Jemh_vol4_no2_benchmark_one_step_forward_two_steps_back.indd

One Step Forward, Two Steps Back: a Charter Analysis of s.39 of Nova
Scotia’s Involuntary Psychiatric Treatment Act
Jacquelyn Shaw BSc, MSc, LLB, LLM (cand)
Dalhousie University, Halifax, Canada
in light of disadvantages aff ecting psychiatric patients, I ask if Abstract
rmative action, under s.15(2) of the Charter, immunizing it from challenge. If not, does s.39 violate the equality Nova Scotia’s recently updated Involuntary Psychiatric guarantee of s.15(1), in its treatment of patients? Finally, I examine Treatment Act signifi cantly updated mental health law in the whether any infringement may be upheld as a policy decision province in many respects. However, s.39 of the Act deviates from this record in that it contains a clause that permits overriding the competent prior wishes of involuntarily committed psychiatric patients. This is problematic D o e s s . 3 9 d raw a d i s t i n c t i o n b a s e d o n
because it displaces established Canadian common law and a n e n u m e ra t e d o r a n a l o g o u s g r o u n d ?
legislation on advance directives for psychiatric patients but not other patients, suggesting possible discrimination A long history of exclusion, shame, fear, segregation, and The paper explores whether s.39 might survive challenge mistreatment has been associated with mental illness. Under, under s.15 of the Canadian Charter of Rights and Freedoms, s.39 patients detained involuntarily due to mental illness may be rmative action program under s.15(2) of treated with mind-altering pharmaceuticals against their express the Charter or as an overriding societal concern under s.1 wishes, made earlier, while competent. While some may claim such treatment to be benefi cent and aimed at furthering the patient’s best interests, in reality, such forced treatment seems to have more Ke y wo r d s : non-consensual treatment; treatment
in common with historical mistreatment, because it suggests that refusal; advance directive; discrimination. these patients’ wishes are not worthy of respect and that their legal rights are trivial. Th is does not seem in keeping with the concepts In 2005, Nova Scotia updated its mental health legislation of equality and human dignity central to the Charter. with the Involuntary Psychiatric Treatment Act1 (‘IPTA’), a long-awaited improvement over earlier legislation that termed Section 15(1) of the Charter states: “Every individual is equal before psychiatric patients ‘lunatics’ or ‘the insane.’2 While IPTA no longer and under the law and has the right to the equal protection and uses disrespectful language, it remains problematic in another equal benefi t of the law without discrimination and, in particular, without discrimination based on .mental or physical disability.”12 In Law v. Canada, the purpose of s.15(1) of the Charter was found IPTA’s s.39 empowers a substitute decision-maker to make treatment decisions for an involuntarily committed psychiatric .to prevent the violation of essential human dignity patient3 using patients’ prior capable informed expressed wishes, and freedom through the imposition of disadvantage, unless doing so endangers the patient’s (or others’) “physical or stereotyping, political or social prejudice, and to promote mental health or safety”, whereupon “best interests” are substituted.4 a society in which all persons enjoy equal recognition at ese words harbour radical negative eff ects: imposing treatment law as human beings or as members of Canadian society, despite capable prior wishes displaces Canada’s common law5 and equally capable and equally deserving of concern, respect legislation governing advance directives.6 Requiring only mentally but not physically ill persons7 to have medical decisions imposed upon them seems intuitively unacceptable and suggests blatant In turn, s.15(1)’s purpose is to identify discrimination (against discrimination.8 Mentally ill persons have endured a long history of discrimination, inconsistent with modern Charter values. It is disappointing to see this same dynamic within IPTA,9 one of …a distinction, whether intentional or not, but based on Canada’s most recent provincial mental health statutes.
