IT DOESN T WORK: UNPACKING MENTAL HEALTH POLICY AND LEGISLATION

Transcription

1 IT DOESN T WORK: UNPACKING MENTAL HEALTH POLICY AND LEGISLATION APRIL 2013

2 IT DOESN T WORK: UNPACKING MENTAL HEALTH POLICY AND LEGISLATION April 2013

3 TABLE OF CONTENTS Executive Summary... Background Introduction Section One: Basic Concepts Section Two: Overview of Ontario s Current Legislation Canadian Charter of Rights and Freedoms Ontario Human Rights Code Health Care Consent Act Mental Health Act Substitute Decisions Act 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 Section Three: History of Mental Health Law Shift from Need for Treatment to Dangerousness Developments in Canadian Mental Health Legislation Post-US Reforms Section Four: Perspectives on Mental Health Law Section Five: Clinical Outcomes of Involuntary Treatment Overview of Available Studies Methodological Issues and Inconsistencies Section Six: Current State of Affairs Purpose of Mental Health Legislation Understanding Capacity Ability to Predict Dangerousness Section Seven: A Human Rights-Informed Approach Positive and Negative Rights Human Rights Principles in Mental Health Example from Scotland Section Eight: Relationship between Law and Policy Conclusion Appendix A References... 53

4 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 19 th and 20th centuries. The drivers behind many of these changes are identified along with the 7

5 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. 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. Widening 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. We 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. Legislators 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. 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. 8 9

6 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 Addictions 1 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. 11

7 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 response 4 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 * This 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. 13

8 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. 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 14 15

9 Detention 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 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. 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. 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

10 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, 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. 19

11 20 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. 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) has 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) has 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

12 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. 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. 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 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) has 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; 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. (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) given 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

13 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

14 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 Rosenhan 26 and Goffman 27 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 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)

15 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. 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 Medications are effective in treating symptoms Denial of treatment is an indication that a person does not know how sick they are People who are treated involuntarily will realize they are ill and seek treatment voluntarily in the future Involuntary treatment is in the patient s best interests CIVIL LIBERTARIAN Medications are harmful and do not work for everyone Denial of treatment is a well-informed choice People who are treated involuntarily will respond negatively to coercion and avoid treatment in the future Involuntary treatment is an intrusion that should be avoided at all costs 28 29

16 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: 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: JUDICIAL Admission as detention Evidence of dangerousness MEDICAL Admission as therapeutic Evidence of medical need 1) What 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? 30 Focus on constitutional rights Psychiatrists as risk assessors Separation between admission and treatment Narrow criteria for civil commitment Rights and liberties perspective Focus on need for treatment Psychiatrists as clinicians Treatment naturally follows admission Broader criteria for civil commitment 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. 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 For a list of examined studies, please refer to Appendix A. 31

17 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. 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 treatment 48 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. 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 33

18 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

19 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. 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 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 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 37

20 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

21 NEGATIVE RIGHTS Right of protection Civil and political Require little resources to enforce Legistlation-driven Entitled to non-interference Enforced E.g. right to refuse treatment Considered a hard international law POSITIVE RIGHTS Right of entitlement Social, cultural, and political Require significant resources to enforce Policy-driven Entitled to a good or service Often not enforced E.g. right to health care Considered a soft international law 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 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 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: 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 Care and support services etc. 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 provide care and support; or ii. secure the provision of such services for such persons; and 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: (b) may i. provide such services for persons who are in hospital and who have or have had a mental 40 Protection, promotion and improvement of the lives and mental well-being of citizens Protection of vulnerable citizens (including persons with mental disorders) 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

22 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) Services provided by virtue of subsection (1) above shall include, without prejudice to the generality of that subsection, services which provide (a) (b) (c) social, cultural and recreational activities; training for such of those persons as are over school age; and assistance for such of those persons as are over school age in obtaining and in undertaking employment. 68 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. 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

23 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