about the work that’s been done, so I’d ask that you go down a new line of questioning.

Claire Rattée: I do understand that I’ve, technically, asked this question already. I feel as though it hasn’t been answered. And again, the reason that I think it’s relevant is because before I’m comfortable voting on something personally, I need to understand how this impacts everything that actually happens in practice.

I understand that the minister has unequivocally stated that this doesn’t change anything about the way that an incapable involuntary patient is treated, that this is not going to change clinical practices in reality and that everything will remain the same. I would just like to ask again, after repeal of section 31(1), can a capable involuntary patient legally refuse treatment?

The Chair: The minister has answered that question as well, very clearly, especially with respect to providing legal opinion. Please go down another line of questioning. Thank you.

Claire Rattée: Respectfully, I don’t think I have received a response on this because I didn’t get a yes or no about whether or not a patient that is involuntarily detained but is considered capable can receive involuntary treatment under this act with the amendments. I still don’t have that clarity, and that’s why I would like that answered. Again, I think it’s relevant in the sense that before I can comfortably vote on something, I need to understand whether or not those people are also going to be included in what’s actually going to be able to be carried out.

The Chair: I certainly hear your concerns, Member, but having sat and watched the debate and listened to it, that is a question that’s been answered.

Now recognizing the member for Surrey-Cloverdale.

Elenore Sturko: You got it, Chair, and thank you to my colleagues for allowing me time to ask a question.

With the change where we’re repealing subsection (1) of section 31 and now installing this new wording, is there some policy or other educational materials that will go part and parcel with these changes so that any health care workers…?

I know when we were debating this on second reading that many of us had deep concerns that the power for us to give involuntary came from section 31 with the wording that was there with the consent, the deemed consent. Are there other materials that then subsequently will be accompanying these changes to make sure that health care providers understand that nothing is changing for them and that the power to give involuntary care is coming from section 8 of the Mental Health Act?

[4:25 p.m.]

Hon. Josie Osborne: Nice to see the member here. She wasn’t here when the question was asked previously by her colleague sitting to her right, so I will just shortly, in a short way, say yes, health authorities and their staff will be notified of these changes and what they mean.

Elenore Sturko: I do appreciate that you have had to repeat yourself and I

previously by her colleague sitting to her right, so I will just, in a short way, say yes, health authorities and their staff will be notified of these changes and what they mean.

Elenore Sturko: I do appreciate that you have had to repeat yourself. I do know that we’ve been canvassing this bill, but as my colleague has noted, these are changes we have a lot of people watching in British Columbia right now trying to find out what we’re doing, trying to find out what the consequences of the challenge in court will be on the Mental Health Act.

I’m happy to find out that yes, there will be other educational components to this, but in terms of an overall, I guess…. Can the minister speak a little bit on what types of overarching educational maybe programs and stuff going forward might be available so that even British Columbians themselves understand a little bit more about what involuntary care is?

Where I will, I guess, qualify this is that even in our second reading debate, which we’ve moved on from, but a lot of people don’t understand what the Mental Health Act even does. Oftentimes when we even talk about addiction, a lot of people immediately will see a lot of things coming into the media and a lot of social media talking about how people are against certain forms of treatment for addictions.

Right now in British Columbia, our primary way of treating people is under the Mental Health Act for mental illnesses. I know Dr. Vigo has himself talked, even…. He was at a conference we were at today, and he was talking about the ability to treat people with addictions under the Mental Health Act as well.

But in terms of these changes, is there anything beyond health care workers that will help British Columbians understand where we’re going, what these changes are meant to be so that we can actually bring the public along with us on this journey as these kinds of changes under the Mental Health Act get made?

Hon. Josie Osborne: I take the member’s point, and it’s not my intention to obfuscate, but in respect of the process that we have in committee stage that we are at on Bill 32 with these amendments, I would respectfully say that’s outside the scope of those amendments.

At the same time, I do want to acknowledge the concern that she expresses and generally agree that it is always important to bring British Columbians along in their understanding of what involuntary care is and, as importantly, what our system of mental health supports and voluntary care is in the province.

Claire Rattée: I have just a few more questions on this clause. My first one would be: when will the repeal come into force? I know that that is outlined in clause 3, but just for the record, when will this repeal come into force?

Hon. Josie Osborne: As currently drafted, upon royal assent.

