Download It Doesn`t Work: Unpacking Mental Health Policy and Legislation

IT DOESN’T WORK:
UNPACKING MENTAL HEALTH
POLICY AND LEGISLATION
APRIL 2013
IT DOESN’T WORK:
UNPACKING MENTAL HEALTH
POLICY AND LEGISLATION
April 2013
Acknowledgement
The Schizophrenia Society of Ontario would like to express our appreciation to the following
individuals and organizations for contributing their time to review and provide feedback on
earlier versions of this report. Please note that this is not an endorsement by the individuals
and organizations listed.
Dennis Long, Breakaway Addiction Services
Dr. Derek Pallandi, Centre for Addiction and Mental Health
Dr. Heather Stuart, Queen’s University
Dr. Tony George, University of Toronto, Centre for Addiction and Mental Health
Joanna Pawelkiewicz and Peter Lye, The Dream Team
John E. Gray, co-author “Canadian Mental Health Law and Policy”
Ryan Fritsch, Human Rights Lawyer
Tess Sheldon and ARCH Disability Law Centre
Tucker Gordon, Empowerment Council
TABLE OF CONTENTS
Executive Summary .................................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Background ............................................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Introduction ......................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section One: Basic Concepts ....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section Two: Overview of Ontario’s Current Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Canadian Charter of Rights and Freedoms .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 19
Ontario Human Rights Code ................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Health Care Consent Act ...................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …. . . . . . . . . . . . . 20
Mental Health Act ............................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Substitute Decisions Act ...................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section Three: History of Mental Health Law ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Shift from “Need for Treatment” to “Dangerousness” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Developments in Canadian Mental Health Legislation Post-US Reforms .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section Four: Perspectives on Mental Health Law .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 29
Section Five: Clinical Outcomes of “Involuntary Treatment” .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Overview of Available Studies ................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Methodological Issues and Inconsistencies .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 32
Section Six: Current State of Affairs ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 35
Purpose of Mental Health Legislation ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Understanding Capacity ....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Ability to Predict Dangerousness ............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section Seven: A Human Rights-Informed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Positive and Negative Rights ................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Human Rights Principles in Mental Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 40
Example from Scotland ....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section Eight: Relationship between Law and Policy .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Conclusion ........................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Appendix A .......................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
References ........................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Executive summary
Mental health laws are complex and operate within a greater socio-legal sphere. According to the World
Health Organization, the fundamental goal of mental health legislation is to protect and promote the lives
and well-being of persons with mental illnesses.
In Ontario, much of the current dialogue on mental health legislation is focused on the involuntary
treatment of persons experiencing mental illnesses, posing it as either a necessary medical response or
a severe infringement on rights and freedoms. The blanket use of the term “involuntary treatment” is also
misleading given that in Ontario, admission and treatment are separate matters, with criteria for the former
related to the probability of physical and mental harm and/or deterioration, and the criteria for the latter
related to the capacity to provide informed consent.
Meanwhile, questions regarding the efficacy of mental health-related laws in actually promoting health and
well-being at the service level and the appropriateness of criteria used to decide who requires such a medical
response remain largely unexplored. The historical context behind our current laws and policies related to
mental health, which have resulted in our current discourse on detention and treatment, is also often overlooked.
Mental health policies and legislation have a direct impact on people that the Schizophrenia Society of Ontario
(SSO) serves. Given recent calls to re-examine Ontario’s mental health laws, and in order to expand our
understanding about mental health legislation in Ontario, the SSO undertook a review of mental health law
in this province. The findings from this research are consolidated under the following sections:
1. Basic Concepts
This section uses lay terms to explain terminology and concepts that are frequently used in relation
to mental health law such as admission, treatment and consent. It also outlines the difference between
involuntary admission and involuntary treatment.
2. Overview of Ontario’s Current Legislation
Provinces and territories have jurisdiction over the delivery of health care, which includes establishing
and enforcing health care related legislation. At the same time, the Charter of Rights and Freedoms is the supreme
law in Canada and all other federal and provincial statutes related to the provision of care to people with
mental illnesses in Ontario, which are summarized in lay terms in this section, must conform to the rights and
freedoms guaranteed in the Charter. Provincial mental health legislation, therefore, must comply with the Charter
through a balance of the autonomy and liberty of the individual with the safety and security of the public.
3. History of Mental Health Law
This section provides an overview of the history related to mental health law in North America, beginning
with Canada’s first piece of mental health legislation and going into the series of reforms that took place
over the 19th and 20th centuries. The drivers behind many of these changes are identified along with the
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various factors that made these changes possible. This section provides an historical context for the shift
in involuntary admission from need for treatment to perceived dangerousness. Canada’s adoption of these
changes, which were first introduced in the US, is explained, with attention paid to the differences
between Canada’s provincial mental health laws.
4. Perspectives on Mental Health Law
This section provides a theoretical framework for how we understand mental health law and its role. Two
sets of dichotomized perspectives on the effectiveness of mental health legislation are compared: “civil
libertarian” versus “human needs,” and “judicial” versus “medical.” This section outlines the ideological
conflict that results from the use of these opposing perspectives and the challenges of legal reform in the
context of this dichotomy.
5. Clinical Outcomes of Involuntary Treatment
Section five provides a review of the literature on involuntary admission and treatment, with a focus on the
clinical outcomes when involuntary admission or treatment is used. This section highlights challenges within
the existing literature including methodological issues and inconsistencies, lack of an appropriate comparator,
and the absence of consideration of social and environmental factors, as well as the conflicting results that
have emerged from research based on the existing literature.
6. Current State of Affairs
This section provides a more in-depth overview of three complex concepts that pose additional challenges in
the context of mental health law reform. First, the “Purpose of Mental Health Legislation” discusses how
our current mental health legislation is failing to meet the needs of people with mental illnesses in Ontario.
Second, “Understanding Capacity” provides a deeper examination of the complexity of capacity assessments.
Third, “Ability to Predict Dangerousness” outlines the problematic nature of dangerousness as the criteria for
involuntary admission.
7. Human Rights-Informed Approach
Section seven goes outside of Ontario and Canada to examine the current international discourse on mental
health legislation. Human rights principles and their applicability to mental health legislation on a global level
is examined. The concept of positive and negative rights is introduced, with an example of how Scotland
incorporated positive rights into their mental health law.
8. Relationship between Law and Policy
The final section examines the inherent interconnectedness between mental health legislation and mental
health policy. Mental health law as an influencer of policy and mental health policy as a supporter of
legislation are explained.
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The SSO’s examination of this topic concludes that:
1. The current approaches to mental health law reform lack clear empirical evidence, produce no “right”
answer and are inherently divisive;
2. Positive rights are important and must be pursued to ensure that people can access care they need
when they need it, rather than only at a point of crisis;
3. W
idening the net on involuntary admission is not the solution to addressing mental illnesses and this
topic requires an in-depth analysis of the level and quality of care we aim to provide and how we will
achieve this;
4. W
e have a responsibility to think about how we can use our current laws and policies proactively to
better serve people in the community and prevent the need for the use of emergency inpatient care in
the first place;
5. L
egislators and policy-makers must provide the right access to care, with the necessary fiscal contributions,
to back it up.
The ultimate goal of this exploratory report is to increase knowledge about mental health law and expand the
dialogue on this topic beyond the confines of involuntary admission and treatment. The report concludes with
a call for a broader, more in-depth approach to the complexity of mental health law reform.
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background
It is typical for laws, including mental health legislation, to be reviewed and amended periodically as society
progresses and evolves. In 2010, a report released by the Select Committee on Mental Health and Addictions1
recommended a review of mental health law in Ontario as one of the solutions to address the numerous
deficiencies in the mental health system. Specifically, this report recommended:
21. The Ministry of Health and Long-Term Care should create a task force, incorporating adequate
representation from, among others, mental health clients and their caregivers as well as mental health
law experts, to investigate and propose changes to Ontario’s mental health legislation and policy pertaining
to involuntary admission and treatment. The changes should ensure that involuntary admission criteria
include serious harms that are not merely physical, and that involuntary admission entails treatment.
This task force should report back to the Ministry within one year of the adoption of this report by
the Legislative Assembly.
Interestingly, while this report presented a recommendation for a review, it simultaneously proposed
what the end result of this “review” should be: expansion of involuntary treatment criteria and automatic
treatment authorization.
The Schizophrenia Society of Ontario (SSO) along with other groups and organizations in the mental health
sector advocated for the establishment of the Select Committee on Mental Health and Addictions and actively
participated in the consultations used to inform their final report. As such, if this review were to take place, there
may be an expectation for mental health organizations such as the SSO to be active participants in its process.
