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Mental health and the law

Expert takes your questions

Globe and Mail Update

Mental-health services are in short supply, even for those who want care. But for those who refuse treatment, the situation can be dire and deadly. Many end up caught in the revolving door of the criminal justice system, their health — mental and physical — spiralling downward, Andre Picard writes in Friday's Globe and Mail.

In such cases people who care for a the person who refuses help end up in a situation that pits people's civil rights against their health and the safety of others.

There are about 60,000 admissions a year for involuntarily psychiatric care in Canada, and that doesn't include those in the criminal justice system, research by psychologist John Gray shows. Decades ago those peole were hospitalized indiscriminately and often treated in a horrific fashion.

Now, civil rights have swung to a point where involuntary hospitalization and treatment are next to impossible. Only those who pose an imminent danger to others can be held and treated, and an army of untreated people have taken to the streets or often ending up sleeping on cold slabs in prison.

"The fundamental problem is that we've deinstitutionalized the mental-health system, but we haven't deinstitutionalized mental-health law," Dr. Gray says.

Has your family struggled trying to help someone who has a mental illness? What would you like to know about mental-health laws in Canada?

We're pleased Dr. Gray will be joining us Monday at 2 p.m. ET to answer your questions about mental health and the law. Send them now and return Monday to read his answers, which will be posted below.

John Gray is the lead author of the recently published book Canadian Mental Health Law and Policy, 2nd Edition (with lawyer Margaret Shone of Edmonton and psychiatrist Peter Liddle formerly chair of Schizophrenia, University of British Columbia, published by LexisNexis).

John Gray has a PhD in psychology from the University of London, UK and a Masters from the University of New Zealand. He has worked in Saskatchewan as a clinician and executive director of that province's psychiatric hospital. For more than 20 years he was a program advisor on the British Columbia Mental Health Act while working in their Ministry of Health.

Dr. Gray has served on the boards of the Canadian Mental Health Association, in Saskatchewan and the Victoria and provincial BC Schizophrenia Societies' boards. He is a past president of the Canadian Schizophrenia Society.

Editor's Note: globeandmail.com editors will read and allow or reject each question/comment. Comments/questions may be edited for length or clarity. HTML is not allowed. We will not publish questions/comments that include personal attacks on participants in these discussions, that make false or unsubstantiated allegations, that purport to quote people or reports where the purported quote or fact cannot be easily verified, or questions/comments that include vulgar language or libellous statements. Preference will be given to readers who submit questions/comments using their full name and home town, rather than a pseudonym.

Christine Diemert, globeandmail.com: Thanks for joining us today Dr. Gray. We've got a lot of questions so let's get started.

Michael Petrunik from Ottawa: Canada's provinces and territories each have different mental health laws that can have significant implications for how persons with serious mental disorder are treated. For example, an resident of Ottawa suffering a psychotic episode and at imminent risk to harm self or others who crosses the river to Quebec will face different laws and procedures there that can have major implications for himself and his family. Can the Charter of Rights and Freedoms be invoked to deal with the issue of disparities in treatment in different provincial and territorial jurisdictions? Are there serious attempts to establish more uniform mental health provisions across Canada that could deal with such disparities?

John Gray: Mental health acts are part of provincial jurisdiction and like almost all other acts dealing with health they differ between provinces.

I do not think the Charter can be used to force uniformity in mental health acts. There can be quite different provisions, for example, on the committal criterion and as long as they meet the requirements of the Charter then they would be legal and there is no Charter mechanism to make these or other provincial jurisdiction laws the same.

There was a very serious attempt to standardize mental health acts a number of years ago. It was called the Uniform Mental Health Act and was produced after extensive discussion between the provinces. Interestingly it moved toward the Ontario model then with narrow dangerous committal criteria. Subsequently most provinces have moved away from the dangerous model to a deterioration and harm model. While there are certain advantages in standardization it can also be restrictive and retard innovations eg. Community treatment orders.

Victoria Huntley from Vancouver: I am the daughter of a mentally ill father who has recently been involved in the system but has a severe paranoia of mainstream medical system among other problems, so remains largely under-diagnosed and un-treated. He appears unwilling or unable to accept his situation, and is currently fighting an eviction notice. He is penniless and in a crisis situation.

My main concern is that I would like to protect my sister, who is mentally disabled, from his 'care'. After over a year, I was finally able to get her into a group home and out of his immediate daily care. My next goal is to remove his decision-making powers completely in favour of myself and our mother. He is not a guardian officially but rather shares this with our mother.

The main difficulties are that my father is arriving at my sister's care home at random and staff are having trouble with his behavioral outbursts. His demands (Eg to give my sister alternative meds) at bizarre times of the day, are upsetting them and causing problems for the other residents, plus I worry about the alternative health pills he is giving her. How can I remove responsibility?