Claire Rattée: Will treatment authorizations that were issued before this repeal remain valid?

Hon. Josie Osborne: Yes.

Claire Rattée: Does the minister anticipate all psychiatric patients, both in hospital and in community, to now need to undergo new capacity tests?

Hon. Josie Osborne: No.

Claire Rattée: I understand that we’ve canvassed whether or not clinicians and similar types of positions will need training moving forward. Again, I will just state for the record that I understand that the minister has stated that they will not need any new training, and I will state for the record that I have concerns around that.

I also would like to ask around police and paramedics, any kind of first responders, will there be any new training that is needed on the new legal framework again to avoid any situations in which we may have some hand-wringing going on and concerns around whether or not they still have the ability to treat?

[4:30 p.m.]

Hon. Josie Osborne: It’s important, as the member notes, that any health care provider, care provider providing treatment under the direction of the director of a mental health facility, again, in good faith and with reasonable care, understands what these changes are and

It’s important, as the member notes, that any health care provider, care provider providing treatment under the direction of the director of a mental health facility, again, in good faith and with reasonable care, understands what these changes are and what they mean. To that end, the communication that’s required to go out to all of those types of providers will be undertaken.

The member and I may just disagree on what is the difference between training and understanding or being notified and knowing. But I take the member’s point, and yeah, that’s very important, and it will happen.

Claire Rattée: Similar to my previous question, have we done any kind of an analysis on what the cost is going to look like for putting out these materials for — I guess it wouldn’t be considered retraining them — just notifying first responders, clinicians about the changes? Has there been any analysis undertaken about what those costs are going to look like?

The main reason that I’m asking this is because, again, we’ve gone over this before, but at this point in time, we don’t know what is going to happen with the Charter challenge. We don’t know what’s happening with the Mental Health Act review. So this could be considered, again, as I think it is by most of my colleagues on this side, that it is a bit premature for us to be moving forward with this.

I understand that the minister has stated that these costs are not substantial, but I would like to really understand what they are. We’re in a time of fiscal constraint right now in this province, so any actions that are being taken that are going to have a monetary implication that could be being taken prematurely….

If we’re going to, then, three months from now, six months from now, even a year from now have to reprint all of these materials, have to redistribute, I would like to understand what those costs actually look like before we move forward with something like this in case there is any potential that down the road we’re going to have to do it all over again. And I think the chance of that is quite likely.

Again, are we looking at $100? Are we looking at $100,000? I would like to have a bit of an understanding around what the actual cost implication is.

Hon. Josie Osborne: It would be impossible to provide a precise estimate of what the costs are, but I would note that updating materials digitally, of course, comes at the lowest cost. Printed copies of things do have a cost associated with them.

Government is continually in the process of ensuring that materials are updated — websites, printed materials, digital forms, items of that nature. So it is part of the normal course of business and important to do so that people understand what the changes are.

Claire Rattée: Given the fact that it was just in March of this year that this guidance for physicians on the use of the Mental Health Act when treating adults with substance use disorders was brought forward by the chief scientific advisor to the ministry, that’s fairly recent.

Again, I know we’ve talked about this a little bit, but I’m curious why…. At that point, my assumption has to be that the Ministry of Health did not foresee these changes being necessary, this upcoming. If they did, then why was a decision not made to advise Dr. Vigo on not referencing section 31(1) in this document before it was put out?

Hon. Josie Osborne: We canvassed the timeline of the development of this legislation last week.

Claire Rattée: I would like to move an amendment on clause 2:

“Clause 2, by deleting the text shown as struck out and adding the underlined text as shown, section 31 is amended (a) by repealing subsection (1), crossing out the word “and”; (b) in subsection (2), by striking out ‘a patient to whom subsection (1) applies’ and substituting ‘a patient who is detained in a designated facility under section 22, 28, 29, 30 or 42 or is released on leave or is transferred to an approved home under section 37 or 39’; and (c) by adding the following subsection (4): for certainty, nothing in this section limits the authority of a director under section 8 to authorize treatment without consent of a patient detained under this act where treatment is necessary to prevent serious deterioration or harm to the patient.”

The Chair: If you’d like to speak to the amendment, please go ahead.

Claire Rattée: In my opinion, this prevents a legal vacuum by confirming that section 8 does in fact include treatment authority for detained patients where necessary to prevent serious deterioration or harm.