It must also be noted that historically, the SSO has taken a “need for treatment” stance related to mental
illnesses, which resulted in advocacy for laws and policies that would promote and prioritize treatment for
schizophrenia. Due to the recent developments in research on the social determinants of health, treatment
efficacy, stigma and the recovery model; changes to mental health care delivery; the expansion of the SSO’s mission
to include individuals living with schizophrenia and psychotic illnesses; and our increased work conducting
evidence-based policy analysis, we felt our most appropriate role at this time was to conduct an in-depth
analysis of this issue, which would in turn form a foundation for informed dialogue and future advocacy.
Because mental health policies and legislation have a direct impact on the people that the Schizophrenia Society
of Ontario (SSO) serves and considering the above-noted factors, the SSO undertook a review of mental health
law and policy in Ontario in order to develop a well-informed opinion on the legislation of involuntary
admission and treatment. As the review progressed, the need for a broader understanding of mental health
legislation and how it operates within the current mental health system became evident and the scope of the
review was expanded well beyond this one aspect of treatment and care.
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Introduction
Mental health laws are complex and operate within a greater socio-legal sphere. Because people with mental
illnesses encounter multiple social and systemic barriers and are exposed to a wide range of rights violations,
mental health legislation has a fundamental goal of protecting and promoting the lives and well-being of persons
with mental illnesses.4 Yet the presence of mental health legislation does not itself guarantee respect and the
protection of human rights; on the contrary, it has the potential to result in the violation of rights for this
marginalized group.3
Currently in Ontario there is no consensus on whether our provincial mental health legislation is adequate.
Any discussion of mental health law is entrenched in emotional responses, personal experiences or value-laden
perceptions of the legislation. Most of the dialogue is concentrated around the involuntary treatment of persons
with mental illnesses, posing it as either a necessary medical response4 or a severe infringement of rights and
freedoms.5 By using the umbrella term of “involuntary treatment,” such dialogue further fails to adequately
distinguish between “involuntary detention” and “capacity to consent to treatment,” which under the current
legislation are separate legal mechanisms. At the same time, there is a general lack of understanding about how
mental health laws are interpreted and applied at the service level and how they function within the larger mental
health system in this province.
In order to ensure a well-informed understanding of mental health laws in Ontario, a review of literature was
undertaken.* Through this review, the SSO examined 12 position reports on mental health law, 5 international
standards and best practice summaries, 39 academic articles on clinical outcomes of involuntary treatment,
and 3 books on mental health and law. To increase the scope of our understanding, the SSO further consulted
with experts on mental health law in Canada, as well as representatives from the mental health sector and
rights advocates.
While thorough exploration of this topic is needed, it is beyond the scope of this report. The current report
serves to briefly consolidate the findings to date and provide a foundation for further exploration. The report is
divided into the following sections:
1. Basic Concepts
2. Overview of Current Legislation in Ontario
3. History of Mental Health Law
__________________
*T
his exploratory review did not explore privacy legislation nor did it encompass the forensic system; the focus was
solely on mental health legislation pertaining to involuntary treatment and admission. However, it must be noted
that the capacity to consent to treatment legislation applies equally in the forensic context, with the exception of
the special provision of “make fit” orders under the Criminal Code of Canada.
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4. Perspectives on Mental Health Law
5. Clinical Outcomes of Involuntary Treatment
6. Current State of Affairs
7. A Human Rights-Informed Approach
8. Relationship between Law and Policy
Purpose of this report
The intent of this report is not to state a position on involuntary admission and/or treatment but rather to
highlight the nuances present in our current understanding of mental health legislation and policy. As such,
the ultimate goal of this exploratory report is to increase knowledge about mental health law and expand
the dialogue on this topic beyond the confines of “involuntary treatment,” with the hope that any future
amendments to Ontario’s mental health law take into account the full breadth of information related to
this topic.
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Section One
Basic Concepts
This report examines many of the fundamental concepts related to mental health legislation. While many
of the terms associated with these concepts are used regularly within the mental health sector, their meanings
are complex and not always fully understood by all. The following section serves to define and briefly explain
the main concepts used throughout this report.
Assessment
A psychiatric assessment is an examination by a physician of an individual’s mental health status. An
assessment in and of itself does not include admission to a hospital or treatment for a mental illness.
In Ontario, an individual can be brought to a hospital for a psychiatric assessment under the order of an
examining physician, a Justice of the Peace or a police officer if s/he is deemed likely to harm themselves
or others, or showing a lack of competence to care for themselves. The criteria for an application for
psychiatric assessment are explained in more detail in section two.
Admission
Admission occurs when a person formally becomes a patient of a hospital or psychiatric facility for
“observation, care and treatment.” In Ontario, the Mental Health Act and Health Care Consent Act define
three types of admission for individuals with mental illnesses, and stipulate that the individual be
informed of the status of their admission:
a) Voluntary admission: Individuals with mental illnesses often voluntarily seek out care for their
conditions. Voluntary patients may freely determine whether to stay or leave the hospital or
a psychiatric facility.
b) Informal admission: An informal patient is someone who is admitted with the consent of another
person, called a substitute decision-maker (SDM). Informally-admitted patients are typically children
or the elderly who are unable to consent to their own admission. As soon as they are able, informal
patients may become voluntary or involuntary patients.
c) Involuntary admission: An individual is admitted as an involuntary patient only after meeting certain
criteria on a psychiatric assessment – these criteria are outlined in section two of this report. An individual
who is initially admitted as a voluntary or informal patient may have their status changed to involuntary
if they meet those same criteria. Involuntary admission, also commonly referred to as involuntary
commitment or civil commitment, is only for individuals who are not suited to voluntary or informal
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admission; that is, not voluntarily seeking admission to a hospital. Involuntary patients may only leave
the hospital or psychiatric facility if permitted by a physician.
Detention
Detention is a word commonly and legally used to describe the period of time that a person is held in
custody at a hospital or psychiatric institution as an involuntary patient. The word “detained” in the
context of hospital-based care refers to being kept in hospital against one’s will. Under the Mental Health
Act, detention is a form of restraint and is legal only under certain circumstances.
Treatment
Under Ontario’s Health Care Consent Act, “treatment” is defined as anything that is done for a therapeutic,
preventive, palliative, diagnostic, cosmetic or other health-related purposes. Treatment refers to a plan of
treatment, a course of treatment or a community treatment plan. Mental health treatment can include, amongst
other things: medication, diagnostic procedures such as urine tests, psychotherapy (e.g. mindfulness, cognitive
behavioral therapy, etc), programs to assist people in changing behaviors that they want to change, and ancillary
or supplementary procedures such as blood tests (to monitor medication side effects, for example). Mental health
assessments do not constitute treatment under current law, nor does admission to or detention in a hospital in
and of itself.
Consent
“Consent” refers to one’s voluntary and informed agreement to a proposed treatment, which cannot be obtained
through deception, misrepresentation of information or duress. In order to give consent to a treatment, a
person (or their substitute decision maker) must receive all the information from their health practitioner that
a reasonable person would require in order to make a decision about said treatment. This includes information
about the nature of the treatment, the expected benefits and risks associated with the treatment, potential side
effects, other treatment options, and the potential consequences of not having the treatment. Consent is required
from all patients, no matter what their health status, before treatment can proceed, with limited exceptions for
emergency treatment.
Capacity to Consent to Treatment:
All persons in Ontario are presumed to have the capacity to direct their care and to choose what treatment
they receive, including the choice to receive no treatment at all. If an individual’s ability to consent to
treatment decisions is questioned, a physician will determine his or her capacity using a set of criteria,
which are explained in section two of this report.
An individual who is found or presumed capable of making their own treatment decisions cannot be treated
without first giving their consent. This person has the right to refuse treatment, even if a physician feels that
the individual would medically benefit from said treatment. In Ontario, treatment must be consensual, even
if the individual is admitted as an involuntary patient.
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An individual who is found by a physician to lack the capacity to make treatment decisions will
have a substitute decision-maker appointed who would make decisions on his or her behalf. Substitute
decision-making is explained in greater detail later in this report.
Involuntary Treatment
Involuntary treatment is treatment without consent. The closest thing Ontario has to involuntary treatment
is when someone expresses a wish not to receive treatment and then is found incapable of making treatment
decisions, and their substitute decision-maker consents to said treatment on his or her behalf. In some
other provinces, for example, British Columbia, a more rigorous form of involuntary or non-consensual
treatment exists, as treatment can be administered to someone based solely on their status as an involuntary
patient – regardless of whether s/he is capable of consenting to treatment decisions, or what a substitute
decision-maker expresses on his or her behalf.
