News

At the Schulich School of Law, our faculty members push legal research in bold new directions and make significant contributions to legal knowledge. They participate in lectures, workshops, and conferences that enhance legal debate on campus, across Canada, and around the world. 

One professor who has been doing important research in mental health law both at home and abroad is Sheila Wildeman. For the 2016 publication Law and Mind: Mental Health Law and Policy in Canada, she wrote a chapter called “From Insight (into Illness) to Incite (a Riot): Consent to Psychiatric Treatment in Canada.

Other Schulich Law professors who contributed chapters were Archie Kaiser (“Advocating for Persons with Mental Health Problems: Living Up to the Challenges of the 21st Century”), Constance MacIntosh (“Indigenous Peoples and Mental Health: The Role of Law and Policy”), and Elaine Gibson (“Privacy Protection and the Confidentiality of Psychiatric Health Care Records”).

Legal capacity on the world stage

Wildeman is also part of an international research project called Voices of Individuals: Collectively Exploring Self-Determination, which is being co-ordinated through the Centre for Disability Law and Policy at the National University of Ireland in Galway. “The purpose of the research is to reflect on the experiences of people who have been declared legally incapable of making decisions in one or more areas of their lives,” she says, “and then to ask what these experiences can teach us in terms of the need for law and policy reform.”

The project involves a series of workshops and conferences bringing together people with disabilities who have faced legal challenges to, or restrictions on, their decision-making capacity, and advocates and academics who have been engaged in critical evaluation of this area of law and policy. At the end of the project, the group will produce a book linking people’s lived experiences of encounters with the legal system with ideas about how the law should change.

The purpose of the research is to reflect on the experiences of people who have been declared legally incapable of making decisions in one or more areas of their lives, then to ask what these experiences can teach us in terms of the need for law and policy reform. — Professor Sheila Wildeman

Wildeman first attended a meeting at the Centre for Disability Law and Policy in April of 2016. There she was paired with Rusi Stanev, a 61-year-old Bulgarian who in 2000 was declared “partially incapacitated” by a Bulgarian court. They began a research partnership with the help of Stanev’s lawyer, Aneta Genova, who acts as an interpreter, to try to raise awareness of his legal fight for emancipation and for others who are facing similar legal challenges around the world.

In 2002, a public guardian (who had never even met Stanev) had him placed in the grim Pastra social care home for adults with psychiatric disorders, a facility located in a mountain wilderness some 400 kilometres from his home. There, Stanev and other residents were deprived of adequate food and clothing and forced to live in deplorable, unsanitary conditions. As Oliver Lewis, the director of the NGO Mental Disability Advocacy Centre (MDAC), has stated, “Inadequate heating and basic medicines caused a 10 per cent mortality rate in two winters, and Rusi was lucky to survive.”

Stanev had no ability to leave the institution because his identity papers, which he needed to travel, were held by the institution’s director, who was at this point his formal guardian. Nor could he initiate any type of legal proceeding, including a challenge to his guardianship, without his guardian’s consent. He lived under those conditions for seven years. His lawyer, Genova, who is with MDAC, puts the central question raised by his situation – for law and for society – this way: “How does it come about that a person can be locked up for years in an institution where he is forced to live out his life being treated like a soulless and impersonal object?”    

How does it come about that a person can be locked up for years in an institution where he is forced to live out his life being treated like a soulless and impersonal object?
— Aneta Genova, Rusi Stanev's lawyer

Following a visit from the Committee Against Torture to Pastra in 2006, and its denunciation of the conditions there, MDAC advocates began building a legal challenge around Stanev’s situation – a challenge that ended up in the European Court of Human Rights. In 2012, that court determined that the conditions in the Pastra care home had amounted to inhuman and degrading treatment, in violation of Article 3 of the European Convention on Human Rights. 

Moreover, Stanev had been unlawfully deprived of his liberty, in violation of Article 5. The latter ruling was a breakthrough in recognizing that placement by a guardian in a “social care home” can amount to a deprivation of liberty. The Court further determined a breach of Article 6, given the restrictions that Stanev’s “incapacitated” status placed on his ability to access justice to assert his fundamental rights.

However, all these years later, Stanev is still fighting to have his guardianship removed by the Bulgarian courts – and he is still facing obstacles accessing the courts because of that status.