[4:35 p.m.]

The minister has repeatedly claimed that section 8 is already the source of treatment authority, and if that is true, this amendment simply clarifies their own interpretation and stabilizes law. If it’s considered unnecessary, it is harmless, in my opinion, and there’s no reason to reject clarity on such an important topic. If it’s considered out of scope directly consequential to the repeal of section 31(1) clarifying the effect of the repeal within the same

If that is true, this amendment simply clarifies their own interpretation and stabilizes law. If it’s considered unnecessary, it is harmless, in my opinion, and there is no reason to reject clarity on such an important topic. If it’s considered out of scope, directly consequential to the repeal of section 31(1), clarifying the effect of the repeal within the same statutory scheme is important.

I think that we have…. I’ve spoken to this quite a bit already, but I do believe that clarity is more important than ever right now. Both the minister and myself agree that part of the reason that we find ourselves in this challenging mess right now is because there is not enough clarity around the Mental Health Act, around involuntary treatment of psychiatric patients, and it has created quite a few problems for clinicians, for patients and for the government.

That is the whole reason that we’re facing this Charter challenge right now. It’s the whole reason that this two or three clause amendment to the Mental Health Act has taken a significant amount of time, because there are really serious potential implications here if we don’t get this right.

I think that for the sake of clarity, for the sake of the clinicians that are going to have to now interpret these changes, this does provide that clarity that section 8 is the section that provides them the authority to be able to treat involuntarily.

And I think that if they had been consulted on this, I believe that most clinicians would agree that this kind of an amendment is welcome to make sure that they feel very confident that these liability protections will, in fact, protect them and that these amendments are welcome, because given what we’re facing with the Charter challenge, this will provide clarity for them.

So for those reasons, I would like to see this amendment move forward.

The Chair: Committee will take a brief five-minute recess and return at 4:41 p.m.

The committee recessed at 4:36 p.m.

The committee resumed at 4:43 p.m.

[George Anderson in the chair.]

The Chair: Good afternoon, Members. I call Committee of the Whole on Bill 32, Mental Health Amendment Act (No. 2), 2025 back to order. We’re on the amendment to clause 2, which has been deemed in order.

Minister, do you have any comments?

Hon. Josie Osborne: Again, I appreciate the intention of the member here, but similarly with several of the past amendments, it adds a redundancy that really is inconsistent with legislative drafting principles.

The Chair: Seeing no further questions, I’ll call the question.

Division has been called.

[4:45 p.m.-4:50 p.m.]

[Susie Chant in the chair.]

The Chair: Before putting the question, I remind all members that only the members of Section A or their duly appointed substitutes are authorized to vote.

The question is: shall the amendment to clause 2 moved by the member for Skeena pass?

[4:55 p.m.]

Amendment negatived on the following division: 3 — NUMBER, NAYS — 6. [See Votes and Proceedings.]

Claire Rattée: I understand what the minister had said previously about how the amendment that I put forward seemed like a redundancy. I do understand that there are basic principles that need to be adhered to when you’re drafting legislation, and I understand that redundancy can cause a problem.

But again, I would say that both the minister and I seem to be in agreement on the fact that there is a lack of clarity currently around these sections of the Mental Health Act and where the authority comes from to provide involuntary treatment to psychiatric patients.

I am wondering if the minister could advise me on whether or not, if I moved an amendment that was worded slightly differently, to remove some of the extra stuff about where it’s necessary to prevent serious deterioration or harm to the patient, and we kept it very simple — that nothing in this section limits the authority of a director under section 8 to authorize treatment for a patient detained under this act — if that would be something that the minister would entertain.

The reason is I think it’s much simpler and much clearer. Personally, I do not see any redundancy here, simply because I think that it clarifies for clinicians exactly where that authority comes from. Given the fact that this is the current piece of legislation in front of us, and this is what people are going to be paying attention to, clinicians included, I think that it would provide a greater level of certainty.

The Chair: Minister.

Hon. Josie Osborne: Welcome to the chair, Madam Chair.

Just before I provide an answer, I want to be clear that while I would share the assertion that there’s a lack of clarity around the liability shield, I would not share the assertion that there’s a lack of understanding or clarity about where the authority for involuntary comes from.

As we canvassed quite a bit last week, the way that section 8 and section 31(1) have come to work together in a scheme of involuntary care. Again, I want to assert that nothing in this bill defeats the Charter challenge that’s before the courts right now.