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Section TWO
OVERVIEW OF CURRENT LEGISLATION IN ONTARIO
In Canada, provinces and territories have jurisdiction over the delivery of health care, which includes establishing
and enforcing healthcare-related legislation. At the same time, the federal Constitution Act, 1982, which includes
the Charter of Rights and Freedoms, 1982, is the supreme law in Canada and all other federal and provincial statutes
must conform to the rights and freedoms guaranteed in the Charter. This applies to all provincial laws related to
the provision of care to people with mental illnesses in Ontario: Ontario Human Rights Code, 2012, Mental Health Act,
1990; Health Care Consent Act, 1996; Personal Health Information Protection Act, 2004; and Substitute Decisions Act, 1992.
Charter of Rights and Freedoms, 1982
The Charter of Rights and Freedoms (Charter) guarantees certain fundamental rights and freedoms to all people
in Canada and delineates protection from state actions that may violate these rights. For the purposes of this
review, the following sections of the Charter are particularly pertinent to the rights of persons with mental
illnesses, and are explained below in lay terms:
Section 1: Override
The Canadian Charter of Rights and Freedoms guarantees a set of rights and freedoms. These rights are not
absolute, and can be limited if deemed necessary to protect other rights.
Section 7: Life, liberty and security of person
Everyone has the right to life, liberty and security of the person. The state cannot take away these rights
unless principles fundamental to fairness and justice are followed.
Section 9: Detention or imprisonment
Everyone has the right not to be arbitrarily detained or imprisoned. This means no one can be stopped,
held for questioning, arrested or put in jail unless the police have a good reason to do so.
Section 10: Arrest or detention
If someone is arrested or detained, s/he must be given reasons for this right away, and must
be informed of their right to a lawyer. If the detention is not legal, the individual must be released.
Section 12: Treatment or punishment
Everyone is protected from cruel and unusual punishment such as punishment that degrades human
dignity or is out of proportion to the offence.
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Section 15: Equality rights
Everyone has the right to equal protection of the law without being discriminated against because of race,
ethnicity, colour, religion, sex, age or mental or physical disability. People also have the right to equal benefit
of the law, which means that in some cases people may have to be treated differently or be given certain
accommodations or supports to ensure that they benefit equally and are not disadvantaged.
In accordance with these Charter provisions, any law that is considered to be an infringement of guaranteed
Charter rights must demonstrate that it is a necessary infringement required to balance the protection of the
individual with that of society. Further, this violation must be minimal and proportionate. Provincial mental
health legislation, therefore, attempts to comply with the Charter through a balance of the autonomy/liberty of
the individual with the safety and security of the public.
Ontario Human Rights Code, 1990 (2012)
The Ontario Human Rights Code (the Code) is a provincial law that provides for equal rights and opportunities,
and freedom from discrimination. The Code has primacy over all other legislation in Ontario, unless the other
legislation specifically states that it applies despite the Code. In Ontario, the Code provides for civil remedies,
not criminal penalties.
The Code recognizes the dignity and worth of every person in Ontario and applies to the areas of employment,
housing, facilities and services, amongst other things. The goal of the Code is to prevent discrimination and
harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex,
sexual orientation, disability (including mental illnesses and addictions), gender identity and gender expression,
age, marital status, family status, receipt of public assistance, and record of offences.
Health Care Consent Act, 1996
The Health Care Consent Act (HCCA) sets out criteria for determining capacity in treatment decisions and for
obtaining informed and voluntary consent from either the individual or their substitute decision maker (SDM)
where capacity is in question. It must be noted that under this Act, all persons are presumed to have the capacity
to make treatment decisions, unless proven otherwise.
The HCCA also sets out an independent review process through what is called the Consent and Capacity Board,
which hears cases from individuals and medical professionals who want to challenge a matter regarding capacity,
consent, involuntary admission or substitute decision making. This legislation also delineates who may be a
substitute decision maker and their responsibilities.
The HCCA outlines criteria for consensual decision-making and asserts that regardless of an individual’s
diagnosis, everyone is presumed capable of consenting to, or refusing treatment. In order for an individual
to be deemed legally incapable they must fail to demonstrate:
1. They are able to understand the information that is relevant to making the decision and
2. They are able to appreciate the reasonable foreseeable consequences of a decision or lack of decision.
20
The capacity test is only testing the individual’s ability to understand and appreciate the consequences – actual
understanding is not required to pass the test. As such, an individual deemed capable may still make decisions
that others may not deem to be in their best interest, which must be respected under the law. Within the Act,
capacity is defined as a fluid concept; that is, an individual may be capable of making a decision about one
treatment but not another, and could likewise be capable at one time and not another. As such, under the
current legislation, incapacity findings are very narrow and always specific to particular treatment modalities
(pharmacological treatment, for example), even within the context of a broader treatment plan.
If an individual is found incapable, the decision to consent to or refuse treatment is temporarily assigned to an
SDM who is typically the person’s guardian, attorney for personal care, spouse/partner or other family member.
Under the HCCA, that SDM can make decisions on behalf of the individual only while s/he is deemed to be
“incapable” and is obligated to make decisions in accordance with the incapable individual’s “best interests.” It
is important to note that “best interests” are defined in the Act as the individual’s values, beliefs and prior wishes;
efficacy of the treatment; whether benefits of treatment outweigh harms; and whether a less restrictive/intrusive
treatment can be as beneficial 7 – and not the SDM’s sole interpretation of what would be in the individual’s
best interests. Under current law, if an individual wishes not to receive treatment, and then later becomes
incapable of making treatment decisions, the SDM must consider this prior capable wish as part of their
“best interests” obligation.
Mental Health Act, 1990
Every province and territory’s mental health legislation is distinct, each outlining its own procedures for
voluntary, informal and involuntary admission to a psychiatric facility as well as for outpatient treatment
for individuals subject to Community Treatment Orders (CTOs), where applicable. Among these pieces
of legislation, there are variations in provisions and criteria, particularly around involuntary admission
and treatment authorization.
Under Ontario’s MHA, an individual can be involuntarily detained to undergo a psychiatric assessment
(not treatment) if an examining physician, Justice of the Peace or police officer has reasonable cause to
believe that the person:
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) h
as behaved or is behaving violently towards another person or has caused or is causing another
person to fear bodily harm from him or her; or
(c) h
as shown or is showing a lack of competence to care for himself or herself,
and if in addition the physician is of the opinion that the person is apparently suffering from a mental disorder
of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person.8
21
Following the psychiatric assessment, the attending physician will either release the individual or admit
him or her. If the individual is not suited for admission as a voluntary or informal patient, he or she can
be admitted as an involuntary patient if this physician is of the opinion that he or she is “suffering from mental
disorder of a nature or quality that, unless they remain in the custody of a psychiatric facility, will likely result in:
(a) serious bodily harm to the patient,
(b) serious bodily harm to another person, or
(c) serious physical impairment of the patient.”
Over the years, the MHA has undergone a number of significant changes. In 1983, this legislation was
amended to include provisions for advocates and independent rights advisers in order to comply with Charter
requirements. These changes coincided with recommendations arising from coroner’s inquests into a series
of patient deaths that occurred at psychiatric facilities.
Another major amendment was made to Ontario’s MHA in 2000. Called “Brian’s Law,” in memoriam of the
sportscaster, Brian Smith, who was killed by an individual with an untreated mental illness. This amendment
extended involuntary admission criteria to include prevention of “mental deterioration,” under the condition
that the individual in question had previously responded positively to treatment. As such, as an alternative to
the above criteria, a physician may now involuntarily admit a person if this person:
(a) h
as previously received treatment for mental disorder of an ongoing or recurring nature that, when not
treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another
person or substantial mental or physical deterioration of the person or serious physical impairment of
the person;
(b) has shown clinical improvement as a result of the treatment;
(c) is apparently suffering from the same mental disorder as the one for which he or she previously received
treatment or from a mental disorder that is similar to the previous one;
(d) g iven the person’s history of mental disorder and current mental or physical conditions, is likely to cause
serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or
physical deterioration or serious physical impairment; and
(e) is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or
her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has
been obtained.9
In turn, the above criteria, and in particular (d) and (e) together, are the closest to “involuntary treatment”
provisions found in provinces other than Ontario, where admission is not separated from treatment.
22
The MHA sets out specific timelines during which a person may be examined, assessed and admitted to hospital
or detained. All of these timelines are firm and failure to observe specified time frames can invalidate detentions
or admissions.