While this may all seem very far away, Rusi Stanev’s story is eerily reminiscent of the situation of Landon Webb, the Nova Scotia man who recently brought a legal challenge to Nova Scotia’s antiquated guardianship law, the Incompetent Persons Act. Webb was successful in June of 2016 in compelling government to concede the unconstitutionality of that law, which among other things obstructed access to justice on the part of those who are deemed “incapable.”

‘We are here to die’

Last November, after having several Skype conversations with Stanev and Genova, the three of them returned to Galway for another meeting. Wildeman and the translator helped Stanev put together a PowerPoint presentation explaining his journey. “It was short but powerful,” says Wildeman. “It was the first time that Rusi had methodically written out and read to an audience key parts of his story about experiencing suffering and social injustice and fighting back.”

(From left): Professor Sheila Wildeman, Rusi Stanev, and a translator in Galway, November 2016

In his presentation, Stanev spoke of his journey to the Pastra care home, and recalled: “At Pastra, I asked someone: ‘Why are we here?’ He said: ‘We are here to die.’ ” He included criticism of the limits his guardianship status places on his ability to access justice: “Everyone else who needs a lawyer can access, appoint, instruct the lawyer, even if they have a small problem, they can make a contact with that lawyer. But I am under partial guardianship and cannot. I need a lawyer who can protect my human rights, who will fight with the judicial system to remove my guardianship. I am a person, not an object. I need my freedom.”

Wildeman and Stanev are working to meet a May deadline for a first draft of their chapter of the book; her job is to make links between Rusi’s story and needed law and policy reforms in Bulgaria and beyond. She plans to reflect in particular on the duty of state signatories to the U.N. Convention on the Rights of Persons with Disabilities (including Canada) to support legal capacity. Supports for legal capacity, in Wildeman’s analysis, extend to social supports such as housing and basic nutrition, as well as assistance in navigating services and averting or planning for effective responses to mental health crisis. 

“A stable and supportive housing situation is the start of the ability to direct one’s own life,” says Wildeman. “I have been surprised at how similar the challenges are in Bulgaria and Nova Scotia, in terms of concurrent failures to support legal capacity and to provide the social determinants of mental health. The challenges of accessing justice for those labelled as mentally incapable are also disturbingly similar.”

Opportunities for law reform

In December, Wildeman and Susanne Litke of Dalhousie Legal Aid Service, who is Landon Webb’s lawyer, attended a CBA-NS Joint Elder Law and Wills, Estates and Trusts Law Section Meeting at Cox & Palmer in Halifax to discuss Webb’s court case and Nova Scotia’s Incompetent Persons Act.

“It was an honour to represent Landon,” said Litke. “He’s a brave, strong, kind, compassionate young man. He wanted to change the law for both himself and for others. His success in being declared competent was incredibly significant to him. He wants the new law to restrict a person’s independence minimally and to recognize their capacity.”    

What do we need to do to respond to the different needs, as well as wishes, of people – for example, to ensure that we are supported in our wishes to continue to live at home and age in place, even as our need for care may increase?
— Professor Sheila Wildeman

That’s what mental health law advocates want, too. “After years of government inaction, this is an opportunity to fundamentally reform Nova Scotia’s guardianship law,” said Wildeman at the meeting. “Now we have to ask ourselves, what do we need to do to respond to the different needs, as well as wishes, of people – for example, to ensure that we are supported in our wishes to continue to live at home and age in place, even as our need for care may increase?”

Wildeman believes we should forgo existing models of capacity and “incapacity” assessment in favour of a more holistic assessment – one that inquires into what supports are required to activate or give expression to a diverse range of abilities and capacities. This, in turn, will require laws that place a duty on the state to enable access to the supports that would allow a person to exercise their decision-making capacity.

Critics would argue that such legislative reform would be expensive to implement. Wildeman counters: “How valuable are basic rights to liberty and equality?” And given that the law on guardianship and legal incapacity has long specifically devalued the liberty and freedom of those with disabilities, she adds: “How serious are we about recognizing the equal personhood and citizenship of persons with disabilities?”

Wildeman is equally engaged in both her national and international research. “Working with Rusi has given me a new understanding of how hard it can be for someone who has experienced trauma and oppression to tell their own story. And yet it has also shown me how significant and how rewarding it is when that happens. It’s making me think more creatively about how we as academics can work with, and learn from, those who have faced and overcome enormous challenges, and who as a result have insights into law and policy that may otherwise elude the so-called experts.”