Amendments to the Canadian Mental Health Act found not to breach the right to liberty and security of the person

Thompson and Empowerment Council v Ontario, 2013 ONSC 5392 (12 September 2013)

Summary

The Ontario Superior Court of Justice has ruled that legislation introducing a community treatment order regime and expanding the circumstances in which a person with a mental illness can be involuntarily detained, submitted to a psychiatric assessment and admitted to a psychiatric facility, do not breach the Canadian Charter of Human Rights and Freedoms.

Facts

The Canadian Mental Health Act, R.S.O. 1990, confers rights and obligations on physicians in relation to mental health patients. Under the MHA, a physician can apply for a patient to undergo a psychiatric assessment in defined circumstances. Upon an approved application, the patient can be involuntarily detained in a psychiatric facility where he or she may be restrained, observed and examined for up to 72 hours. The MHA also defines circumstances where a physician is required to involuntarily admit a patient to a psychiatric facility. In both cases, the physician must be satisfied that the patient meets certain criteria set out in the MHA.

The jury at the inquest into the death of Brian Smith, a well-known radio broadcaster, called for changes to be made to the MHA following his random killing by a person who was suffering from untreated schizophrenia. The person who killed Mr Smith said that he heard voices emanating from the broadcast towers that compelled him to randomly shoot and kill Mr Smith in 1995. 

Brian's Law (Mental Health Legislative Reform), 2000, S.O. 2000 was passed by the provincial legislature in response to the jury's recommendation. Brian's Law amended the MHA by:

• expanding the Criteria for an assessment of whether the patient is likely to cause serious bodily harm to himself or herself or to another person to include situations where the patient is likely to suffer substantial mental deterioration (“Criteria”); and
• introducing a new regime of community treatment orders, the purpose of which was "to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility" (“CTO provisions”).

Karlene Thompson, a patient previously diagnosed with schizophrenia, and Empowerment Council, an organisation that advocates for the rights of mental health patients, applied to the Court for a declaration that the expanded Criteria and CTO provisions inserted into the MHA by Brian's Law infringed the Charter and, in particular, infringed the right to life, liberty and security of person.

Section 7 of the Charter provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". The applicants argued that Brian's Law breached section 7 of the Charter by:

• subjecting a new class of persons, at no risk to bodily harm to themselves or others or serious physical impairment to their person, to involuntary hospitalisation; and
• forcing psychiatric treatment upon all those who met the Criteria through the CTO provisions.

The key issue for the Court to determine was the purpose for which Brian’s Law had been enacted. Specifically, the court was required to consider whether Brian's Law was enacted solely for public safety reasons, that is, to provide broader institutional parameters for dealing with those who are acutely unwell and who pose a danger to themselves or others, or whether it was also enacted to provide an improved treatment regime for all persons with seriously mentally illness. If Brian's Law was enacted solely or even primarily for public safety reasons, it would be in breach of the Charter and therefore unconstitutional.

Decision

Assuming that the right to liberty and/or security of the person was infringed by the Criteria and CTO provisions, Justice Belobaba conducted a proportionality assessment to decide whether the limitation of the right was lawful. Under Canadian law, the infringements would breach the principles of fundamental justice if Brian's Law was overbroad, arbitrary or grossly disproportionate to the state interest that it sought to protect. Answering these questions required an analysis of the purpose of Brian's Law.

His Honour held that the objectives of Brian's Law were to provide improved treatment to persons with mental illness in addition to fulfilling a public safety purpose. In relation to the Criteria, his Honour noted that physicians were required to look at a patient's previous treatment, clinical improvement, substantial mental deterioration and capacity to consent. In relation to the CTO provisions, his Honour found that the legislative objective was to provide a community-based treatment plan for what he described as "revolving door" patients who fell within the Criteria. 

Justice Belobaba then analysed whether the Criteria and CTO provisions were overbroad, arbitrary or grossly disproportionate to improving the treatment of mentally ill persons.  His Honour found that:

• The Criteria were not arbitrary as they were applied by trained medical professionals to a specified group on an individual basis.
• The CTO provisions were not arbitrary as they were tailored to the individual's circumstances.
• The CTO provisions were not overbroad because they provided a comprehensive plan of community-based treatment that was less restrictive than detention in a psychiatric facility. His Honour took into account evidence before the Court that there was a group of persons with mental illness who responded to treatment while in hospital but who, on a repeated basis, would stop taking medication after discharge, relapse and experience substantial mental and physical deterioration, and be readmitted to hospital.
• The CTO provisions contained procedural protections in terms of review, rights advice and consent.

His Honour concluded that Brian's Law was not overbroad, arbitrary or grossly disproportionate. Accordingly, it was not in breach of the Charter and was not unconstitutional.

Commentary

Laws authorising involuntary psychiatric treatment are inherently restrictive. They authorise the deprivation of liberty and of the personal autonomy to consent or refuse treatments that can, at times, be highly invasive.

This case is an example of how principles of proportionality may be applied to balance these rights to liberty and security against other legitimate rights and interests. The case also highlights the procedural safeguards, including individual assessments on a case-by-case basis, that are necessary to striking a justifiable balance between these competing ends and to uphold the rights of mental health patients. 

This case also highlights the medical and scientific debate concerning the effectiveness of modern antipsychotic medications and the need for a coercive community treatment regime. Justice Belobaba acknowledged the controversy in this area but concluded that it did not speak to the constitutionality of Brian's Law. Given the considerable disagreement in the mental health profession and the conflicting literature about the effectiveness of some modern psychiatric practices in the treatment of serious mental illness, his Honour considered that the impact and effectiveness of Brian's Law was a matter to be reviewed by the legislature. 

A copy of this decision is available at:
http://canlii.ca/en/on/onsc/doc/2013/2013onsc5392/2013onsc5392.html 

Emily Bowly is a lawyer at Lander and Rogers.