The amendments to Ontario’s MHA in 2000 also included the provisions for community treatment orders
(CTOs). CTOs allow for prescribed treatment in the community if an individual has a previous history of two
or more hospital admissions, or more than a cumulative thirty days in hospital during the preceding three years.10
In order for someone to be put on a CTO, he or she must meet the criteria for involuntary admission; as such,
CTOs are put forward as an alternative to hospital admission but impose the same legal form of detention.
Accordingly, at any time a person on a CTO may be forcibly returned to a facility and detained for assessment.
Substitute Decisions Act, 1992
The Substitute Decisions Act (SDA) governs the granting of a “power of attorney” for personal care (including
treatment and admission decisions) and property (i.e. finances and real estate). Under the SDA, a capable
person can appoint someone to make decisions on his or her behalf during a period of incapacity, referred
to as a “power of attorney.” In the case of personal care decisions, if no one was specified, then the court
appoints the “power of attorney.” In the case of property decisions, there exists a third option called a
“statutory” guardian, which can be either the Public Guardian and Trustee or someone approved by them.
Though not specifically mentioned within the Act, this person can also outline for their power of attorney a
plan of care they would want to receive in the event that they become incapable – this is commonly referred
to as “advanced directives.” The SDA also establishes the procedure by which another person may apply to
a court to be appointed guardian when an incapable person has not written, prepared or granted a power
of attorney.
23
Section THREE
history of mental health law
In Canada, laws governing the admission and treatment of persons with mental illnesses have been in place since
the mid-19th century and have been affected by reforms in other countries. These laws were first based on the
British Lunatic Asylums Act, 1853 and historically, the basis for mental health laws was the individual’s assumed
need for treatment as assessed by a physician and authorized by a judge.11 The consent of the person was not
taken into account, nor could an individual commit him or herself to an institution voluntarily. There was also
no distinct treatment authorization separate from that of involuntary admission authorization.12
In the latter part of the 19th century, psychiatrists began to question the effectiveness of institutionalization
alone and turned to physical interventions such as malarial fever therapy, electroconvulsive therapy and lobotomy.13
This led to a series of exposés in the late 1940s that focused attention on the terrible conditions and outright
abuses of people with mental illnesses in many of the mental health institutions.14 In Canada, the Canadian
Mental Health Association (CMHA) was the foremost mental health reform group concerned with the
deplorable conditions that characterized Canada’s institutions for the care, treatment and control of the
“insane” and “mentally diseased.”15
The shift in the societal response to people with mental illnesses began in the post-WWII period and led to
major changes in mental health legislation in the mid-20th century due to a confluence of socio-political and
legal factors. Civil rights became a major issue in the 1950s, and the absence of these rights for people with
mental illnesses subsequently gained attention.16 The civil rights movement also raised concerns about the
state’s intervention into the lives of persons with mental illnesses and promoted the right to self-determination.
Emerging beliefs positioned mental illnesses as a social construct and questioned the biological justification for
hospitalization. Some of these popular beliefs were given credibility in academic circles, describing mental illness
as a “label,” a natural response to an insane society, and a response to institutionalization.17 Within this context,
the rights movement served as the legal foundation for dismantling the discredited asylum system and the
subsequent limitation of medical power.18
Around the same time, the first anti-psychotic drugs became available, which allowed for treatment in the
community and facilitated the trend towards “de-institutionalization.”19 De-institutionalization refers to the
intended shift of mental health care from hospitals to outpatient, community-based services and supports.
The notable fiscal benefits of reducing hospital-based care along with treatment advances lent further support
to the notion that individuals could live independently and be effectively treated in the community.20
Other reforms to mental health law happened through legal means, which operated in the context of larger
socio-political changes in the North American society.
25
Shift from “Need for Treatment” to “Dangerousness”
The shift from “need for treatment” to “dangerousness” as the prerequisite for the involuntary detention of
people with mental illnesses first happened in the United States in the District of Columbia (DC). In 1963,
the DC Senate introduced a bill that for the first time included provisions for individuals to voluntarily check
themselves in for psychiatric treatment and specified that they would not lose any of their civil rights by virtue
of hospitalization.21 At the same time, the criteria for involuntary treatment were limited to those who were likely
to injure themselves or others if allowed to remain at liberty. This second aspect served to discourage involuntary
hospitalization by making it more difficult.22
Further reforms in the US were pushed through via litigation. In the late 1960s/early 1970s the Mental
Health Bar was informally created by Bruce Ennis, a First Amendment lawyer and former legal director of
the American Civil Liberties Union. The goal of this emergent bar, led by Ennis, was to abolish involuntary
mental hospitalization. Ennis stated: “My personal goal is either to abolish involuntary commitment or to set
up so many procedural roadblocks and hurdles that it will be difficult, if not impossible, for the state to commit
people against their will.” 23 In turn, the Mental Health Bar advocated for dangerousness to be the sole standard
for involuntary admission, to narrow the definition of “danger,” and to establish legal safeguards for civil
commitment procedures.
This shift occurred in part due to the emerging beliefs promoted by theorists such as Szasz,24 Laing,25 Rosenhan26
and Goffman27 who defined mental illness as a social construct and as a means of state social control over
people through drugs. Psychiatric medications were described as mind-controlling substances with dangerous
side effects which the state could not justify forcing on a person, and whose use ought to be limited only to
emergency situations as a form of “chemical restraint.” 28 In this context, the “need for treatment” criteria
were argued to be an infringement of civil liberties: involuntary commitment, if justified at all, should occur
only when there is evidence that a person is dangerous to others, and possibly themselves.
Once commitment was based upon “dangerousness,” the requirement for procedural protections through the
criminal justice system for those “accused” of being dangerous was proposed.29 Likewise, because dangerousness
could be prevented through segregation alone, and no longer necessitated the need for treatment, the right to
refuse treatment was introduced. The detachment of treatment authorization from involuntary admission was
further based on the notion that just because a person was deemed “dangerous,” it did not follow that they were
incompetent to make all decisions, including treatment decisions.
The above changes, which some would argue further stigmatized individuals with mental illnesses by linking
mental illnesses with dangerousness and continued to infringe on their rights and freedoms, were supported
by rights advocates at the time because they were seen as a means toward complete abolition of all civil
commitment.30 “Having narrowed the criterion for commitment to dangerousness, they hoped to invalidate
that last basis on both practical and constitutional grounds. While psychiatrists could diagnose psychosis with
reasonable reliability, they could not predict dangerousness with comparable confidence.” 31
However, the dangerousness criteria were never dropped. Because the dangerousness argument was put forward
as a measure to protect public safety, legislators and judges alike refused to dispense with it. It may be further
26
speculated that the dangerousness criteria remained because no other plausible alternative was presented on how
to identify persons with mental illnesses whom society deemed in need of hospital admission.
By 1979, all US states adapted their mental health legislation to include the above reforms. Since that time, a
number of states have broadened the strict dangerousness criteria to include the need for treatment, often after
highly publicized incidents of violence committed by persons with mental illnesses.32 In addition, over 42 states
have now introduced outpatient committal legislation (CTOs), again reaffirming the shift back to the “need
for treatment”.33
The implications of the changes in the US were far reaching. Because the concept of mental illness itself was
called into question, the foundation was laid for the growing community of people who challenged the status
quo dominance of psychiatry and the strictly medical interpretation of mental illness. For the first time people
could refuse treatment, even if their mental health appeared to be continuously deteriorating. Furthermore,
mental health admission and treatment decisions were moved from the medical sector to the jurisdiction of the
legal sphere, and the confluence of law and medicine became further pronounced. Meanwhile, all of this took
place while people were being discharged from psychiatric institutions and re-directed to a newly-forming system
of community-based care.
Developments in Canadian Mental Health Legislation Post-US Reforms
During the 1960s and 1970s some provinces and territories changed their involuntary admission criteria
and introduced rights to refuse treatment. These changes closely resembled US models but did not include
court involvement.34 In contrast to the US system, the judicial element was removed in Canadian jurisdictions,
with the exception of Quebec. For example, the British Columbia Mental Health Act, 1964 introduced
voluntary hospitalization provisions and removed the requirement for a judge to authorize the admission.
This strengthened a medical rather than judicial approach to involuntary hospitalization.
