July 4 juillet 8:30 – 12:15
(extended session)
Room
NCDH–101
Chair:
Pierre Dalphond
, Cour supérieure du Québec
This paper will describe the model of community treatment
orders established in Ontario’s Bill 68 (Brian’s Law). It will attempt to
describe (anecdotally) the experiences of health care practitioners who work
with the new law, and (conceptually) how this model differs from others that
exist in other jurisdictions both within and without Canada.
Amendments to Ontario’s Mental Health Act and Health Care
Consent Act received third reading in the Legislature on June 23 and were
proclaimed on December 1, 2000. The amendments refined existing involuntary
status and consent provisions and added a comprehensive scheme for community
treatment orders for the most seriously mentally ill. The passage of new legislation is the
beginning of a process which must define how the spirit and intent of the
lawmakers will be
translated into administrative structures. The challenges involved in
implementing legislation range from the most practical questions about how to
deliver services to the development of accurate monitoring and evaluation
processes to assess whether the legislation is producing the results and effects
that its authors intended. This paper will examine the numerous issues which were assessed
and addressed during implementation of the amendments. Key elements to be
reviewed include: the issues and style of needed regulations; how current
regulatory processes which are a source of difficulty can be improved; the
practical impact of the legislative changes on care delivery systems; what
services and systems will experience pressures; what types of services will
offset undesirable pressures; who needs to be consulted to identify best
practices; the definition of an appropriate payment vehicle for physicians; and
the overall cost of a new system of care based on available data.
The challenges from June 23 to December 1 were both technical and human.
Developing an effective implementation plan within rigid time lines involved
managing a complex set of relationships. Internal and external stakeholders were
brought together in a constructive way, mobilizing their perspectives in a
cooperative and value-added fashion. The many important lessons learned in the
process with respect to planning structure, process and communications will be
reviewed.
Ontario’s community treatment order legislation came into
effect on December 1, 2000 and has already been the subject of challenge under
the Canadian Charter of Rights and Freedoms. This is not a suprise given the
unique and highly litigious legal climate the province enjoys in respect of
mental health matters. Ontario has a vigorous patient-side bar committed to
opposing the legislation. It is anticipated that legal challenges will continue
until such time as jurisprudence under the Act authoritatively determines how
the legislation should be applied and whether there are any constitutional
flaws. Ontario’s
community treatment order provisions are found in amendments to the Mental
Health Act and Health Care Consent Act know as Brian’s Law (Mental Health
Legislative Reform), 2000. This paper will examine how Brian’s Law addresses
the requirement that community treatment order legislation conform with the
principles in the Charter of Rights and Freedoms In particular, the paper will
examine the tension between the need to provide care and treatment for the
seriously mentally ill, while respecting individual rights. The paper will also
examine the relationship between detention under civil commitment legislation
and consent to treatment. Increasingly, the courts are turning to mental health
institutions, agencies and professionals with the expectation that they will
perform the difficult task of protecting the seriously mentally ill and others
where there is a concern about individual or public safety. One way to perform
this task is to provide care, treatment and supervision under the terms of a
community treatment order, as an alternative to detention in a psychiatric
facility. This principle is clearly articulated in the purpose section of
Ontario’s community treatment order legislation. The experience with constitutional litigation in Ontario is that
detention of the seriously mentally ill may be justified under the Charter, in
part, so that treatment may be provided. At the same time, the courts have given
constitutional protection to the notion that a mentally capable person may
express wishes about future treatment which will bind health professionals,
families and others during any future period of incapacity. Brian’s Law
attempts to address these competing and sometimes inconsistent expectations and
values and to ensure that the legislation will withstand review under the
Charter. Whether the attempts are successful will ultimately be determined by
the courts.
Bill 68, which included legislation to support community treatment orders (CTOs), was proclaimed in Ontario on December 1, 2000. This presentation uses a case-based method to examine the types of patients for whom CTOs are used in practice, the reasons for their use, the reactions of patients and their relatives to CTOs and the problems which have arisen as a result of the use of CTOs. We also examine situations, where patients subject to CTOs, have applied to the Consent and Capacity Board for a review. Finally, the presentation will outline reasons why physicians have elected not to pursue the use of CTOs inpatients who meet the legislated criteria.
In 2000, Ontario enacted legislation proclaiming significant and profound changes to its mental health system. The introduction of community treatment orders and the expansion of the civil committal criteria appeared, at least on the surface, to be unabashedly simplistic, recent and largely media driven–fuelled by several high profile Coroner’s Inquests and an increasing disquiet among health professionals and lay persons alike as to the inadequacies of the involuntary civil commitment criteria. Yet, the actual evolution of Ontario’s ultimate mental health reform was far more complex, and rooted in international as well as domestic trends towards a more societal, quasi-paternalistic, conception of mental health and well being, and away from the absolute protection of individual liberty and self-determination even at the cost of diminished quality of life and even self-destruction. Ontario, far from being revolutionary, was arguably embracing more serious, and long standing global and domestic trends in this regard. These trends will be analyzed, with particular reference to their genesis and influence in the Ontario context, and the precursors leading to Ontario’s mental health reform legislation will be assessed.
Ontario’s Provincial Government enacted Bill 68, known as Brian’s Law, effective December 1, 2000. The changes to the Mental Health Act, as amended by this Bill, are the most wide-reaching and significant changes in twenty-three years. Committal criteria are expanded to allow for the involuntary psychiatric hospitalization of persons who would not have met the “dangerousness” criteria of pre-existing legislation. Justices of the Peace, Peace Officers and physicians are given broader powers to bring about an examination which could result in the involuntary psychiatric assessment of individuals with mental disorder. The new law also introduces Community Treatment Orders (CTOs) to Ontario.
While similar statutory provisions exist in a few other provinces in Canada, there appears to have been very little judicial or tribunal consideration of the legal or constitutional issues raised by such legislative regimes. In Ontario, however, the CTO provisions of Bill 68 were immediately challenged by some subjects of such Orders. These constitutional and other legal challenges have proceeded before the Consent and Capacity Board of Ontario (the CCB), a quasi-judicial administrative tribunal. Some of the questions in the interpretation of complex new legislation are being answered. Many more remain.
In the first six months of Brian’s Law coming into force, the CCB has heard argument on the interpretation of provisions of Ontario’s CTO regime in the context of the stated purpose of the legislation to provide a least restrictive alternative to psychiatric hospitalization to subjects of such Orders, for example. What have we learned in the process about the impact of the new law on stake-holders in the system? Where do we go from here?
The author is the former Senior Vice Chair of the CCB and was the Presiding Lawyer Member in all cases heard by the Board where a CTO was under review. This paper examines the new provisions of Bill 68 in light of the decided cases to date and how the rights and obligations of physicians, substitute-decision-makers and patients will need to be clarified as the process of interpreting this complex legislation continues.
Discussants: Terry Carney , University of Sydney
Anita Szigeti , Mental Health Legal Committee, TorontoReturn to Schedule | Return to Montreal 2001 Main Page | Return to IALMH Main Page