grounds relating to personal characteristics of an individual or group, which has the eff ect of imposing burdens, is paper argues that IPTA s.39 violates the Canadian Charter of obligations or disadvantages on such individuals or groups, Rights and Freedoms’10 s.15(1) equality guarantee. First, applying not imposed on others, or which withholds or limits access the vision of substantive equality elucidated in R. v. Kapp,11 I to opportunities, benefi ts and advantages available to other explore whether s.39 creates a distinction under s.15(1). Next, 2009 Journal of Ethics in Mental Health (ISSN: 1916-2405)
IPTA s.39 satisfi es the threshold criteria for a s.15 Charter action, as it does not fi t the typical format. Usually in affi action, a legal disadvantage, lack of benefi t or exclusion is conferred and reveals evidence suggesting (a) a distinction or diff erential on a relatively privileged group (e.g., white people), to confer treatment of one group compared with another, (b) in which needed advantages on a less privileged group (e.g., Aboriginals).26 one group receives greater benefi ts, legal protection or other Section 39 confers a disadvantage on a less privileged group and advantage, without justifi cation. Section 39 permits overriding re-labels this as an ‘advantage’ to it. A similar argument failed prior wishes in involuntary psychiatric patients but not patients in R. v. Music Explosion, Ltd.,27 where a restrictive bylaw28 was without mental illness, but suff ering from physical illness.15 In claimed as a s.15(2) program “for the benefi t of the special needs both groups, patients have competent prior wishes, but in only one e Appeal Court, however, held that such a restriction was not a conferral of special benefi ts but simply a on the enumerated ground of mental disability, which creates lesser legal protection for these individuals, attracting s.15’s attention.
of psychiatric patients to make their own treatment decisions may not qualify as a ‘special ameliorative program’. Kapp also stressed I s s . 3 9 a n a m e l i o ra t i ve p r o g ra m
the importance that an ameliorative purpose be more than a “shield u n d e r s . 1 5 ( 2 ) o f t h e C h a r t e r ?
to protect a program or activity which is.discriminatory.”31 Th must be a genuine nexus between the claimed goal and the law’s form and implementation: Charter ss. 15(1) and 15 (2) must work together, to promote cient to declare that the object of a program is an overall “vision of substantive equality.”16 Upon fi nding a to help a disadvantaged group if in fact the ameliorative distinction, attention shift s to s.15(2), asking if the diff erential remedy is not directed to the cause of the disadvantage. treatment “has as its object the amelioration of conditions of There must be unity .among the elements of the program, disadvantaged individuals or groups”, allowing it to escape being [suggesting] that the remedy.is rationally related to the ruled discriminatory. “Any law, program or activity” may constitute cause of the disadvantage.23 (Emphasis added).
an ameliorative program so IPTA s.39 may qualify.
Many psychiatric patients are competent to choose their Is s.39 an ameliorative program under s.15(2) for redressing own treatment, contradicting societal myths of their global incompetence and the seeming foolishness33 of their choices. Th not violate the s.15 equality guarantee if the government can unchallenged societal myths refl ect stereotypes and stigmatization34 demonstrate that: (1) the program has an ameliorative or remedial of diff erence, aff ecting psychiatric patients’ in and beyond the purpose; and (2) the program targets a disadvantaged group ey generate disadvantages35 in employment, housing, identifi ed by the enumerated or analogous grounds.”17 Th fi nancial credit, and social participation, causing increased poverty, determining s.39’s objectives, whether they are ameliorative, and homelessness,36 addictions37 and criminalization,38 which in whether any amelioration favours disadvantaged groups.
mental healthcare left little doubt that people with mental illnesses Some may argue that s.39 has an ameliorative purpose. Th experience disadvantage. Yet the real ‘cause’ of much of this eory’ of psychiatric treatment18 claims many patients lack disadvantage is oft en not illness itself, but false, over-generalized insight and may later be grateful for treatment. Psychiatrist John stereotypes that exclude patients from the community. Th E. Gray (2000) argues that non-consensual treatment is necessary while IPTA s.39 may reduce surface diff erences between mentally to prevent greater patient suff ering, increased patient restraint ill patients and others through enforced treatment, it leaves intact or seclusion, longer detention (i.e., ‘warehousing’)19, poorer and even perpetuates underlying societal myths about people with prognoses for youth, negative impacts on staff , fellow patients mental illnesses. Since IPTA s.39 does nothing to ameliorate these and the therapeutic environment, greater costs20 and lost treatment myths--the major cause of patients’ disadvantage-- a court may opportunities due to ‘blocked beds.’21 Yet treatment refusals may be an infrequent concern hardly warranting s.39’s existence: in one study only 7.2% of patients refused treatment, averaging just D o e s s . 3 9 o f I P TA i n f r i n g e t h e s . 1 5 ( 1 )
13 days, while only 2% refused beyond 14 days. 22 C h a r t e r e q u a l i t y r i g h t ?