With respect to the questions, Member, around an amendment, it is not for me to…. It is her decision as to whether or not to bring an amendment forward, and I will, of course, listen to the case that she makes should she choose to do that.

Claire Rattée: I don’t have a ton of questions left, but I would like to just shift briefly here to the amendments that were made to the Mental Health Act in 2022 and how that interplays with what’s before us today.

My understanding is that many of those amendments are going to be coming into force very soon but haven’t yet. I’m wondering if there is anything that could potentially be in conflict between the two pieces of legislation, if there’s any bearing that either has on the other.

[5:00 p.m.]

Hon. Josie Osborne: Respectfully, this is out of scope of today’s proposed amendments.

Claire Rattée: The reason that I’m asking, just to provide context from why I think it is in scope, is that I’m curious if

that either has on the other.

Hon. Josie Osborne: Respectfully, this is out of scope of today’s proposed amendments.

Claire Rattée: The reason that I’m asking it, to just provide context on why I think it is in scope, is I’m curious if given the fact that some of those new pieces haven’t actually come into effect yet, was there thought given to how this may potentially impact those changes that are going to be forthcoming before drafting this legislation?

Hon. Josie Osborne: Again, these amendments are very specific to the liability waiver for the delivery of health care by professionals and health care workers, so the question is outside of the scope of that amendment.

Brennan Day: Respectfully, the 2022 amendments are taking effect on the third, which is a couple days from today. So I’m just wondering. They focused on rights and patient rights and involuntary care and what the duty of the province was to inform patients of what rights they had under the bill. The bill we’re talking about today is firming up liability for those people that are getting sectioned under the bill.

So I guess I’ll try and ask the question slightly differently. If the 2022 amendments that are coming into effect two days from now are aimed at safeguarding patient rights and autonomy, why wasn’t provider immunity addressed then, or is this to make up for that change?

Hon. Josie Osborne: The question around timeline of the bill has been asked and answered.

The Chair: I do encourage the members to move on to a different line of questioning at this time, please.

Claire Rattée: At this point, I would like to try and move another amendment, please, that has slightly different, slightly softer wording compared to the amendment that I brought forward previously, and again, for the exact same reasons that I had stated before.

I do think that there is a significant lack of clarity around where the authority is actually given within the act. I struggle with the idea that both sections have always worked in tandem to provide authority, and yet, section 8 isn’t referenced in any of the materials that have been put forward by the government, by the health authorities, by the chief scientific adviser.

So I apologize, I know that this probably feels very redundant, but I really would urge people to give thought to how important it may be in the long run to actually clarify this for clinicians, for patients and for the legal community about where this authority is actually coming from.

So I would like to move an amendment that section 31 is amended by repealing subsection (1)(b) in subsection (2) by striking out “a patient to whom subsection (1) applies” and substituting “a patient who is detained in a designated facility under section 22, 28, 29, 30 or 42 or is released on leave or is transferred to an approved home under section 37 or 39” and (c) by adding the following subsection (4): “For certainty, nothing in this section limits the authority of a director under section 8 to authorize treatment for a patient detained under this act.”

The Chair: This committee will go into recess very briefly while copies of the amendment are made for the members. I have 17:03. If I can see everybody back in their seats by 17:07, please.

The committee recessed at 5:04 p.m.

The committee resumed at 5:09 p.m.

[Susie Chant in the chair.]

The Chair: I call the committee back to order.

[5:10 p.m.]

We are in discussion around the amendment to clause 2 as moved by the member for Skeena.

Okay. On the amendment.

Do you wish to make any comments, Member?

On the amendment.

Claire Rattée: I think I’ve made most of the comments previously, because obviously, this is very similar to

to clause 2 as moved by the member for Skeena.

Okay. On the amendment, do you wish to make any comments, Member?

On the amendment.

Claire Rattée: I think I’ve made most of the comments previously, because obviously, this is very similar to the amendment I already moved. I would just, again, state for the record that the reason I’m bringing this forward is to try and clear up some of the ambiguity that I do believe exists around where treatment authority comes from. I would really like to provide clinicians with that certainty.

I do appreciate that the minister and the Chair have indulged me to try and go through this process again here. Really, quite simply, I still have significant concerns at this point that that authority piece is not clear.

