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Earlier discussion

Mental health and the law

Continued from Page 2

Jeanette Castello from United States:I've read many of the articles from The Globe and Mail on mental illness but have not seen any mention of your outpatient commitment laws in Canada, only information about involuntary inpatient commitments in hospitals. In my state, Pennsylvania, we are advocating for changes to our Mental Health Procedures Act that would allow timely assisted outpatient treatment (AOT) for an individual with a severe mental illnesses who lacks the insight to seek and remain in treatment. We are interested in passing a law similar to Kendra's Law in New York as described at which would provide court-ordered outpatient treatment to someone with a history of hospitalizations or incarcerations or violence.

When someone is released from a hospital in Canada, are there any laws or policies that would provide mandated follow-up treatment by a mental health provider or agency and that would require the person with a diagnosed mental illness who is released from the hospital to remain in treatment, including medications if prescribed?

Kendra's Law, requires an initial six-month period of time for someone on this type of court-ordered treatment with a follow-up evaluation which may result in an additional one year. As the statistics on their Office of Mental Health web site show, this has shown a major reduction in homelessness, hospitalizations, and incarcerations. The United States also has a major problem due to a reduction in the number of psychiatric hospital beds, as shown in this study from the Treatment Advocacy Center It appears that we face similar problems and that part of the solutions should be increasing the number of psychiatric hospital beds needed for inpatient treatment as well as a meaningful assisted outpatient treatment law for follow-up treatment. Thank you for answering my question on AOT.

John Gray: In most Canadian provinces we now have Assisted Outpatient Treatment, somewhat similar to Kendra's Law in New York State. That law has been very successful in reducing rehospitalization, victimization, criminalization and violence (see web site above).

Saskatchewan, Ontario, Nova Scotia and Newfoundland and Labrador and Alberta (not yet in effect) have Community Treatment Orders where a person must follow a treatment plan in the community. In order to qualify for a CTO a person must have previous hospitalizations and this limits them for first episode people. BC and Manitoba have similar mechanisms with leave from hospital. These provisions have strict admission and review procedures.

Brenda Mathieson from Canada: Dr. Gray, I would be interested to know what charitable bodies, political forces, or individuals are working on changing the law and what I can do as an individual to lend my support?

John Gray: Provincial schizophrenia societies (see their websites) have been the driving force in many provinces for law reform. BC, Ontario, Alberta, and Nova Scotia Schizophrenia Societies in particular come to mind. This is to be expected because schizophrenia and psychotic disorders are by far the majority diagnosis of people needing involuntary services. And this is because a common symptom of these brain illness is lack of insight where people do not realize they are ill and will not therefore (logically from their perspective) agree to voluntary treatment. The only alternative is abandonment with the consequent harms to the person and possibly others.

Some mental health and legal organizations have strongly opposed these changes in the law to make treatment more accessible usually on the grounds of "civil rights." There is no particular political party identified with this issue but most are interested. Organizations such as the Canadian Psychiatric Association, Coalition for Appropriate Treatment and some police organizations as well as many individuals are interested.

annick aubert from toronto: How can we enforce the right to treatment on those who do not think they are ill?

John Gray: If the person has been admitted as an involuntary inpatient, treatment can be enforced in most cases. In British Columbia, Saskatchewan and Newfoundland and Labrador, for example, the doctor or someone from the hospital authorizes the treatment. Then the person is required to take the treatment.

In some other provinces (e.g. Ontario) the person who is an involuntary in-patient, who was admitted without their consent, must first of all be examined to see if they are capable of making a treatment decision. If they are they can refuse treatment and nothing can be done. This of course prolongs their detention because without treatment it is unlikely they will be released. Professor Starson, for example, was in hospital for 7 years because he was found to be capable and refused.

In Ontario and similar provinces if the person is found to be incapable of consenting to treatment a substitute decision maker, usually a relative, make the decision. Usually that decision is to treat and the person must accept the treatment. However, if the person was apparently competent and said they did not want treatment appropriate to those circumstances then the relative must refuse even though they know it is the right thing and even though the person may harm themselves or others. The relative can have this reviewed by the Consent and Capacity Board on narrow grounds.