Some, including the ‘anti-psychiatry movement’23 which has legally empowered some competent psychiatric patients to Diff erent treatment may not always constitute discrimination. refuse unwanted treatment, counter that forced treatment is not Substantive inequality does not always require identical ameliorative. Patients may have valid reasons to reject treatment, treatment between groups because, where relevant diff erences in including undesirable side-eff ects, a preference for their own group characteristics exist, “like treatment can generate serious untreated thoughts and a right to make seemingly unwise choices. inequality.”42 For s.39 to constitute discrimination requires In addition, forced treatment may impair outcomes. Yet refusing satisfying a two-part test: “(1) Does the law create a distinction treatment may sometimes mean an untreated patient cannot be based on an enumerated or analogous ground?43 and, (2) does released into the community, needing long-term hospitalization,24 the distinction create a disadvantage by perpetuating prejudice which some term “rotting with their rights on.”25 e second question requires examining four contextual factors identifi ed in Law44 and Kapp: any pre-existing Untreated mentally ill face grave disadvantages --possible direct disadvantage aff ecting the group; any correspondence between the suff ering from the illness, and negative societal attitudes-— diff erent treatment and the group’s ‘reality;’ whether the impugned deserving amelioration. Yet IPTA s.39 may not qualify as affi law has an ameliorative purpose (or eff ect); and the nature of the JEMH · November 2009 · 4(2) | 2
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interest aff ected. Consider two of these factors in the context of Are the means taken rationally connected to the objective sought?
If s.39’s objective involves ensuring treatment to optimize chances of release, the rational connection branch may also be met. A e mentally ill have endured a long history of discrimination, legislative attempt to redress marginalization of patients –ensuring marginalization, and stigmatization. As noted, the lesser legal treatment to remove stigmatizing symptoms—seems somewhat protection accorded patients’ prior wishes under s.39 perpetuates rationally connected to the goal, even if it cannot hope to eliminate societal myths about psychiatric patients’ competence,45 infantilizing them and oversimplifying the more complex reality.46 It continues patterns wherein the opinions of the mentally ill Anti-psychiatry’s supporters may disagree. Arguably, psychiatry are deemed of lesser signifi cance and worth, suggesting a has a long history of State suppression of eccentric, provocative (but non-dangerous) people whose non-conformity, threatens public order, or those in power.58 Labelling and treating mental illness e nature of the interest at stake in s.39 – the right to bodily may be powerful tools for silencing, suppressing minority views integrity and autonomy – is profoundly intimate, fundamental, and enforcing conformity. Kate Millett (1990), a lawyer with bi- and central to an individual’s sense of self. So important is it that, polar disorder, also notes that psychiatry -- “the system that keeps as noted in Fleming v. Reid, it is not only protected by the common millions in line”59 — may have somewhat tenuous foundations: law but also warrants constitutional protection under s.7 of the Charter as a right to security of the person, only to be denied The entire construct of the “medical model” of “mental according to the principles of fundamental justice. While the court illness”—what is it but an analogy?.whereas in physical in Fleming observed that the right is not absolute,48 but is subject medicine there are verifi able psychological proofs.in to overriding societal interests, it stated that bodily integrity and mental illness alleged socially unacceptable behaviour is autonomy deserve the “highest order” of protection.49 In this, “… taken as a symptom, even as proof.Diagnosis is based on few medical procedures can be more intrusive than the forcible impressionistic evidence: conduct, deportment, and social injection of powerful mind-altering drugs.oft en accompanied by manner. Such evidence is frequently imputed. Furthermore, severe and sometimes irreversible side-eff ects.”50 it may not even be experienced by the affl instead may be observed [only] by others.60 Overall, the Law and Kapp factors suggest that s.39’s diff erential treatment perpetuates prejudice and denies psychiatric patients’ Psychiatry is a fi eld in some chaos: the scientifi c connection s.15(1) ‘equality under the law’, suggesting that s.39 discriminates, between mind and brain remains unclear61 and even explaining the biological basis of the healthy human mind poses challenges. Does any competent patient possess autonomy in a medical decision, C a n s . 3 9 o f I P TA b e s ave d b y s . 1 o f
or is such freedom illusory?62 Uncertainties abound:63 psychiatric t h e C h a r t e r ?