Again, I understand that I’m not a doctor and that I wasn’t trained as a doctor, and so my interpretation of this act may be different from what a doctor’s is, but I would still say that I spent a significant amount of time researching and preparing for this and reading through the Mental Health Act, and my interpretation is still exceptionally unclear about where that authority is actually coming from, and I really want to try and avoid any possible negative, unintended consequences.

Again, I will state that I understand that that would not be the intended consequences from this ministry. I do have fears that it could potentially result in that, so that is why I’m hoping that this amendment will pass.

The Chair: This amendment has been found to be in order.

Hon. Josie Osborne: I want to spend a little bit more time on this and not just give the same answer that I’ve given for the previous amendments, although the answer is effectively the same.

First of all, I really want to thank the member for…. She has put a lot of time and effort and thought into this. What I am seeing is a consistent request to reduce the ambiguity or to feel more certain that the core scheme of involuntary care indeed does lie in section 8, and that by placing a reference to that in the act somewhere provides peace of mind.

It is a challenging situation to be in, I think, when reviewing legislation and making amendments, and I, of course, as minister, have the benefit of lots of different minds and legal advice, and that is not the same for all members of the House.

I would maintain again that the authority does exist in section 8 and that it does not need to be referred to, and that this amendment, if passed…. Actually, what remains in section 31, then, is the wording around second opinion. The additional section actually might be viewed as being incongruent with that, but it doesn’t take away from the intention, I think, of the member.

Again, from 1964 to 1981 in our province, we have had involuntary care that has operated with the authority coming from section 8. In 1981, as the result of a court case in the Supreme Court of Canada, an additional measure was taken to assure health care workers who provide treatment were protected from tort claims of assault and battery. Why they chose to do it in section 31 and not in section 16, I guess we may be left wondering for a while, but that is what they chose to do.

Over time, section 31(1) has come to be colloquially known as the deemed consent provision, and it has created confusion. It is the confusion that is the source of the amendments that I am proposing through this bill, in order to make that implicit liability shield that exists explicit. That is the sole purpose of these amendments.

Nothing about this bill defeats the charter challenge that is before the court. As we have canvassed previously, it is possible, although obviously the province is hopeful to win, but it is possible that involuntary care, the regime, could be struck down entirely, in which case, one of several things may happen.

What we are doing is mitigating the risk that a health care worker feels a chill effect or is uncertain about care that they would provide because that implicit liability provision could be struck as part of the involuntary care regime, the Charter challenge. We don’t want that to happen.

So again, coming back to this amendment, we believe that the authority exists, that it exists in section 8, that it is not necessary to explicitly reference it in a way that is redundant and is inconsistent with legislative drafting principles.

[5:15 p.m.]

I understand that’s also a frustrating answer to hear. Like the member, I am not a lawyer either, so I also proceed on the best advice for me as well. Understanding that the finer interpretations of the way legislation is drafted has been the substance of court cases since Canada became a country and we debated

I am not a lawyer either, so I proceed on the best advice for me as well. Understanding that the finer interpretations of the way legislation is drafted has been the substance of court cases since Canada became a country and we debated and created legislation, it’s a responsibility that every member in this House takes really seriously.

Again, I appreciate the member’s intention, but I will not be supporting the amendment.

The Chair: Members, seeing no further discussion, there is an amendment to clause 2. Shall the amendment pass?

Amendment negatived.

The Chair: Division has been called.

[5:20 p.m.]

[5:25 p.m.]

The Chair: So the committee…. We’ve got everybody here. Is it all right with everybody if we waive?

Leave granted.

The Chair: Thank you very much. We will waive the remainder of the time.

we’ve got everybody here. Is it all right with everybody if we waive?

Leave granted.

The Chair: Thank you very much. We will waive the remainder of the time.

The question is the amendment to clause 2 moved by the member for Skeena.

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

The Chair: Okay, I’m just going to give the room a moment to reset, please.

Clause 2 approved.

Claire Rattée: I have a couple of amendments that I would like to move that are between clauses 2 and 3.

I will start with the first one here. It would be for a new clause 2.2: “By adding the underlined text as shown, 2.2, the following section is added: ‘Guidelines,’ 31.2. The minister must publish guidelines in respect of the process for obtaining consent, assessing incapacity and authorizing treatment of a patient detained under this act on a publicly accessible website maintained by or on behalf of the minister.”