Since the 1970s, considerable differences among Canadian jurisdictions developed with regard to whether or
not they adopted provisions similar to those in the US. In fact, in 1979 Ontario was the first Canadian province
to change mental health laws, replacing the need for treatment criteria with physical dangerousness criteria and
introducing the right to refuse treatment into mental health legislation.35
During the 1980s there was a strong push from the consumer-survivor and patient rights communities to fully
apply the provisions of the Charter to all mental health legislation. The Uniform Law Commission, through
a process of consultations with all provinces and territories, developed a draft “Uniform Mental Health Act ”
(UMHA) to serve as a model for all provinces to follow.36 The main goal of the UMHA was to protect persons
from dangerous behaviour caused by mental illnesses and treat it in the least restrictive manner. The UMHA
included narrow physical dangerousness criteria for involuntary admission, treatment authorization by substitute
decision makers based on previously expressed wishes, and an absence of provisions for community treatment
orders.37 Since then, many provinces have gone against the UMHA and broadened their committal criteria.38
Ontario, for example, broadened physical harm criterion to include broader harm, however at the same time
it maintained the rights safeguards proposed in the UMHA (for example, the right to refuse treatment and
the provision of rights advisors for involuntary admitted persons).
27
Over the course of time, additional legal cases tested the validity of involuntary admission and treatment for
people with mental illnesses. For instance, in the highly publicized case of Starson v. Swayze in 2003, the threshold
for asserting capacity under the HCCA was tested.39 Other cases followed suit and further pushed the medical
understanding of capacity under the purview of the legal profession. While examination of these cases is beyond
the scope of this report, it must be noted that all these legal challenges remained concerned with finding the
balance between helping individuals with mental illnesses receive treatment and protecting their individual
rights. Judging from history, this has proven to be a question without an easy answer and to this day, the
differences between provinces on the issue of involuntary admission and consent to treatment for
involuntary admissions remain pronounced.
Currently in British Columbia, Saskatchewan, Manitoba, Nova Scotia, Prince Edward Island, and
Newfoundland and Labrador, “need for treatment” is part of the involuntary admission criteria. In
British Columbia, Saskatchewan, Newfoundland and Labrador and New Brunswick, treatment is inherently
part of involuntary admission and therefore the person does not have to provide his or her consent. The
Yukon also permits non-consensual treatment for involuntary patients. It is worth noting that many of the
above stated Acts were amended in the last decade to include a greater link between involuntary admission
and treatment.
In Ontario, on the other hand, admission and treatment are viewed as two separate matters, with involuntary
admission criteria related to probable physical and mental harm and/or deterioration, and involuntary treatment
criteria related to capacity to consent. Whereas in some other provinces an individual who is involuntarily
admitted would necessarily receive treatment, in Ontario, an involuntary patient could still refuse treatment
if they were found capable of making such a decision.
28
Section four
perspectives on mental health LAW
Discourse on mental health law has been and continues to be predominately focused on involuntary admission
and treatment provisions and is often dichotomized using either a “human needs” perspective or a “civil
libertarian” perspective. The human needs perspective is based on parens patriae, a historical legal principle
that states that if a person cannot or will not make decisions in his or her own best interest or welfare, then the
state should do so, especially when significant harms are likely.40 This approach to persons with mental illnesses
is also closely aligned with the medical model, which views mental illnesses as diagnosable brain diseases that
can be effectively treated through medical interventions and related services, and which, if left untreated, can
lead to disability.41
The civil libertarian perspective, on the other hand, views mental health legislation as an often unjustifiable
intrusion by the state on freedom of the individual.42 From this perspective, individuals’ rights as prescribed
in the Charter are of the utmost importance and mental illness is often viewed as a debatable construct, rather
than a legitimate medical phenomenon.43
When historical trends are examined, it appears that the conceptual discourse on mental health law is like a
pendulum swinging between two fixed poles; individual rights on one end and medical welfare paternalism on
the other end.44 In this analogy, the individual’s rights and wellbeing are posed as mutually exclusive opposites
and as a society, we continue to struggle with the contention that one is somehow more important than the other.
These dichotomous perspectives, categorized in basic terms in the table below, are based primarily on ideological
beliefs and assumptions and are inherently divisive.
HUMAN NEEDS
CIVIL LIBERTARIAN
Medications are effective in treating symptoms
Medications are harmful and do not work
for everyone
Denial of treatment is an indication that a
person does not know how sick they are
Denial of treatment is a well-informed choice
People who are treated involuntarily will
realize they are ill and seek treatment
voluntarily in the future
People who are treated involuntarily will
respond negatively to coercion and avoid
treatment in the future
Involuntary treatment is in the patient’s
best interests
Involuntary treatment is an intrusion that
should be avoided at all costs
29
The debate between the Human Needs and Civil Libertarian models is often seen as dichotomous
and ideological. However, a more nuanced approach is both required and clinically indicated given that
this “either/or” approach does not address the diverse range of mental health conditions and experiences
that people have with their illnesses and with the mental health system. In fact, mental health issues vary
widely in nature, symptomatology and severity. By situating treatment and mental illness as single,
homogenous entities this discourse does little to address concerns postulated by supporters of either
one of these perspectives.
In addition, the shift in involuntary admission criteria between “need for treatment” and “dangerousness”
is evidence of quasi-judicial approaches to mental health legislation. Mental health legislation thereby
further presents a dichotomous understanding of how our mental health system should respond to
people with mental illnesses: either through medical means or judicial means. The following table offers
a categorization of common beliefs related to admission and treatment:
JUDICIAL
MEDICAL
Admission as detention
Admission as therapeutic
Evidence of dangerousness
Evidence of medical need
Focus on constitutional rights
Focus on need for treatment
Psychiatrists as risk assessors
Psychiatrists as clinicians
Separation between admission and treatment
Treatment naturally follows admission
Narrow criteria for civil commitment
Broader criteria for civil commitment
Rights and liberties perspective
Best interests perspective
Each of these approaches proposes a set of risks and potential consequences: use of a civil libertarian/judicial
approach may result in some people going without the benefits of treatment, while use of a human needs/
medical approach may result in some people receiving treatment that they do not want or do not need.
The juxtaposition of these approaches has led to further conflict about mental health legislation and its role in
the provision of mental health care. Because they are ideologically based these conflicting perspectives do little
to advance our mental health legislation, and instead create the context for reactionary amendments that alienate
one side or the other.
30
Section four
clinical outcomes of involuntary admission & TREATMENT
While legal and ethical issues are rooted in value-driven beliefs and principles, empirical data should shape or
at least inform public policy as well as guide principles for the application of law. As such, considering that the
current discourse centers on involuntary treatment, evaluating the effectiveness of involuntary commitment
and treatment is necessary.
In order to evaluate this effectiveness, empirical research documenting clinical outcomes of involuntary
treatment was reviewed. This evaluation was guided by three questions:
1) W
hat are the outcomes of involuntary hospitalization or its alternative, compulsory outpatient
community treatment, for people with mental illnesses?
2) What is the efficacy of treatment options available to involuntary patients?
3) What factors influence/may influence outcomes of involuntary treatment?
To answer these questions, our review† examined studies that evaluated clinical outcomes for involuntary
admission and treatment for both hospital admissions and Community Treatment Orders (CTOs). CTOs were
included in this review because (a) to be eligible for a CTO in Ontario, an individual must meet the involuntary
admission criteria and (b) although an individual must consent to the treatment plan associated with a CTO,
his or her only other alternative is involuntary hospitalization; as such, CTOs are viewed by some people as
a coercive and not voluntary form of treatment. Further, to broaden the scope of the analysis, the review
examined involuntary admission and treatment for mental illnesses in general, anorexia nervosa, schizophrenia
and other psychosis-characterized illnesses, and substance use. The studies examined were from Canada
(mostly Ontario, some from Saskatchewan), the US, Australia, Scotland, Sweden, the Netherlands, Brazil,
Europe and the UK.
Overview of Available Studies
The majority of available empirical research looked at the CTOs, with few studies examining clinical outcomes in
inpatient settings. Overall, the examined studies focused on four major issues: involuntary hospital placement
† 39 peer-reviewed articles, published between 1991 and 2010, were examined for this analysis. These articles were generated
through the following databases: PsychINFO, JSTOR, OVID, PubMed and ProQuest. The analysis included quantitative and
qualitative studies. The search terms used were: {involuntar\*} OR {coerc\*} OR {compulsor\*} OR {forced} AND {admission} OR
{detention} OR {commit\*} OR {treatment} AND {psychiatr\*} OR {mental\*} AND {outcome\*} OR {result\*} OR {progno\*}
OR {effect\*} AND {outpatient\*} AND {hospital\*}. The exclusion criteria were: studies conducted in forensic settings, studies
that were not available in English, studies that looked at sex offenders as a subset of mental health system users, and studies
published prior to 1980. For a list of examined studies, please refer to Appendix A.
31
and treatment of persons with mental illnesses; compulsory outpatient treatment; attitudes towards involuntary
treatment or perceived coercion; and ethics of coercive measures in mental health care.
