A person suffering: On danger and care in mental health law-Reference-Cited by-同舟云学术

A person suffering: On danger and care in mental health law

Published:2023-10-01 Issue:4 Volume:73 Page:381-425
ISSN:0042-0220
Container-title:University of Toronto Law Journal
language:en
Short-container-title:University of Toronto Law Journal

Author:

Drassinower Abraham¹

Affiliation:

1. Faculty of Law, University of Toronto, Canada

Abstract

The law of mental health authorizes involuntary detention in a psychiatric facility, in the absence of wrongdoing, of competent persons suffering from mental disorder likely to result in harm. Some jurisdictions are said to justify detention exclusively on the basis of danger prevention alone, thus predicating any ensuing treatment on the detainee’s categorical dignitary right to refuse treatment even while detained. Other jurisdictions are said to justify detention also on the basis of the detainee’s need of treatment, thus rendering the authorization to detain as a concomitant authorization to apply compulsory treatment. This article argues that ‘dangerousness’ is conceptually insufficient to justify detention in a psychiatric facility. If danger prevention per se were the only purpose of detention, then a psychiatric facility could perhaps be viewed as a permissible, but certainly not as the necessary, locus of authorized detention. Two propositions follow from this observation. The first is that need of treatment, in addition to danger prevention, must be a criterion of mental health law detention. The article formulates this proposition through a detailed reading of the detention provision in the Ontario (widely regarded as a ‘dangerousness’ jurisdiction) Mental Health Act and relevant case law. The second proposition is that, as much as the right to refuse treatment, regular and ongoing access to treatment is, therefore, a necessary condition of the justifiability, if any, of mental health law detention. The article develops this proposition through analysis of recent Ontario case law on the constitutionality of mental health law detention. The upshot is that failure to offer treatment is as inconsistent with constitutionally recognized liberty interests as the imposition of treatment in the absence of consent. By way of conclusion, the article focuses on what might be called the turn to criminal law to elaborate and affirm, by analogy, the rights of mental health law detainees. The article suggests that, while helpful, the turn to criminal law, because it brings into relief the dimension of danger to others, may also obscure the specific conceptual core of mental health law addressing danger to self.

Publisher

University of Toronto Press Inc. (UTPress)

Subject

Law,Sociology and Political Science

Link

https://utpjournals.press/doi/pdf/10.3138/utlj-2022-0043

Reference133 articles.

1. See John E Gray et al, ‘Clinically Significant Differences among Canadian Mental Health Acts: 2016’ (2016) 61:4 Canadian Journal of Psychiatry 222 at 223 [Gray et al, ‘Clinically Significant Differences’]. See also E.C. Fistein et al, ‘A Comparison of Mental Health Legislation from Diverse Commonwealth Jurisdictions’ (2009) 32 Intl J L & Psychiatry 147; Thomas W Kallert, Joanna Rymaszewska & Francisco Torres-Gonzales, ‘Differences of Legal Regulations Concerning Involuntary Psychiatric Hospitalization in Twelve European Countries: Implications for Clinical Practice’ (2007) 6:2 International Journal of Forensic Mental Health 197; Paul S Appelbaum, ‘Almost a Revolution: An International Perspective on the Law of Involuntary Commitment’ (1997) 25:2 Journal of American Psychiatry Law 135.

2. SeeMental Health Act, RSBC 1996, c 288, s 8 [BCMHA]. See also Gray et al, ‘Clinically Significant Differences,’ supra note 1 at 224.

3. SeeHealth Care Consent Act, SO 1996, c 2, Schedule A, s 10(1) [HCCA]. See also Gray et al, ‘Clinically Significant Differences,’ supra note 1 at 224.

4. The major case isStarson v Swayze, 2003 SCC 32 at para 75 [Starson] (‘[t]he right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy’). For commentary arguing that the implications ofStarsonneed not reach beyond Ontario, see John E Gray & Richard L O’Reilly, ‘Supreme Court of Canada’s “Beautiful Mind” Case’ (2009) 32 Intl J L & Psychiatry 315 [Gray & O’Reilly, ‘Beautiful Mind Case’]. For a comparison of Ontario and British Columbia from the point of view of the right to refuse treatment as aCharterright, see Simon N Verdun & Michelle S Lawrence, ‘The Charter Right to Refuse Psychiatric Treatment: A Comparative Analysis of the Laws of Ontario and British Columbia Concerning the Right of Mental-Health Patients to Refuse Psychiatric Treatment’ (2003) 46 UBC L Rev 489 [Verdun & Lawrence, ‘Charter Right’].Canadian Charter of Rights and Freedoms,Part 1 of theConstitution Act, 1982,being Schedule B to theCanada Act 1982(UK), 1982, c 11 [Charter]. For brief discussion of the tension between ‘treatment’ and ‘dangerousness’ views of involuntary psychiatric hospital admission, see Right Honourable Beverly McLachlin, Chief Justice of Canada, ‘Medicine and the Law: The Challenge of Mental Illness’ (2004 Honourable Mr Justice Michael O’Byrne/AHFMR Lecture on Law, Medicine and Ethics, delivered at the University of Alberta and University of Calgary, 17 and 18 February 2005), online: For overviews of the issues involved, see Jennifer A Chandler, ‘Mental Health and Disability in Canadian Law’ in Jennifer A Chandler & Colleen M Flood, eds,Law and Mind: Mental Health Law and Policy in Canada(New York: LexisNexis, 2016) 1 [Chandler & Flood,Law and Mind]; Sophie Nunnelley, ‘Involuntary Hospitalization and Treatment: Themes and Controversies’ in Chandler & Flood,Law and Mind, ibid, 113 [Nunnelley, ‘Involuntary Hospitalization’]; Sheila Wildeman, ‘Consent to Psychiatric Treatment: From Insight (into Illness) to Incite (a Riot)’ in Chandler & Flood,Law and Mind, ibid, 81 [Wildeman, ‘Consent to Psychiatric Treatment’]. For a view that compulsory medication is permissible in the first, but not subsequent, instances of involuntary admission, see Elyn R Saks,Refusing Care: Forced Treatment and the Right of the Mentally Ill(Chicago: University of Chicago Press, 2002) at 89.

5. Jean-Jacques Rousseau,Rousseau: The Social Contract and Other Later Political Writings, translated by Victor Gourevitch (Cambridge, UK: Cambridge University Press, 2019) at 43, 55. Of course, I evoke in this way key conceptual features of the BC and Ontario regimes respectively. It goes without saying that, empirically speaking, it is true neither that treatment guarantees release, as not all treatment is successful, nor that treatment refusal guarantees continued detention, as likelihood of harm may subside spontaneously, or the detainee may eventually be found incapable of consenting to treatment and successfully treated based on substitute decision-maker authorization. For discussion of the tensions between the dense lived experience of psychiatric detention and its juridical form, see e.g. C Tess Sheldon, Karen R Spector & Mercedes Perez, ‘Re-Centering Equality: The Interplay between Sections 7 and 15 of the Charter in Challenges to Psychiatric Detention’ (2016) 35:2 NJCL 193 [Sheldon, Spector & Perez, ‘Re-Centering Equality’].