The Chair: You can speak to it now if you’d like.

Claire Rattée: I believe that this is about the safe implementation portion of this. We’ve canvassed this at great length. I think that it’s irresponsible to repeal deemed consent without telling clinicians how to lawfully proceed the next day. I understand that the minister disagrees with my characterization of this, but I do believe that it’s important. Again, I think that this is a step that clinicians would likely welcome.

This amendment does not prescribe the content of the policy. It simply prevents an abrupt legal vacuum. I think that if the minister’s feeling is that there will be guidelines anyway, if that’s the case, then there should be no objection to committing to statute, especially on an issue that is this serious.

A number of the amendments that I have proposed and a number of amendments that I will propose are along the same vein of trying to make sure that we have legal clarity for clinicians and for patients alike. I think that part of the problem that we’re facing right now is a lack of clarity around how these determinations are made.

I hope that the minister would be in favour of this amendment.

The Chair: Okay, we will take a short recess of four minutes, which, again, gives us to 1732 on my watch.

The committee recessed at 5:29 p.m.

The committee resumed at 5:33 p.m.

[Susie Chant in the chair.]

The Chair: Okay, I call the committee back to order. This amendment has been carefully reviewed and appears to be outside of the scope of this particular Mental Health Amendment Act, Bill 32. So it’s outside of the scope.

Amendment ruled out of order.

Claire Rattée: I have another amendment. I’m worried that maybe the same thing will happen then, but I will try anyways.

This would be, again, an amendment that would be moved between clauses 2 and 3. It would be a new clause adding a section 31.3(a): the minister must prepare a report describing the manner in which treatment decisions in respect of a detained patient must be carried out and (b) upon completion of a report referred to under section (a) the minister must, as soon as practicable, table the report in the Legislative Assembly if then sitting or deposit the report with the Clerk of the Legislative Assembly if the Legislative Assembly is not then sitting.

The reason that I’m bringing this forward is because this amendment introduces basic transparency and oversight without interfering in individual clinical decisions. It allows the Legislature, patients and the public to see how often this immunity is used and whether there are recurrent concerns.

[5:35 p.m.]

It provides a coherent and public explanation of what replaces deemed consent rather than leaving that buried in internal memos or verbal statements. And it supports the clinicians and the families who need clarity. I think that at this point, government can’t credibly argue against such minimal transparency where fundamental rights

recurrent concerns.

It provides a coherent and public explanation of what replaces “deemed consent” rather than leaving that buried in internal memos or verbal statements, and it supports the clinicians and the families who need clarity. I think that at this point, government can’t credibly argue against such minimal transparency where fundamental rights and involuntary treatment are involved.

The Chair: Minister, would you like to speak to the amendment?

Committee is in recess for…. I’ll give you five minutes this time.

The committee recessed from 5:35 p.m. to 5:39 p.m.

[Susie Chant in the chair.]

The Chair: I call the committee back to order.

In reviewing the amendment to the Mental Health Amendment Act, the amendment is found to be, again, out of scope beyond….

Oops. Where’d she go?

We will take a very brief recess while we find the member.

The committee recessed at 5:39 p.m.

The committee recessed from 5:39 p.m. to 5:42 p.m.

[Susie Chant in the chair.]

The Chair: I call the committee back to order. The amendment that was brought forward is found to be out of the scope of this bill.

Claire Rattée: Sorry, I have another amendment.

I’m feeling this one will also be out of order, then. I would move that the following section is added:

Designation of substitute decision-maker

31.4(1) A patient who, during or following treatment under this act, regains decision-making capacity in respect of consent to treatment, may, while capable, designate a substitute decision-maker in the event of the patient’s incapacity in the future.

(2) Within one year of the coming into force of this section, the minister must establish processes respecting making a designation under subsection 1, including but not limited to processes to (a) ensure voluntariness of a patient, (b) permit revocation by a patient, (c) document a designation, and (d) communicate a designation to a director or prescribed facility. (3) The minister must, as soon as practicable, publish the processes established under subsection (2) on a publicly accessible website maintained by or on behalf of the minister.

Claire Rattée: The reason that I am bringing this one forward is actually because it’s based on legislation that has worked well in Alberta.

