Mental Health Law Reform for a New Government in New Brunswick

By Culbert, Timothy T. | University of New Brunswick Law Journal, Annual 2011 | Go to article overview

Mental Health Law Reform for a New Government in New Brunswick


Culbert, Timothy T., University of New Brunswick Law Journal


1. Introduction

In February 2009, after almost a year of consultations with experts on mental health care, service providers, and people suffering from a range of mental illnesses, Judge Michael McKee released his report entitled Together into the Future: A Transformed Mental Health System for New Brunswick. This report contained over 80 recommendations to the provincial government for reforming the mental health care system including: strengthening community networks, reducing the stigma associated with mental illness and investing in early intervention through the education system) This follows a trend in Canadian provinces of reforming mental health policies. (2) While this report was a positive step for the reform of New Brunswick's mental health care system, it was never acted upon. (3)

The then-Minister of Health for New Brunswick, Mary Schryer, did respond to the report in writing in September 2009, but expert reactions to this response were mostly critical. (4) Following Schryer's response, the provincial government left the McKee Report on the shelf. In October 2010, a new government was elected in New Brunswick under the Progressive Conservative leadership of Premier David Alward. The Minister of Justice for this new government, Marie-Claude Blais, stated that she intends to review the McKee Report and move forward with some of its recommendations. (5)

Why is the reform of mental health laws in New Brunswick so important? One only needs to mention the name "Ashley Smith" and the answer to this question comes into sharp focus. Our mental health laws have let us down: they stigmatize the mentally ill, they criminalize the mentally ill, and they tend to paint all people suffering from mental illness with the same brush. While it is beyond the scope of this paper to delve further into Ashley Smith's story, one cannot properly analyze mental health laws in New Brunswick without mentioning this terrible tragedy. (6)

The purpose of this paper is to analyze the current status of New Brunswick's mental health care system against this backdrop and to provide ideas for reform. These suggestions for reform focus primarily on mental health legislation. They underscore the fact that legislation plays a key role in mental health care. This point has been forgotten in the various government reports to date. Thus, in this paper I argue that the fact that the new Minister of Justice (as opposed to the new Minister of Health) is considering this report is significant. This paper uses the theory of therapeutic jurisprudence as a lens through which to analyze the current status of mental health laws in New Brunswick.

Section II defines the concepts of "mental health law" and "therapeutic jurisprudence" and then briefly describes some of the key issues discussed by mental health law academics. Because mental health law is a vast domain, many topics such as criminal responsibility, discrimination in the workplace, and adult guardianship legislation, for example, will remain untouched.

Section III provides a cursory overview of mental health legislation in Canada. It emphasizes the coercive nature of mental health laws in Canada. The New Brunswick Mental Health Act is used as an example in this section, even though I recognize there are differences among provincial mental health laws. While my understanding of Canadian mental health laws aligns somewhat with Kaiser, I have significant criticisms of his approach to mental health law reform. Indeed, Kaiser's dislike of the "medical model" is overstated. Therefore, while his research and analysis of Canadian mental health laws is exceptional, I argue that there are times when the medical treatment of people with mental illness is the only alternative. Thus, I am more aptly a proponent of Gray et al.'s "human needs perspective." (7)

Section IV evaluates the McKee Report and submits that one of the key shortcomings of this report is its failure to include legislative reform within its list of recommendations. …

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