Thanks to the Ontario Court of Appeal, Ontario had the opportunity to revise its entire Mental Health Act (MHA) as so many have requested and thus bring it up to the same level as other provinces. Unfortunately, they did not do that. Last December, the Court struck down two sections of the act and declared them to be in violation of the Charter but gave the province one year to make the changes.
The deadline is Dec. 23 yet the provincial government only introduced the absolute minimal changes needed to satisfy the court -- Bill 122 -- in September. Second reading was Oct. 26 and now the bill must go to committee, third reading and proclamation by Dec. 10 when the Legislature recesses for Christmas.
If the Bill is not proclaimed in time, then the province will have to release over 300 patients who are being held involuntarily because they pose a danger to themselves or others.
In P.S. v. Ontario, the court nullified those portions of the MHA that allowed for detention longer than six months. It also asserted that the goal for an involuntary patient is recovery. This was not provided to P.S. in his 19 years hospitalized nor is it provided to any of the others locked up.
In Ontario, an individual can be held because they pose a risk but that does not necessarily include treatment. They may lack the competence to decide to seek help and they pose a danger, but they can still be deemed competent to refuse treatment. They are both incompetent and involuntarily hospitalized but competent to refuse treatment.
Other than Quebec, Ontario is the only province that separates need for involuntary hospitalization with capacity to treat. In a 2013 paper called "Mental Health In Ontario, An Overview" by Gail Czukar and the law firm of Dykman Dewhirst and O'Brien LLP, the lawyers state that "patients have used their rights to refuse treatment, and have consequently been committed but untreated for long periods in psychiatric facilities."
In British Columbia, if a patient is involuntary, they are given treatment. In Alberta, the decision to treat is based on what is best for the patient. The authors state that "the review panel adjudicates on the person's best interests thereby arguably overriding the capable person's Charter rights. To date, this section appears not to have been challenged in the Alberta courts." Other provinces are similar.
It strikes many of us that it is unconscionable to lock someone up for years because they lack insight into their illness and pose a potential danger to themselves or others, but to then deny them the treatment that has the potential to make them better. The lawyers who wrote this paper above suggest some reasons for Ontario's position.
First they state: "Liberty is an interest that Ontario law staunchly defends, and it is well protected." Better to protect rights than to help someone get better which is why many psychiatrists have talked about patients dying in back alleys with their rights intact.
The second reason they suggest is that there exists "a very well-organized, well-informed, and active mental health bar that monitors and actively litigates patients' rights issues." Seemingly, the province is afraid of dissent and this perceived fear trumps justice.
One man, Paul Conway, has been locked up for 32 years with no treatment yet one psychiatrist familiar with his case told me that he would likely have been discharged after a couple of years with treatment. Is it not inhumane to deprive him of his liberty when treatment could see him free and reasonably well?
Many have been lobbying for Ontario to revise the MHA but they have not done so. One important recommendation to that effect was in the 2010 all party Select Committee on Mental Health and Addictions.
In the debates for the second reading of Bill 122, Conservative Health Critic Jeff Yurek stated that "The (select) committee acknowledged the excessive and unnecessary suffering permitted under the current legislation and expressed certainty that these harms could be avoided through legislative or policy changes that ensure that involuntary admission must also entail treatment."
France Gelinas, the NDP health critic who sat on the committee, pointed out that "out of the 23 recommendations, half of one has been acted upon."
She then added:
That was a report that was done by the Select Committee on Mental Health and Addictions. This committee was created by this Legislature. The report was tabled. It was agreed upon by all sides. It talks about what the court also talked about, that we needed to work on changing the Mental Health Act. It said that it wanted a report back to this House within the year, and nothing has been done. Yet, we have an opportunity with this act being opened to do something that we already know everybody agrees to.
Unfortunately, Ontario is unwilling to revise the MHA to improve it and help those who are truly suffering unless they are made to by the courts.
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