The Law Project

When a suicide or other serious physical harm occurs because of egregious mental-health system failure, there is little accountability, and unfortunately without meaningful accountability, necessary change for the future doesn’t happen. A time-honoured way of providing for accountability is through law suits, but in the case of the death of someone with mental illness, court action is rarely, if ever, undertaken. The Law Project, by identifying pro bono volunteer lawyers, by providing family members with support and encouragement, and by advocating for necessary legislative changes, seeks to change that.

Providing Accountability

Everything begins with accountability because without it – where there are no consequences for malpractice or negligence – the root causes of system failure are downplayed or ignored, and not much in the way of improvement happens:

  • Failure to pro-actively use involuntary admission where it’s called for continues as before.
  • Failure to share clinical information with family members also continues.
  • Ignorance by many, or most, service providers about what the applicable legislation actually says and the intent of the legislation goes largely unremedied as well.
  • The resulting tragedies continue as before.

Supposed remedies sound good on the surface but fall short in practice. MHSF collectively has long experience with them – quality improvement committees, patient complaint processes, risk management officers, inquests, the B.C. College of Physicians and Surgeons, and in one case a quasi-independent inquiry. None of such reviews prove satisfactory, with some of them just stonewalling. Hence the Law Project, to achieve some accountability for negligent or questionable practices. (We’ll shortly be adding, to the bottom of this page, a section with individual cases involving review processes.)

The heart of the project: overcoming challenges to civil suits

Most malpractice lawyers will decline to undertake malpractice suits unless they can foresee a sizeable award by the courts, because malpractice suits are expensive. Aside from legal fees, there are fees for expert witnesses, research costs, para-legal charges, and disbursements. Most personal injury lawyers, moreover, usually take on these cases on a contingency basis, for which a sizeable award is necessary to make their time and commitment, and taking on the risk of losing, worthwhile.

A case involving someone who had a serious mental illness – say the avoidable suicide of that person because of a clinician’s negligence – faces an even more primary obstacle, however. Court awards are based on pecuniary damages, going back to principles of property law, in this case financial provision for dependents or making up for lost inheritance because of lost future income. Those with serious mental illness, however, rarely have dependents for whom they are financially responsible, not to mention their rarely having large earned incomes (or the prospect of large earned incomes) to begin with. Even were a lawyer willing to act on a fee-paying basis, they would likely envision, from such an action, that the putative plaintiff – for example, a distraught parent or sibling – would end up swallowing considerable debt from the cost

of the action even if the case were won, and so recommend against it. Punitive damages, that are separate and apart, are rarely awarded in Canada.

The objective of the Law Project is to change that, by revisions of the law (the Family Compensation Act) and shifting precedent. Revisions would include a provision for major punitive damages – if, of course, the alleged negligence or malpractice is proven in court, – nottwithstanding that the mentally person who has died has no dependents to be looked after.

(Other provinces, for example, like Alberta and Saskatchewan, recognize damages for bereavement, with mandated payments of $82,000 and $60,000 respectively – too low, but at least recognizing the deceased’s life had value.)

An argument can also be made for compensation for immediate family members, like parents or siblings, who will have likely expended an enormous amount of time on coping with their loved one’s illness – trying to get them the treatment they need, helping them in the post-acute discharge stage, and, in many cases, just keeping them safe and alive. This may also involve loss of income and future prospects by, say, a parent themselves, since their ill loved one’s difficulties will have eaten up considerable time and distracted them from their work. Holidays may have been given up for a period – the loss of enjoyment of life. This long, intense, and stressful investment by the parents in their mentally ill child and the child’s future, if lost because of negligence or other malpractice, deserves compensation, in our view.

Such “investment” by a parent or parents is over and above what is normally required in raising a child, indeed may extend indefinitely into the child’s adulthood, when those without serious mental illness, by comparison, will no longer require such parental, or sibling or spousal, “investment” of time and money.

Nor should the compensatory value of a person’s life be discounted simply because they were seriously mentally ill. What’s most important here, though, isn’t any possible monetary award, but the accountability that legal action, in a court independent from mental health services, will provide – accountability that will improve clinical practices for others who are mentally ill. On that score, even an action that doesn’t generate a significant award, but which demonstrates negligence or malpractice, will have value, and also provide closure for a parent or sibling – the closure of having one’s day in court.

The project’s several elements

1. Making representation to government to have the Family Compensation Act, which governs these awards in “wrongful deaths,” modified to allow for (a) a special, punitive head of damage recognizing the systemic nature of mental-health-services failures in cases of avoidable deaths of those with serious mental illness, (b) bereavement damages, and (c) another head of damage recognizing the special “investment” by parents (and/or siblings where applicable), in advocating for their mentally ill relative in the past and otherwise trying to help them cope and keep them safe.

2. Until such changes to the Act take place, a leading objective is to find pro bono lawyers for such negligence and malpractice cases involving the seriously mentally ill, so that the legal costs, for the most part, will not be an impediment to family members considering legal action, thus encouraging such action even if a possible award might not be significant in dollar terms.

3. By being well-prepared ahead of time for a legal scenario, MHSF will be better able to present the option to family members and to assure them they will be in good hands if they decide to go ahead. Family members who have lost a loved one are so traumatized and overcome by grief that they find it difficult to even think of the stress of a court action. Making consideration of a legal action as easy as possible is essential.

4. In a parallel action, looking into legislative changes that might make complaints within the mental-health system more effective, however limited the impact, for example requiring that the handling of complaints be done independently of the applicable health authority and its personnel.

Case histories of failed grievance processes

This section is a work in progress. Please check back in a few months.