Scott McAnsh from Edmonton: Given the behavioural basis of psychiatric diagnoses, what someone says and does serves a dual purpose in psychiatry: determining the existence of a mental illness and determining the individual's ability to reject the recommended treatment for that illness, or their capacity. You have endorsed a capacity criteria for committal in the past. Do you find it problematic at all that the willingness of an individual to internalize a professional's advice can be a part of the committal process? Can the inability to agree with a psychiatrist, or anosognosia, really be a fair way to determine who should be deprived of their liberty?

John Gray: Saskatchewan, Nova Scotia and Newfoundland and Labrador now have an added committal criterion that the person lacks the capacity to make an admission or treatment decision. You will note that this is in addition to having to meet the criteria of being mentally disordered, likely to harm self or others or deterioration and in need of psychiatric treatment. Thus just having anosognosia is not sufficient.

The Supreme Court of Canada has made it very clear that not having capacity does not mean that you disagree with your psychiatrist nor that you admit you have a specific diagnosis. However, the idea of having to be incapable in order to be admitted has the advantage of not having capable people who are admitted without their consent, refusing treatment. This leads to lengthened detention and loss of liberty and turns hospital into jails since they cannot treat, only detain people.

Sonya from London: Hello Dr. Gray: One of my young adult nephews suffers from diagnosed Aspergers Spectrum Disorder, depression and anxiety. Over a year ago, he was charged with criminal harassment, threatened bodily harm, and failure to comply with recognizance. He was not considered appropriate for being heard in a mental diversion court, despite continued efforts by his family. Subsequently, he was held in a detention centre for several months as a result of many hearing delays. Little to no appropriate mental health treatment was available , but was isolated for his protection from other inmates. He spoke of loneliness, despair and suicide. After a hard fought battle he was admitted to a mental health facility for a court ordered assessment to determine criminal responsibility. The completed report clearly states that he suffers from impairment in social interaction, difficulty with impulse control and aberrant conduct . Yet, he is not considered not criminally responsible. Recommendations made included; treatment of psychiatric care to avoid symptom exacerbation, and a highly structured living arrangement with regimented routines and close supervision to lessen reoffence was stated. Sadly, the lack of mental health resources, and long waiting lists (years) for appropriate housing to sustain managed recovery are not available. His parents continue to press for hearing at a mental diversion court while he is out on bail and awaiting trial. He is anorexic and depressed, and lives in a shelter. His family suffers from extreme emotional distress, financial constraints and social stigma . He cannot be involuntarily committed, as he is an adult, and often changes his mind about needing treatment.

1. Is mental health diversion court of law recommended?

2. Are there any educational mental health programs being instituted for all those who work in the criminal justice system? Thank You.

John Gray: I am sorry to hear of the great challenges for your nephew and your family. I'm sure your support will be appreciated.

Mental Health Courts have been an important improvement. But as Judge Schneider the presiding judge in the Toronto Mental Health Court, they are not a panacea. Indeed he argues that the regular mental health system should be greatly strengthened, so that there would be fewer people with a mental illness getting into the justice system.

The advantage of Mental Health Courts is that they have expertise and interest in the people who come to them. Although the law has not changed they use the law in creative ways so that for example, conditions on bail might be designed to help the person accept treatment. Often times waits can be shortened by having mental health staff in the court.

Regarding education programs in the criminal justice system I know that there are a number of programs for police (see note above). Given the frequency of mental health problems faced by corrections facilities staff and probation officers I believe that they would have programs in their training and on the job but I do not know for sure. The Attorney General's office may be able to shed more light.

Patricia Forsdyke from Kingston: People with serious mental illnesses roam across this nation and they, and those who love them, recognize that wherever they are, mental health legislation fails to meet their needs. In principle it should be easy to get help for someone who is extremely ill (e.g. psychotic with no insight). But, due to this lack of insight, sufferers wriggle out of treatment with the aid of lawyers. Lawyers tell me they can clearly see that a person is ill. Indeed, often they are disturbed by what they witness at a review board hearing or in court. But they say that they must follow the law! Thus, the law fails those who are most ill.

