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Involuntary Treatment of Psychiatric Patients Not Unconstitutional Says Ontario Superior Court of Justice

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The so-called psychiatric survivors will not be happy but Justice Edward Belobaba, on Sept 12, 2013, dismissed their Constitutional Challenge to the Expanded Civil Committal Criteria and Community Treatment Orders (CTO's) added to the Ontario Mental Health Act in 2000.

The details of the judges decision make for some fascinating reading and I would encourage all to read it. What he has provided in his reasons for upholding the law is to demonstrate the need for it.

The applicant, Karlene Thompson and the Empowerment Council Systemic Advocates in Addictions and Mental Health claimed that the new provisions infringe sections 7, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms.

The new rules, their lawyers said, subjected a new class of persons, at no risk of causing serious bodily harm to themselves or others or serious physical impairment of their person, to involuntary psychiatric hospitalization. The law also established CTOs to force psychiatric treatment in the community upon all who meet the expanded involuntary hospitalization criteria.

The new legislation allows the doctor to admit someone as an involuntary patient under these circumstances:

  • 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 another, or substantial mental or physical deterioration, or serious physical impairment of the person;
  • has shown clinical improvement as a result of the past treatment;
  • is suffering from the same or a similar mental disorder for which he or she received treatment;
  • is likely to cause serious bodily harm to himself or herself or another person, or suffer substantial mental or physical deterioration or serious physical impairment;
  • 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 (SDM) has been obtained; and
  • is not suitable for admission or continuation as an informal or voluntary patient.

Justice Belobaba rejected their application based on three principles of fundamental justice as set out by the Supreme Court of Canada -- legislation cannot be overbroad; it cannot be arbitrary and it cannot be grossly disproportionate to the state interest that the legislation seeks to protect and he found that none of those principles were violated.

And his review of Ms Thompson's medical history and that of a second person, Amy Ness, who provided a supporting affidavit, clearly demonstrates the need for such legislation in my opinion.

Ms. Thompson is a 59-year-old university-educated former teacher who was first diagnosed with schizophrenia in 1973. From then to 2000, she had 13 hospitalizations, treatment with antipsychotic medications based on her substitute decision makers consent (her father), stabilization and discharge. She would then go off medication and deteriorate resulting in further hospitalizations.

In December 2000, she was taken to the emergency where she was described as being unable to care for herself. She had been urinating and defecating into a garbage bags which she kept in her room. She was involuntarily admitted, treated, improved and then released into supportive housing on a CTO in December 2001.

The justice stated that "when she did not receive her outpatient anti-psychotic medication injections, her mental state declined" but "when Ms. Thompson was taking anti-psychotic medication, she had appropriate and organized thought content, did not express hallucinations or delusions and engaged with the CTO Team. While not in complete remission, her psychotic symptoms were considerably reduced."

In December 2003, when her CTO expired and as she refused medication, her treatment team decided to not renew it but see how she did with just regular case management only.

She did not do well.

By June 2004, she had delusions that her roommate was smearing feces in the apartment and she was spending hours at a time in the only washroom in her unit. This impacted the other residents. Her father, the psychiatrist, the CTO Team and the housing staff became very concerned about her deteriorating mental status and how her resulting behaviour could lead to the loss of her housing or readmission to hospital. 

Attempts to put her back on a CTO lead to court challenges by her and she left Canada in November 2006 and returned to her county of birth, Jamaica, where she was hospitalized and treated with anti-psychotics. She returned to Toronto in April 2007 and was again found incapable and admitted. In August, she left Canada and has never returned. Despite that, the case continued with the Empowerment Council granted standing as a public interest litigant.

The court was also provided with an affidavit from 40 year old Amy Ness -- also university-educated who self-identifies as a survivor of psychiatry. She was diagnosed with schizophrenia in 2002 and, as of July 2011, had been on a CTO for over two years. Ms. Ness believes that she has been unfairly diagnosed, and that her past mental deterioration has resulted from anger, stress, coffee addiction and previous treatment in psychiatric settings. 

Her medical history is also very informative. In 2004, she was involuntarily committed for showing violent behaviour. In 2007, while hospitalized, Ms. Ness kicked her mother in the back and hit her repeatedly. Then, in 2009, Ms. Ness grabbed a large kitchen knife and marched upstairs toward her mother after discovering a magazine about schizophrenia. In another incident, Ms. Ness kicked and punched the emergency department psychiatrist. By the time she was given a CTO in 2009, she had five hospitalizations.

Mr Justice Belobaba stated:

Ms. Ness' community treatment plan includes monthly appointments with her psychiatrist, meeting with her case manager every three weeks, and orally taking a low dose of antipsychotic medication.  Since being placed on a CTO, Ms. Ness has not been admitted to a psychiatric facility, either voluntarily or involuntarily.  Ms. Ness has maintained her housing. She volunteers with community organizations, has a job, and takes yoga and acting classes.  While she believes that the CTO is restrictive of her "liberty and autonomy" and is "an attack on [her] personal dignity," she prefers the CTO to involuntary hospitalization.

From my point of view, the CTO has worked and has mostly improved her quality of life.

However, while upholding the constitutional validity of the expanded legislation, Mr Justice Bolobaba did comment that the appellants have provided a compelling case for government review of the existing legislation and of coercive psychiatry. I don't agree with the learned judge but I will address that issue later in an expanded version of what I wrote in a 2011 post called Dying With Your Rights Intact.