The literature examined demonstrated both positive and negative outcomes of involuntary treatment.
Established “positive outcomes” of involuntary treatment included: reduced future hospital admissions;
abstinence from drugs; reduction in homelessness; adherence to treatment (engagement and medication
adherence); ability to identify decompensation earlier and prevent it from escalating to a point of crisis; and
the ability to stay in the community (for CTOs). Established “negative outcomes” included: higher relapse
rates; future treatment avoidance; mistrust of the system; decreased future help-seeking behaviour; heightened
perceptions of coercion (associated with client-perceived barriers to treatment); and longer length of hospital
stays, with fewer improvements.
Methodological Issues and Inconsistencies
Overall, there was significant variation in methodologies used in the examined studies. Indeed, meta-analyses and
systemic reviews performed in this area concluded that there is great variation in the methodological quality of
studies, with the main deficits being noted in sample sizes; lack of clear follow-up time-points; and the absence
of standardized instruments used to assess clinical outcomes.45 Even non-academic reports, such as the recent
review of CTOs in Ontario, draw certain conclusions but admit that most existing literature lacks methodological
rigour.46 The objectivity of the available research was also questionable as underlying assumptions and ideological
stances of researchers on the issues of capacity, the role of law and dangerousness were rarely identified in the
examined studies. It must be noted, however, that for those studies that did indicate their stance on the above
issues, research was done from the perspective that people with mental illnesses, and especially schizophrenia,
are more dangerous than the general public, especially when non-compliant with medications. This in turn was
assumed to provide strong rationale for the utility of CTOs and other forms of involuntary treatment as a
means of decreasing “dangerousness.” 47
With regards to sampling, no randomized control group was used in any of the examined studies due to ethical
considerations. In turn, samples almost exclusively consisted of individuals under involuntary committal at the
hospitals and persons on CTOs. The comparison was often made vis-à-vis past-present prognosis of the study
participants and when a comparison group was used, it was usually “voluntary patients,” who were very rarely
matched to the sample group. This may be problematic, as the criteria used for involuntary admission mean
that voluntary and involuntary patients have very different profiles: involuntary patients, generally speaking, are
not willing to consent to admission, are exhibiting behavior that is viewed as potentially harmful, and in some
cases will have experienced “significant mental deterioration.” As such, the lack of an appropriate comparative
base significantly undermines the ability to establish the efficacy and consequences of involuntary treatment as
compared to voluntary treatment.
Likewise, most of the studies used a hypothetical threat of future dangerousness as the measure of positive
outcome (i.e. the extent that the individual could have harmed someone if not hospitalized but did not do so
because s/he was hospitalized and received treatment), a prediction that cannot be made definitively at the time
of involuntary hospitalization. In addition, because each study operated under different notions of what an
32
“involuntary patient” is, comparison between studies to establish the efficacy of involuntary treatment is
nearly impossible.
It must also be noted that the examined literature rarely considered social factors that have been shown to
significantly impact treatment outcomes, such as support networks or the experience of involuntary treatment
itself, including the use of restraints or interactions with staff. In fact, very few studies considered or identified
any confounding factors when evaluating clinical outcomes of involuntary treatment.
Overall, our review of the evidence was inconclusive. The results of studies were contradictory, with
some studies demonstrating benefits from involuntary treatment48 and others showing no improvement or
even negative outcomes.49 Further, the results of studies were difficult to compare due to the considerable
methodological variation and the absence of standardized definitions and evaluative measures.
Issues within health systems add a further complexity to our attempt to evaluate the results of the
studies, as voluntary treatment – particularly in the pre-crisis stage – is contingent on the effective match
of treatment-needs and the quality of services available to individuals, which was not significantly demonstrated or
explored within the available studies. Because many of these studies did not systemically profile the history of
each subject prior to involuntary admission, for example whether they had accessed services in the community,
whether they had previously been admitted voluntarily, or whether they had consented to treatment as a
voluntary patient and what the experience and outcomes were of such treatment, there is a significant gap
in our knowledge of the need for involuntary admission and treatment for the studied groups and whether
successful clinical outcomes could have been achieved through other means. Furthermore, because we are
unable to compare the outcomes of a hypothetical “better system” that is more client-centred, with appropriate
and accessible services and reduced stigma to voluntary treatment in our present system, it is difficult to conclude
reliably whether and when involuntary treatment is truly necessary.
The lack of clear evidence on this topic points to the need for a more rigorous study that would examine
some of these questions.
33
Section SIX
current state of affairs
Based on the above review, there are three factors that deserve additional consideration when attempting to
understand mental health law: the purpose of mental health legislation; our understanding of capacity; and
the ability to predict dangerousness.
Purpose of Mental Health Legislation
Mental health legislation, and in particular, the Mental Health Act, is a misnomer. While many assume
that this legislation covers all mental health services and supports and ensures access to these, in reality,
this statute applies only to mental health services provided in hospitals and psychiatric facilities. With regards
to community-based treatment and care, the MHA is applicable only for cases of outpatient involuntary
commitment under the CTOs. The fact that the MHA is focused on hospitals and that in actuality, care is
primarily delivered in the community, renders the current legislation incongruent with the realities of the
mental health system in Ontario.
Indeed, most of the provisions under this MHA address involuntary admission for a particular group of people
deemed somehow different from other users of the health system. In identifying and providing for the separate
care and treatment of a particular group of ill people, mental health legislation in many ways segregates and
stigmatizes people with mental illnesses, their families, and their health care providers but without necessarily
providing any counter-balancing benefits in the form of, for example, larger fiscal allocations and better services.50
As a matter of fact, due to chronic underfunding of the community mental health sector and the subsequent
pervasive lack of access to services and supports across the province, many people with mental illnesses are not
able to access treatment until they are in a crisis. Evidence from the field suggests that the reduction in psychiatric
hospital beds across Ontario in response to a shift to community care – a sector that is likewise underfunded – has
created a situation where there are only enough beds available for people admitted involuntarily. The effect of
simultaneously under-resourcing the community sector and limiting access to acute care has led to an over-reliance
on emergency services and the creation of a crisis-driven mental health system. This system is reinforced by the
current mental health legislation which is focused on hospitals as the main context for the provision of treatment,
and where involuntary admission and treatment remain such a large focus.
Understanding Capacity
As mentioned earlier, the current capacity test evaluates one’s ability to make decisions and appreciate their
consequences. As a result, an individual may be found capable while still making decisions that are viewed by
others not to be in his or her best interests. This can be perplexing for caregivers, who may view a decision
to refuse treatment that could be medically beneficial as a “lack of insight,” thereby reducing the individual’s
capacity to make treatment decisions. This is particularly the case for individuals with psychotic illnesses, whose
35
differing views of reality – a­ result of delusions and/or hallucinations – may make those around them feel that
they are unable to make wise decisions. The current capacity test, therefore, is seen by some to be a barrier to
accessing treatment.
Others, however, are more concerned with people being erroneously found incapable. The case of Starson vs.
Swayze is an example of the differing viewpoints on this topic. While some argued that Scott Starson’s right to
make his own treatment decisions resulted in unjust mental deterioration, the verdict of this case was seen by
many as a triumph of the right to life, liberty and security of the person. Indeed, this case solidified in case law
that the mere presence of a mental illness, including psychosis, does not in and of itself render an individual
incapable of making treatment decisions. However, the assessment of capacity and the context in which it is
typically assessed remains complex.
The goal of the current capacity criteria is to protect individuals from the abuses of the system and, in theory, it
establishes a positive obligation for medical professionals to ensure that information is presented and explained
in a manner that all individuals can understand. At the same time, there appears to be differential notions of
presumed capacity for persons with mental illnesses. Research shows that because of socially ingrained stigma
and discrimination, people with mental illnesses are often assumed to be unable to make rational decisions,
particularly if they have a diagnosis of schizophrenia or another “serious” mental illness.51
In addition, although the HCCA applies to all health care settings and people seeking health care services,
capacity predominantly comes into question for people whose primary presenting issue is a mental illness.
Individuals seeking treatment for physical ailments are not typically subject to capacity assessments to the
same extent as individuals who are seeking treatment for a mental illness. In fact, capacity to make treatment
decisions is seldom questioned for anyone seeking general health services, even though mental health may
be a concurrent issue. This may also be the case for people whose primary presenting issue is addiction.