In Kingston, on too many occasions for me to count, it has taken numerous sessions before a review board gets to the point where restorative treatment can commence. The revolving door sessions, repeated many times in provincial or federal court, sometimes, but seldom, result in stabilizing treatment. And this has often been only after the person has shown that they are dangerous. True autonomy is when the brain is restored to some kind of insightful functioning.

Too often a person suffering from schizophrenia or manic depression is required to make a choice when their organ of decision making, the brain, is compromised. They are trapped by their delusions. It is always amazing to witness their ability, even when sick, to pull the wool over the eyes of the assessors.

Even when, following due process, a person ends up being approved for admission to hospital, there are TOO FEW BEDS to allow this to happen, or to allow a LONG ENOUGH stay. Inpatients are sent out long before they are really ready, because a bed has to be available for another needy person. The Mental Health Acts, particularly in ONTARIO, fail to meet the needs of those in most need, who really require it to work for them in their best interest.

John Gray I agree that true autonomy and true liberty are when the "brain is restored to some sort of insightful functioning." Where it is not possible to persuade a person who has this brain illness, likely to result in serious harm if untreated to accept treatment voluntarily the only alternative to abandonment is involuntary admission and treatment under the Mental Health Act. That is what it is for. Compulsory medication, that restores both function and liberty is the same medication taken by thousand of people voluntarily. While they have side effects the are all licensed by the Government of Canada and are largely responsible for thousands of people living in the community rather than committed to institutions for the rest of their lives before these drugs were invented.

The issue of beds is not addressed by the Mental Health Act but paradoxically broad committal criteria including preventing deterioration can free up more beds by getting people in earlier and out quicker. Similarly Committee Treatment Orders where the person is required to take treatment free up more beds because they reduce relapses.

june Conway Beeby from Kingston: What do you think is the next practical step we must take to move from understanding the problems to moving lawmakers into action on 'forced' (awful word know but we must talk frankly) restorative treatment. I've met sensitive and caring politicians who sympathize with us but they dont seem to have any influence with their 'free-will-above-all colleagues. Thanks for taking the time to write about this.

John Gray: This is a classic "law reform" issue similar to those faced by schizophrenia societies, concerned families and consumers and professionals who along with sympathetic lawyers and common sense politicians made the significant changes in Ontario, Alberta, Nova Scotia and other provinces against considerable opposition from so called rights groups and some mental health groups. I know that it unfortunately sometimes takes a tragedy for people to act as was the case in Ontario with the Brian Smith killing and the killing of a Mountie in Alberta.

Approaches like making law reform a priority for a non-profit organization, getting papers written by academics that clearly articulate the problem, legal analyses examining problems and solutions against the Charter, comparisons with other provinces that have solved the issue, linking with other organizations like psychiatrist organizations, the Coalition for Appropriate Care and Treatment etc.

Once this work has been done the power of personal contact between families and consumers with politician is critically important. People who have actually experienced the problems and the challenges will help win the day.

Patricia Forsdyke from Kingston: The face of Mary Greene tells it all ... pain, love and excruciating sadness. Treatment for her son would go a long way to lighten her heart and put her son's life back on track.

Bravo to her for courageously speaking out, though her son may be more aggressive towards her for having done so. How can he make a good decision for himself? He is trapped by his illness. While representing the Schizophrenia Society on many Committees at Queen's Park and elsewhere in the eighties and nineties, it was obvious that the Libertarians would win against necessary forced medical treatment. The pendulum would swing in a crazy direction against medical treatment. Almost all the hospital beds would be abolished and the prisons cells would replace them. The vulnerable would be exposed to street drugs, HIV, hepatitis etc; Serious mental illnesses have not changed in nature. They were the same in 1940 as today. And as for some of the old hospitals, most were infinitely better than life on the street or in the today's hostels. When a person is psychotic would they choose treatment? THEY DO NOT THINK THAT THEY ARE ILL. So why would they?

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In Breakdown, The Globe and Mail documents the enormous, unaddressed cost of mental illness to Canadian individuals, families and society. The series closes with a search for solutions.


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