What steps do we need to take, or is it enough that his medical 'condition' has been documented? Would a doctor's note suffice or do I need to pursue a legal route? The PGO won't touch this situation to date, FYI. I am debating a 3rd try, as I would prefer to have a public guardian /trustee rather than my father. What can I do too minimize any costs? Thanks in advance, Victoria

John Gray: I am sorry that I do not have the knowledge to be helpful here. I would think the PGO, the mental health unit that works with your father, the group home staff, or the family support group with you sister may have some ideas?

Greg Stroll from montreal: One thing a lot of people don't consider when they link mental illness to the law is how the law reacts as well. In my own experiences I was once denied service entirely by a police officer simply because I had a mental illness. I came first thing in the morning so there would be nobody in line and all I had asked for was simply if a certain action another entity had taken towards me was illegal or not, if so what was the name of the crime. She even knew I had no intention of filing charges, and it was just to file a complaint letter correctly. She listened to me until the point I said I was schizophrenic and said she couldn't help me. I did persist for a while but once she started litanizing for me that 'you understand you're mentally ill right?' I figured it was time to leave.

My point is that for all the talk about mentally ill people who get lost in the justice system, the root and frontliners of it which are the police officers aren't even trained to be de-stigmatized. If the justice system wants to handle mentally ill criminals differently and yet retain them under their own jurisdiction would you not agree that from the ground up they need to be educated on the subject?

John Gray: Yes the education of police officers on mental health issues is very important. Police get involved with people who may have a mental illness under the Criminal Law but they are often the first responders in a mental health crisis.

They have authority under all Mental Health Acts in Canada to apprehend a person who has an apparent mental illness and meets other criteria (usually danger) and can take them to a physician for an examination. This is can be very helpful in diverting a person from the criminal justice system, but to do this well officers need training.

Across Canada, the Canadian Chiefs of Police mental health committee, there is a great deal of interest in this training and many police forces have formal training programs. The Canadian National Committtee for Police/Mental Health Liason is a good source of information. A number have developed teams with mental health professionals to help people.

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 http://www.omh.state.ny.us/omhweb/Kendra_web/KHome.htm 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 http://www.treatmentadvocacycenter.org/index.php?option=com_content&task=view&id=81&Itemid=92 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?

John Gray: I too would like thank Mary Greene and her family for having the courage to tell their story. It should inform people and help people to change practices and the law. The law should be designed to help her son and many like him who have treatable brain illnesses. The trouble is that the troubled brain of many people with bi-polar and schizophrenia does not recognize the person is ill. Why would a logical person accept voluntary treatment if they were not ill. Mental health acts are the only alternative to abandonment.

It was said in the article featuring Mary Greene that adequate investment and commitment to the recovery model would "make it unnecessary to resort to involuntary commitment and forced treatment." No matter how good the services, some people who do not believe they are ill will not avail themselves of the services and compulsory admission and treatment will be required.

The irony is that treatment with medication, compulsory if necessary, is the only known scientific means of treating people sick enough to have been involuntarily admitted. For those who oppose compulsory treatment they are then depriving the detained person from a Charter right - liberty. Without treatment as Mr Starson's 7 years detention and Mr Sevel's 404 days in solitary confinement show, there is no liberty.

So just as a person who is psychotic is likely to refuse admission they are likely to refuse treatment. Some provinces recognize this and see that the reason for admission is to treat. If the person can't be treated the admission is for social control and not compatible with a hospital but with a jail.

Other provinces, including Ontario, allow an involuntary patient, in some circumstances, to refuse the very treatment required for their release. That is why compulsory treatment makes sense. Without treatment the problems of criminalization, homelessness, victimization become every present dangers for people with serious brain illness.

c.f. from not specified Canada writes: The mental health act in Ontario has a lot of silent, or grey areas that cause us who work in mental health, a lot of grief as we try to care for clients. For example, who is to transport the violent, agitated patient to a schedule one facility from a regular non schedule one emergency room? The act says any person may, but the ambulance doesn't do those transfers, the police say it isn't their mandate any more because it says ''any person,'' and private transport companies refuse because of violence. Am I the nurse, supposed to walk them across the city or take the city bus? That is just one of the areas that trips us up daily. When will the act be updated?

John Gray: I can certainly sympathize with the position this puts staff and patients in. However, the Ontario Mental Health Act is similar to most where "any person" may transport. Only Manitoba requires a police officer for every move. The reason "any person" is used is to cover the contingencies from relatives, staff, ambulance, police etc. The police certainly qualify as "any person."

The assumption is that the most "appropriate" person will be used although that is not stated in the Act. In practice in most provinces it is usually the ambulance. However, if the ambulance people think the situation may be dangerous, they do, and should, call on the police. Sometimes a police transport is entirely appropriate and indeed for someone else to do it where they or the patient may be injured negligence may be an issue.

I know that does not solve your problem which is solved in most communities by an agreement between the police and the local mental health centre/hospital etc. The Canadian National Police Mental Health Liaison Committee website may have some information which is relevant. There are several websites you can check: This one from CAMH, and this one from the liason committee.

Christine Diemert, globeandmail.com: Thanks for joining us today Dr. Gray.

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