Ability to Predict Dangerousness
Dangerousness as the criterion used for involuntary admission and treatment is questionable, at best, considering
that there is currently no ideal tool which can predict whether someone will be dangerous in the future with
100% certainty. Arguably, this may lead to increased civil commitment for people who may never commit any
violent act toward self or others. The following calculation provides an example of disproportionate rates of
false positives:
Violence is an event with a low base rate, i.e., comparatively rare, which makes overprediction inevitable.
Suppose one person out of a 1000 will kill and a 95% accurate test for predicting who would do so existed.
That would mean if 100,000 people were tested, out of the 100 who would kill, 95 would be detected. But
so too would an additional 4,905 people who would not kill be identified as potential killers. Since not even
the best psychiatrist could be expected to achieve a 95% prediction accuracy with respect to dangerousness,
the application of this standard to civil commitment resulted in casting the net far too wide.53
The current legislation may thereby be creating an environment where people with mental illnesses are detained
unnecessarily due to the inaccuracy of the testing methods. It is also important to note that in legislating
36
detention for an act that an individual “may” commit, the MHA sets a much lower legal threshold for
confinement than otherwise legally permitted in the criminal justice system. In no other circumstance other
than the possible presence of a mental illness could a person be detained for a crime they might commit. For
example, an individual could not be detained if there was reason to believe that s/he would likely commit a
theft or assault, but rather only if that offence was actually committed. In fact, in Ontario, a person accused
of a crime has far more protections built into law than a person facing civil commitment.
While in the US, one’s risk of harm is typically tested through judicial procedures before one can be involuntarily
committed, Canada’s adoption of the dangerousness criteria did not include the judicial safeguards entrenched in
the US system. Not only does this allow for detention without due process, it also puts Canadian psychiatrists in
the role of violence predictors, a function which is difficult to reconcile in the medical context. The prediction
of violence is even more complex when a harmful event has already occurred, either to the individual themselves
or to someone else. In this case, psychiatrists are under even more pressure to make an accurate prediction of
dangerousness: on one hand, a previous act of violence does not guarantee a future such act, but on the other,
discharging the individual may put him/her or others at risk.
Finally, it is also worth noting that a mental health assessment based on a prediction of dangerousness may
further contribute to stigma and discrimination associated with mental illnesses and perpetuate false conceptions
that these individuals are inherently violent and are a threat to society.54 This belief is incongruent with evidence
showing that people with mental illnesses are more likely to be victims than perpetrators of violence.55
37
Section seven
a human rights informed approach
While examining Ontario’s mental health laws, it is important to look outside of our own provincial statutes to
increase our understanding of whether the current legislation is effective at responding to the needs of people
with mental illnesses and the society at large. Since human rights play such a key role in the current discourse
on mental health law, examining international human rights and approaches can provide a foundation for
understanding Ontario’s mental health laws.
International human rights instruments as formulated by the United Nations (UN) and the World Health
Organization (WHO) create broad protections that protect important rights provided to all people, including
those with mental illnesses. Countries that sign on to these conventions have a requirement for progressive
realization through social and economic action towards their stated objectives. There are several documents that
deal directly or indirectly with people with disabilities including the Universal Declaration on Human Rights,56
the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR),57 the United Nations Principles for the Protection of Persons with Mental
Illness,59 and the United Nations Convention on Rights of Persons with Disabilities.60 The ICESCR and the
ICCPR constitute the International Bill of Human Rights. As a signatory to all of these international treaties,
there is a legitimate expectation that Canadian federal and provincial legislation will harmonize with international
norms and realize the requirements stated in these conventions.
Positive and Negative Rights
International discourse on the rights of people with mental illnesses goes beyond current arguments on
mental health law in Ontario, which as stated are largely focused on involuntary admission and treatment. In
international standards and approaches there is a progression away from reactive enactments on hospitalization,
towards proactive measures to regulate mental health care and integrate it into the general health system.
International human rights discourse is structured around the principles of entitlement, liberty, dignity and
equality and conceptualizes rights as universal, interconnected, interdependent and indivisible.61
International human rights discourse is also characterized by a strong progression to include both positive
and negative rights. Negative rights, such as civil and political rights, are easily expressed in law and require little
resource allocation. In contrast, positive rights, such as social, economic and cultural rights, are policy-driven and
are significantly more expensive to protect. A right against assault is a classic example of a negative right, while
a right to welfare assistance is a prototypical positive right.62 According to international human rights conventions,
governments have the obligation to actively enforce not only negative rights, but positive rights as well. The
following table illustrates the difference between positive and negative rights:
39
NEGATIVE RIGHTS
POSITIVE RIGHTS
Right of protection
Right of entitlement
Civil and political
Social, cultural, and political
Require little resources to enforce
Require significant resources to enforce
Legistlation-driven
Policy-driven
Entitled to non-interference
Entitled to a good or service
Enforced
Often not enforced
E.g. right to refuse treatment
E.g. right to health care
Considered a “hard” international law
Considered a “soft” international law
Positive and negative rights are overlapping and mutually reinforcing and a violation of negative rights is
also a violation of positive rights.63
Governments are often quicker to protect negative rights because this can be done more easily through the
enactment of laws and regulations, with limited fiscal and other resources. Conversely, positive rights are less
likely to be enforced because they are resource-dependent and require strong commitments from governments
on both policy and fiscal domains to assure their provision and protection. In the Canadian federal and
provincial context, strong attention has been paid to the protection of negative rights but little is noted with
respect to ensuring the positive rights of individuals. This may be partly due to governments fearing increased
litigation from citizens claiming their legislated positive rights.
Human Rights Principles in Mental Health
According to the 2005 WHO policy framework on mental health, human rights and legislation, mental health
care should be available at the community level for anyone who may need it. Procedural safeguards should be
put in place to protect against the overuse and abuse of involuntary admission and treatment and monitoring
bodies should be established to ensure that human rights are being respected in all facilities.64 At the same time,
the WHO urges the enactment of laws that “promote the rights of people with mental disabilities and empower
them to make choices about their lives, provide them with legal protections, and ensure their full participation
into the community.” 65
The WHO Resource Book on Mental Health, Human Rights and Legislation,66 encourages a community care paradigm
and respect for the dignity of people with mental illnesses and provides a guide for the formulation of mental
health laws according to human rights principles:
•Protection, promotion and improvement of the lives and mental well-being of citizens
•Protection of vulnerable citizens (including persons with mental disorders)
40
•Promotion of access to mental health care
•Promotion and protection of the rights of persons with mental disorders
•Reduction of stigma and discrimination
•Promotion of the mental health of populations.
This document further states that legislation can serve to support the recommended policy goals of:
•Establishing high-quality mental health facilities and services
•Ensuring access to quality mental health care
•Protecting human rights
•Protecting the patient’s right to treatment
•Developing procedural protections
•Integrating people with mental disorders into the community
•Promoting mental health throughout society
Likewise, the UN Convention on the Rights of Persons with Disabilities (CRPD) addresses the foundation of
human rights of non-discrimination, equality and social participation as entitlements.67 This framework invites
a re-evaluation of the broader role of law in providing the social infrastructure that enables people living with
mental illnesses to participate fully in social life. It calls for the establishment of proactive measures to ensure
that people with disabilities, including those with mental illnesses, are fully included in employment, education
and other social spheres of society.
Example from Scotland
‡
A number of European countries have adopted the above-noted approach to human rights. For example, the
Mental Health (Care and Treatment) (Scotland) Act, 2003 in Scotland obliges the government to provide services
for persons with mental illnesses and secure their availability:
25. Care and support services etc.
1) A
local authority ­—
(a) shall —
i. p
rovide, for persons who are not in hospital and who have or have had a mental disorder,
services which provide care and support; or
ii. secure the provision of such services for such persons; and
(b) may —
i. p
rovide such services for persons who are in hospital and who have or have had a mental
_______________________
‡ For more examples of legislated access to positive rights, see: Callard, F., Sartorius, N., Arboleda-Flórez, J., Bartlett, P.,
Helmchen, H., Stuart, H., Taborda, J., & Thornicroft, G. (2012). Mental Illness, Discrimination and the Law: Fighting for Social
Justice. UK: Wiley-Blackwell.
41
disorder; or
ii. secure the provision of such services for such persons.
2) Services provided by virtue of subsection (1) above shall be designed to —
(a) minimise the effect of the mental disorder on such persons; and
(b) give such persons the opportunity to lead lives which are as normal as possible.
