B.C. Human Rights Commissioner Kasari Govender, in Vancouver, on March 7, 2023. Ms. Govender led an inquiry into detentions under the Adult Guardianship Act and found that these practices have had a disproportionate impact on seniors, homeless people and people living with disabilities.DARRYL DYCK/The Canadian Press
B.C. legislation intended to protect vulnerable adults from abuse and neglect lacks transparency, oversight and adequate safeguards, allowing some health agencies to detain people without legal authority to do so or due regard to their procedural rights, according to a new report from the province’s Human Rights Commissioner.
Kasari Govender led an inquiry into detentions under the Adult Guardianship Act and found that these practices have had a disproportionate impact on seniors, homeless people and people living with disabilities, including those with mental-health and substance-use issues. Her findings were released Tuesday.
She said that while it is important to have laws to protect vulnerable individuals in situations of abuse and neglect, the inquiry revealed “significant” human-rights concerns with how the legislation is being used.
“We heard about people, largely from their family members, but also from the data, showing people are being detained, are desperate to get out and don’t have a legal mechanism to review whether they should be detained or not,” Ms. Govender said in an interview.
“The fact that the state has those powers, which is really unique, has been disturbing from a human-rights perspective.”
The Adult Guardianship Act is part of a suite of laws intended to address reports of abuse, neglect and self-neglect of vulnerable or incapable adults.
Under this framework, designated agencies – B.C.’s regional health authorities and Community Living BC, a Crown corporation that provides support and services to adults living with developmental disabilities – are required to investigate reports of abuse and take steps to protect the individuals.
In emergency situations, the agencies have significant powers that can include entering any premises without a court order or warrant, relocating the person to a safe place and providing that person with emergency health care.
Between 2018 and 2023, designated agencies detained 300 people a total of 340 times, the inquiry found. The median length of detention was six days, while the maximum was 212 days.
The inquiry found that no other statute in Canada authorizes a detention “without using language like detain, detention or involuntary admission, without specifying a detention period/length, and without providing for some review process or judicial oversight.”
By way of comparison, B.C.’s Mental Health Act, which governs voluntary and involuntary treatment of people with mental illnesses, while imperfect, contains more procedural safeguards against arbitrary detention, such as access to legal advice and the right to reassessment.
The inquiry also noted that while it’s unclear if the Adult Guardianship Act gives designated agencies legal authority to briefly detain an individual in emergency situations, it does not authorize them to detain them indefinitely or long-term.
The commissioner also learned during the inquiry that some vulnerable individuals were detained pursuant to “doctor’s orders” rather than under the act, which means the doctors would have done so “without any specific statutory authority and in violation of human rights standards.”
The report highlighted the case of A.H., a 39-year-old Indigenous woman with fetal alcohol spectrum disorder, cognitive impairments and mental-health issues, whom the Fraser Health Authority removed from her mother’s home after learning she had been suffering abuse and neglect.
The health authority detained her for more than 11 months against her will to keep her safe. The Supreme Court of B.C. ruled in 2019 that the health authority had done so unlawfully, without promptly applying to the court for a support and assistance order, without providing A.H. with clear and written reasons, without offering her the opportunity to obtain legal advice and under conditions that violated her Charter rights.
Ms. Govender made 10 recommendations in her report, including that designated agencies immediately stop detaining people under the act for longer than necessary to address immediate risk of death or serious harm unless supported by a court order. As well, detained adults should promptly receive written reasons for their detainment.
Her other recommendations include that the Ministry of Attorney-General extend the independent rights advice service, which provides information to people involuntarily detained under the Mental Health Act, to those detained under the Adult Guardianship Act. The service should also provide legal advice and representation and be funded to do so, Ms. Govender said.
As well, the act should be amended to clarify if detentions are allowed in emergency situations and, if so, provide clear criteria on such situations.
The commissioner also recommended that the Ministry of Health, in collaboration with the designated agencies, review which upstream resources are needed to reduce detentions under the act, such as home support and residential care.
“The majority of people who are detained under these provisions are people who are being detained for self-neglect,” Ms Govender said. “So what we want to see is that people – particularly seniors and people with disabilities, whom this regime disproportionately impacts – are better supported in community.”