It’s specifically…. I know I’ve made a number of references to the issues around — I hope I pronounce it properly; I’m still not confident that I am, but Google says I am — anosognosia, wherein a patient that has psychiatric illnesses will convince themselves that they are okay, they don’t need treatment anymore. Specifically, and particularly when they are undergoing treatment that has alleviated their symptoms, they’ll convince themselves that they do not any longer need to proceed with treatment.

I’m hoping that we can bring something in that would try to alleviate those issues and concerns in that they would be able to designate somebody as a substitute decision-maker on their behalf in the event that that might happen. They would be able to ensure at that point that we don’t end up in a situation where people that need treatment aren’t able to access it because of their disabilities.

The Chair: We will take a brief recess. Four minutes.

The committee recessed at 5:44 p.m.

The committee resumed at 5:46 p.m.

[Susie Chant in the chair.]

The Chair: I call the committee back to order.

This amendment is found to be out of order as it is beyond the scope of this bill as was agreed to at the second reading.

Amendment ruled out of order.

The Chair: Member for Skeena on clause 3.

Claire Rattée: Thank you, Chair, and thank you for indulging me. I have another amendment.

This amendment would add a section 3.01.

The Chair: Let me clarify. Is this on clause 3?

Claire Rattée: This is between 2 and 3. I’m almost done with those, I promise.

(1) Within 12 months after the date section 1 of this act comes into force, the minister must establish guidelines respecting the assessment of capacity for treatment under the Mental Health Act, including guidance on (a) fluctuating or episodic capacity, (b) impaired insight, including anosognosia, (c) capacity considerations respecting substance-related or hypoxic brain injury, and (2) The minister must make the guidelines made under subsection 1 available on a publicly accessible website maintained by or on behalf of the minister and provide the guidelines to all designated facilities and directors.

The reason for this is that it’s about modernizing capacity assessment in light of severe mental illness, anosognosia and toxic drug–related brain injury. It does not expand involuntary powers. It simply requires the minister to give clinicians clear, up-to-date guidance on how to assess capacity in psychiatric cases, which is currently a glaring gap, in my opinion.

It directly supports both patient rights and safe, timely treatment by ensuring that capacity decisions are consistent and evidence-based.

The Chair: If I may clarify with the member, it looks like this is 3.01. Are you adding that to clause 3?

Claire Rattée: I apologize. I was also a bit confused. This is advice I was given by the Law Clerk, that those would be between 2 and 3. I also read it as it should be on 3, so I would defer to your judgment on that, because this is new to me. But I also was a little bit confused about that.

The Chair: At this time, we will take a brief recess of four minutes.

The committee recessed at 5:49 p.m.

The committee resumed at 5:52 p.m.

[Susie Chant in the chair.]

The Chair: I call this committee back to order. My apologies for interfering with conversation.

Having reviewed the amendment to Bill 32, it is deemed to be out of order as it is beyond the scope of the bill as agreed to at second reading.

Claire Rattée: I apologize. I’m almost done with these, I promise. Maybe this one will be considered in order.

So I would like to move a new clause around the timeline for review of the act, and it’ll be: “Within six months after the coming into force of this act, the minister must publish on a publicly accessible website, maintained by or on behalf of the minister, a timeline for completing a review of the Mental Health Act.”

I think that it’s pretty clear why I’m looking to include this within this piece of legislation, and that is because I do have significant concerns that the review of the Mental Health Act, in my opinion, should have been undertaken prior to bringing this legislation forward. So I would appreciate clarity around a timeline on the review of that act, because it does directly relate to this piece of legislation.

We canvassed this previously. But the potential implications of going through that review and how that interplays with what’s been proposed here, what was proposed in 2022, the timelines on how long it took even with those amendments from 2022 to actually come into effect—I think that this is all interrelated.

And I think that the public would appreciate having the ability to understand when that review will be taking place and what the timeline is going to look like and what the parameters are around it, given the fact that beyond the original announcement of that review, we haven’t really seen anything else further.

So I hope that this one will be in order.

The Chair: Very good. This committee will take a five-minute recess while the amendment is being reviewed.

The committee recessed at 5:54 p.m.

The committee resumed at 5:59 p.m.

[Susie Chant in the chair.]

The Chair: Okay. Calling this committee back to order.

I have found the amendment to be out of order — again, beyond the scope of Bill 32 as agreed to in the second reading.

[6:00 p.m.]

Jeremy Valeriote: I’d like to table an amendment, please. Can I find out if it’s in order first and then speak to it?