26. Services designed to promote well-being and social development
1) A local authority —
(a) shall —
i. provide, for persons who are not in hospital and who have or have had a mental disorder,
services which are designed to promote the well-being and social development of those
persons; or
ii. secure the provision of such services for such persons; and
(b) may —
i. provide for persons who are not in hospital and who have or have had a mental disorder,
services which are designed to promote the well-being and social development of those
persons; or
ii. secure the provision of such services for such persons; and
2) S ervices provided by virtue of subsection (1) above shall include, without prejudice to the
generality of that subsection, services which provide —
(a) social, cultural and recreational activities;
(b) training for such of those persons as are over school age; and
(c)assistance for such of those persons as are over school age in obtaining
and in undertaking employment.68
In response, the Scottish government undertook a multi-pronged approach which includes a core set of
national sustainable mental health indicators, covering both mental health problems and positive mental health;
a systemic assessment of the population’s mental health;69 and, an Action Plan in which the government commits
itself to, “ensuring that appropriate services are in place, but also working through social policy and health
improvements activity to reduce the burden of mental health problems and mental illness and to promote
good mental wellbeing.” 70
While the Scottish Mental Health Act otherwise very closely resembles Ontario’s, including the provisions for
involuntary admission and treatment, the addition of equality-promoting obligations dictating parallel policy
and service agendas 71 facilitates and ensures access to needed community services, thereby rendering involuntary
admission and treatment a last resort measure. The Scottish Mental Health Act exemplifies that these goals are
indeed achievable and what is more, show great promise.
42
Section eight
relationship between law and policy
Mental health law represents an important means of re-enforcing the goals and objectives of mental health
policy and conversely, legislation can be used as a framework for policy development.72 At the same time, mental
health law can also prevent the implementation of new mental health policies by imposing requirements that
preclude or effectively prevent desired policy modifications.73 This may potentially be the case in Ontario, where
the crisis-specific legislation calls for a crisis-specific system and policies to that effect. The absence of legislated
access to mental health care and support may deter governments from modifying mental health policy to better
align with the current mental health environment.
It is also important to note that “unless there is also political will, adequate resources, appropriately functioning
institutions, community support services and well trained personnel, the best policy and legislation will be of
little significance”.74 This means provisions that ensure people seeking help can access it when they want it, in
the modality that is best suited to their needs, and in locations that are easily accessible to them. A system that
responds to the needs of people with mental illnesses and provides good quality, compassionate care is required
for any mental health law to be effective. Increasing opportunities for people with mental illnesses to live
fulfilling lives in the community therefore requires legislation that both prevents inappropriate institutionalization
and provides appropriate facilities, services, programmes, personnel, protections and opportunities to allow
people with mental illnesses to thrive in the community.75
Legislation and policy are inter-related and as such must complement each other.76 Therefore, we can change
legislation, but the literature shows that in order for it to be effective, we must also change policy to complement
it. This requires political will and significant resource allocation.
43
conclusion
Society’s understanding of human rights and mental health has evolved and our mental health systems have
changed dramatically. In the context of these immense shifts, Canadians must ask ourselves why, despite
significant changes in knowledge and system design, the core of our conflict on mental health law has stayed
the same. The SSO’s review of this issue concludes that the current discourse on mental health legislation is
much too narrow and ideologically-driven and does not take into account internationally-emerging trends. Our
current approaches to mental health law reform lack clear empirical evidence, produce no “right” answer and
are inherently divisive.
The dichotomized and ideologically-driven discourse on mental health legislation does little to advance our laws
and only serves to swing us from one extreme to another. If we are to move forward in protecting the lives and
promoting the well-being of people with mental illnesses, and likewise all Ontarians, we must move outside
the confines of these two divisive perspectives and open our minds to a new understanding of human rights in
mental health law. Positive rights are principles that are equally important as negative rights, and must be pursued
to ensure that people get the care they need when they need it and are not forced to the point of crisis.
A critical assessment of the current criteria for involuntary admission is needed, much more than the simple
expansion of said criteria. The dangerousness criteria for involuntary admission exists not because people with
mental illnesses are more dangerous than others, and not because their dangerous behaviour can be predicted
with strong reliability, but because at a single point in time the dangerousness criteria was seen as the only way
of limiting involuntary admission and therefore protecting the rights of people with mental illnesses. Based on
the current state of affairs, however, it is clear that our reliance on involuntary admission and the criteria used
to determine who should get a hospital bed when is problematic. The solution to addressing mental illness may
therefore not be as simple as widening the net of involuntary admission. Rather the level and quality of care we
aim to provide requires an in-depth analysis, coupled with a discussion of how we will achieve these goals.
Indeed, involuntary admission and treatment is not the sole solution to protecting people with mental illnesses or
those around them, and mental health legislation that focuses on just this one aspect of care does a disservice to
all Ontarians. The vast majority of people who are involuntarily admitted to hospital experience months or even
years of barriers related to their mental health leading up to their admission. Rather than focus our attention on
addressing people when they have reached their peak crisis stage, we have a responsibility to think about how
we can best use our laws and policies proactively to better serve individuals in the community and prevent them
from requiring emergency inpatient care in the first place.
Complex problems do not have simple solutions. Thus, any review of mental health law has a responsibility not
to make the simplest, most reactive changes but rather to take into account the complexity of mental health and
the system in which it operates. Legislators and policy-makers must be willing to provide the right of access to
care and make the necessary fiscal contributions to back it up. Let us abandon the pendulum that has only served
to move us from one extreme to another and seize the opportunity to take a big step forward in supporting the
health and well-being of Ontarians with mental illnesses and those around them.
45
In summary, our examination of this topic unequivocally shows that:
1. C
urrent approaches to mental health law reform lack clear empirical evidence, produce no “right”
answer and are inherently divisive;
2. P
ositive rights are important and must be pursued to ensure that people can access care they need
when they need it, and not only at a point of crisis;
3. W
idening the net on involuntary admission is not the solution to addressing mental illness and this
topic requires an in-depth analysis of the level and quality of care we aim to provide and how we will
achieve this;
4. W
e have a responsibility to think about how we can use our current laws and policies proactively to better
serve people in the community and prevent the need for use of emergency inpatient care in first place;
5. L
egislators and policy-makers must provide the right access to care, with necessary fiscal contributions,
to back it up.
Moving Forward
To ensure that the issues examined in this report are further addressed, and thoroughly explored, the
Schizophrenia Society of Ontario will work with representatives from diverse sectors, professions and
backgrounds and experiences to continue the examination of this complex, but highly important topic.
It is our hope that through open dialogue we can continue to move forward with truly improving the
outcomes for all people, stakeholders and decision-makers affected by mental health and mental illnesses.
46
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49
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50
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51
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28. Isaac, R. J., & Brakel, S. J. (1992).
29. Ibid.
30. Ibid.
31. Ibid.
32. Gray, J., Shone, M. A., & Liddle, P. F. (2008). Canadian mental health law and policy.
33. Ibid.
34. Isaac, R. J., & Brakel, S. J. (1992).
35. Gray, J., Shone, M. A., & Liddle, P. F. (2008). Canadian mental health law and policy.
36. Ibid.
37. Ibid.
38. Ibid.
39.Dull, M. W. (2009). Starson v. Swayze, 2003-2008: Appreciating the judicial consequences. Health Law Journal, 17,
51-79.
40. Batrol, C. R. (1981). Parens Patriae: Poltergeist of mental health law. Law and Policy Quarterly, 3(2), 191-207.
41. Kaiser, H. A. (2009).
42. Gray, J., Shone, M. A., & Liddle, P. F. (2008). Canadian mental health law and policy.
43. Ibid.
44. Weller, P. (2010).
45.Kallert, T. W., Glöckner, M., & Schutzwohl, M. (2008). Involuntary vs. voluntary hospital admission: A systematic
literature review on outcome diversity. European Archives of Psychiatry and Clinical Neuroscience, 258, 195-209.
46. R.A. Malatest & Associates Ltd. (2012). Legislated Review of Community Treatment Orders.
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what are the outcomes? Canadian Journal of Psychiatry, 42, 70-76.
54
48. For example: Geller, J., Grudzinskas Jr., A. J., McDermeit, M., Fisher, W. H., & Lawlor, T. (1998). The efficacy of
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cases of severe mental illness: A follow-up study. Journal of Mental Health, 13 (2), 197-209.
49. F
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51. World Health Organization. (2005). WHO resource book on mental health, human rights and legislation.
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58. Ibid.
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61. Weller, P. (2010).
62. Narveson, J. (2001). The Libertarian Idea. Peterborough, Ontario: Broadview.
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55
66. W
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67. U
nited Nations. (2006). Convention on the Rights of Persons with Disabilities. Available from
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68. M
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69. Kaiser, H. A. (2009).
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73. Ibid.
74. Ibid, p. 3.
75. Ibid.
76. World Health Organization. (2005). WHO resource book on mental health, human rights and legislation.
56
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