Conflicting purposes: Guardianship law, mental health law and involuntary detentions

Abstract

Part 3 of British Columbia's Adult Guardianship Act provides a statutory framework for protecting adults who are abused or neglected and unable to seek support and assistance on their own. The legislation aligns with modern approaches to guardianship with its focus on providing support to vulnerable adults. This statute's philosophy is captured in guiding principles, which affirm the presumption of capability and stipulate that support and assistance must be provided in a minimally intrusive manner. However, there is a gap between the statute's guiding principles and the legislation's application in practice. This is exemplified by using involuntary detentions as a mechanism to protect vulnerable adults from harm. Currently, British Columbia's health authorities rely on sections 22 of the Mental Health Act and 59 of the Adult Guardianship Act for authority to involuntarily detain older adults with dementia without their consent. This article argues that this practice raises serious rights concerns and that the resulting gap between the statute's philosophy and its implementation is due to inadequate procedural protections and overlap between the Adult Guardianship Act and the Mental Health Act. The article examines these issues through an analysis of the legislation, a discussion of relevant literature and judicial consideration of the issues, and identification of relevant rights concerns. Recommendations are made about how to address the gap between the intended purpose of the legislation and current practice.