The Chair: Let’s get you to speak to it while

Jeremy Valeriote: I’d like to table an amendment, please.

Can I find out if it’s in order first and then speak to it?

The Chair: Let’s get you to speak to it while we’re doing the initial assessment.

On the amendment.

Jeremy Valeriote: So since its inception, section 31 has been the operative section that enables the director to direct treatment with deemed consent of the patient. This was also this government’s understanding, along with the chief scientific officer’s understanding, of the intent and application of section 31(1). Directives issued by and for this government over the past 20 years have detailed as much.

This government only changed this narrative in the last few months of an ongoing Charter challenge. Apparently, the only intent and application of section 31(1) is protection of liability for health care workers engaging in the involuntary treatment of patients held under the Mental Health Act. But this has not been the case through government directives.

There are over 75 facilities in B.C. that operate under the Mental Health Act. The health system is unprepared to adapt to these amendments. Through the many hours of debates, we have failed to gain clarity on the question: why the rush? We fail to understand who was consulted and how these changes will be rolled out.

As the health system and the front-line workers that are responsible for the operation of this act are unprepared to deal with these changes, we believe it is wise for this government to delay commencement. So the amendment calls for delay of 12 months ahead of commencement of this act.

The Chair: Thank you very much. We will take a four-minute recess while this amendment is considered.

The committee recessed from 6:01 p.m. to 6:04 p.m.

The Chair: I call the committee back to order.

This amendment is found to be in order.

Would the minister care to speak on it?

Hon. Josie Osborne: Yeah. Thank you to the member for putting forth the amendment. I think this gives me the opportunity to bring together a number of things that have been said over the past several hours and days of debate about this bill.

Again, I do want to return first and foremost to the purpose of the amendments. They are around protecting health care workers with certainty and to provide reassurance to patients and families who require care and treatment under the act that they are getting the care that they need.

[6:05 p.m.]

As we’ve canvassed several times, these are amendments that will clarify and strengthen the provisions and protections under the act for those front-line workers. We have talked quite a bit throughout the course of this debate around the Charter challenge that is currently before the

As we’ve canvassed several times, these are amendments that will clarify and strengthen the provisions and protections under the act for those front-line workers.

And we have talked quite a bit throughout the course of this debate around the Charter challenge that is currently before the courts. Again, I want to be very clear that this bill does not negate the arguments in the case.

Section 31(1) remains in the act…. Let me put it this way. Should Bill 32 fail and section 31(1) remains in the act until the court rules — it will remain until the court rules — and if the court strikes down section 31(1), health care workers may be exposed to civil liability for claims when they are providing involuntary care.

The government would then rely on seeking a suspension of the court’s decision to allow the time to amend the act, but there’s no guarantee that the court will provide a suspension. There’s also no guarantee or certainty as to exactly when a court decision will be rendered.

Involuntary treatment, the authority remains under section 8, as it has since 1964, but the legal uncertainty in terms of liability could cause operational hesitation amongst the clinicians, amongst the people that provide this care. This is the risk that we want to mitigate through these amendments. Without that explicit liability protection, we would not want to see clinicians delaying or avoiding treatment for involuntary patients. This could create serious risks of deterioration or harm to people.

While I appreciate the argument that the member has put forward in support of the amendment, I cannot support it because it is imperative that it come into force upon royal assent so that when the court case is decided, regardless of the outcome, we can provide that assurance to health care providers that they can continue that continuity of care for people who are involuntarily detained under the act and — provided, again, of course, that they provide this care in good faith and with reasonable care — that they are protected explicitly from tort claims of assault and battery.

We feel this is the prudent and responsible thing to do. This is why we have brought the amendments forward at this time. I’ll leave it at that.

The Chair: Members, we have an amendment to clause 3. The question is, with the amendment to clause 3, shall the amendment pass?

Division has been called.

[6:10 p.m.]

The Chair: Okay. We have 56 seconds left. If the committee is in agreement, we will waive the remaining time.

Leave granted.

The Chair: We have in front of us…. Before putting the question, I remind all members that only the members of Section A or their duly appointed substitutes are authorized to vote. The question is: shall the amendment as proposed to clause 3 pass?

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

Hon. Josie Osborne: Noting the hour, I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The Chair: This committee stands adjourned.

The committee rose at 6:19 p.m.