By Austin Lam
On July 28, 2026, Justice Lauren Blake of the British Columbia (BC) Supreme Court ruled, in Council of Canadians with Disabilities v. British Columbia, that BC’s scheme for forcing psychiatric treatment on involuntary patients regardless of their capacity to consent breaches the Charter’s equality guarantee and its protection of life, liberty, and security of the person. The scheme perpetuates a stereotype, the Court found, that people with mental disorders lack capacity, and leaves BC an outlier: consent laws elsewhere in Canada are significantly less drastic. The ruling struck related provisions of the Mental Health Act (MHA), the Health Care (Consent) and Care Facility (Admission) Act (HCCCFAA), and the Representation Agreement Act, suspended six months for the legislature to respond.
Government already tried once to head this off, repealing the Mental Health Act’s “deemed consent” wording last December, signalled on the final day of closing submissions. That removed a phrase, not the underlying authority to treat without consent, and the Court confirmed it never answered the question. BC has six months to write a real answer, and risks treating that as a fresh drafting exercise rather than an inheritance carried forward mindfully.
Carrying history, not just having it
Heidegger’s Being and Time distinguishes merely having a past from historicity: the way we are our past, carry it forward as live possibility, and become ourselves only by actively owning that inheritance rather than repeating it unthinkingly or discarding it. Authentic “repetition” is a mindful, resolute retrieval of possibilities a tradition handed down but never finished deciding. Applied to law reform: BC needn’t freeze on its past, but cannot build forward without first knowing what that past contains.
This carries normative, not merely descriptive, weight. A statute drafted without reckoning with why its predecessor failed risks reproducing that failure in new language, as BC’s December amendment illustrates: it repealed “deemed consent” wording while the underlying authority to treat without consent survived intact. A past not actively taken up does not disappear; it keeps operating as an unexamined default. Retrieval is a condition of reflective legislative agency: choosing freely means owning what was tried, abandoned, or left unfinished, not inheriting the next iteration of an old pattern.
That is not just a figure of speech. Heidegger’s own account of tradition is that, left unexamined, it makes what it hands down so self-evident that it conceals its own origin, so that going back to it seems unnecessary. Applied to law reform, that names a specific risk: a scheme’s underlying authority can survive an amendment untouched not because anyone defended it, but because it was never brought back into view to be defended or rejected. Retrieval is the alternative: a deliberate recovery of the possibilities a tradition once carried, not veneration of the past, so the choice can be made knowingly rather than inherited by default.
Three Acts, one unfinished history
Justice Blake’s own reasons already model this: a full section traces the MHA back to 1964 before reaching any constitutional conclusion. BC’s capacity law is not one clean lineage; it is several, tangled together. The HCCCFAA, passed in 1993, once had a real review board, a fast, three-member tribunal for incapability findings. Activated only in 2000, it was abolished within three years as part of a wider purge of quasi-judicial tribunals, never fully implemented, per the BC Law Institute, before reliable conclusions could be drawn about its merits. Review reverted to the courts, so inaccessible a 2021 BCLI study called it unavailable to those who need it.
The MHA carried a different history. Its “deemed consent” provision, in use since at least 1981, let a director treat a detained patient as consenting regardless of capacity, a rule BC kept for decades after most provinces moved on. The present Mental Health Review Board was established in 2005, succeeding an earlier review-panel system, but its mandate centred on detention criteria, not capacity to decide on treatment, since deemed consent foreclosed it. Only under pressure of this litigation did the legislature remove the wording last December; the ruling confirms removal was never an answer.
The Adult Guardianship Act (AGA) supplies a third piece: not one of the statutes struck down, but a related regime showing the same pattern. Since 2000 it has opened with a presumption of capacity, every adult presumed capable “until the contrary is demonstrated,” and has never had a review board of its own; its emergency powers, for short-term abuse and neglect, have no built-in review at all. In A.H. v. Fraser Health Authority (2019), those powers detained a vulnerable woman for nearly a year with no independent review, breaching her Charter rights against arbitrary detention. No tribunal caught it, only a lawsuit.
None of this is dead history: three statutes, three answers to one question, developed across four decades with little cross-reference, illustrating the reckoning required, not its complete inventory. The common law of capacity and consent, and the Charter analysis Justice Blake herself conducted to strike the scheme down, carry their own unfinished histories a full retrieval would equally have to take up. It is closer to what Heidegger called a shared fate still asking to be decided than a museum exhibit.
BC doesn’t need a royal commission before the clock runs out. It needs the redraft to be a genuine retrieval, not another amendment under deadline pressure: why did BC’s one consent review board get three years rather than a fair trial? Why did deemed consent survive decades after other provinces dropped it? Why did A.H.’s year of unreviewed detention take a lawsuit, not a tribunal, to end? Answering those, and their counterparts across BC’s capacity law, is what carrying history mindfully means: a legislature that can say why it keeps or discards each arrangement has a more defensible policy than one that cannot. We don’t choose what BC’s capacity law has been. In six months, we will find out whether the province has chosen to encounter its history.
Author: Austin Lam
Affiliation: Psychiatry Resident Physician, Research Track, University of British Columbia
Competing Interests: None.
Social media account: @austinaldenlam