diagnoses may vary and feigned illness may go undetected.64Medications65 also raise doubts regarding effi Legislation may be saved as a “reasonable limit, prescribed by eff ects.66 Physical side eff ects among older anti-psychotic drugs law in a free and democratic society”51: a public policy choice, include stigmatizing neurological symptoms. Th refl ecting overriding societal interests, under s.1 of the Charter. Haldol may risk lethal cardiac arrhythmias.67 Such side-eff ects Analysis follows the four-step Oakes test below. give patients valid reasons to consider refusing these older, but still used, drugs.68 While newer (‘atypical’) anti-psychotics exhibit Is there a pressing and substantial objective? Section 39’s purpose
cacy and lack these side-eff ects, they possess other seems directed at ensuring that patients receive medical treatment eff ects. Although cardiac rhythms are not aff ected, signifi cant and are released rather than warehoused.53 Some feel this goal weight gain,69 metabolic changes and possible diabetes may pose has been frustrated by lawyers more concerned with clients’ civil cardiovascular risks to be weighed against benefi ts. Yet despite such liberties than with patient well-being and potential. Herschel doubts, s.39 may still demonstrate a suffi Hardin (1993),54 former director of the British Columbia Civil Liberties Association and father to a schizophrenia patient explains:55 Does the impugned legislation `minimally impair` the right
infringed? Th
e legislature must tailor any rights intrusion, or Far from respecting civil liberties, legal obstacles to provide exceptions to it. IPTA’s requirement of the “least restrictive” treatment limit or destroy the liberty of the person.Such treatment70 suggests eff orts to tailor s.39’s intrusion.71 A “least victims. cannot think for themselves or exercise any restrictive” choice implies sometimes using physical restraints, meaningful liberty.The opposition to involuntary committal seclusion, persuasion and incentives72 to gain cooperation, and treatment betrays a profound misunderstanding of prevent harm and preserve the therapeutic environment. Yet if the principle of civil liberties. Medication can. restore any psychiatric treatment refusal progressively damages brain [patients’] dignity, free will and the meaningful exercise of and mind, or risks ‘mental harm to others’73 s.39 may subject almost any competent patient to unwanted medication. Th seems inconsistent with tailoring. Moreover, the specifi c right us in view of the human values at stake56 the objective of ensuring infringed by s.39 seems inconsistent with minimal impairment. involuntary treatment does seem ‘pressing and substantial.’57 While neither rights to liberty nor bodily integrity are absolute, both are important s.7 Charter rights, only to be infringed in JEMH · November 2009 · 4(2) | 3
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accordance with the principles of fundamental justice. Yet they many dimensions to their lives, only one of which involves their biomedical status. Biomedical assessments cannot canvas all of the values a person may treasure, which defi ne him personally. Liberty and security of the person diff er in their sensitivity to Some patients prefer their own unique mental processes, as interference. It is easier to tailor intrusions on liberty. Th ‘Starson’ (2003) preferred his rapid thoughts, supporting his be done spatially, limiting a person’s movements, activities or research.88 Others enjoy the emotional highs,89 or fi nd meaning interactions, or at the extreme, by restricting almost all activity, and livelihoods using artistic states inaccessible in treatment. using seclusion, chemical or physical restraints.74 Liberty intrusions may also be modifi ed temporally, by duration. Security of the Emerging concepts such as ‘Mad Pride’ seek to reclaim and person,75 however, is much more sensitive to interference, and celebrate, rather than pathologize,90 mental diff erence. Th cult to infringe in a tailored way. Bodily integrity either diversity91 movement’ holds that healthy human neurological is, or is not, entirely breached by intrusions. Temporal tailoring function forms a continuum of (equally acceptable) ways of of intrusions seems meaningless when even brief intrusions on thinking, including conditions labelled as illness or disability.92 bodily integrity, as in unwanted sexual contact, may have profound Mental diff erences may be a ‘way of life,’93 as is ‘deaf culture’ to some. Some argue the true location of mental ‘disability’ may lie within mainstream society’s unconscious reactions to diff erence, Bodily integrity and autonomy rights –the right to dictate what is not in the person claimed to be diff erent. done to one`s body, brain and mind --also seem of more central value than liberty, given the importance of a person’s physical Accordingly, is s.39’s cost-benefi t ratio proportional to the goal’s ‘being’ to identity, self-determination and survival. Individuals e answer will depend on the values of highest express their unique personal identities through their bodies,76 priority—those less reasonable to sacrifi ce. Here, freedom from via temporary adornment,77 or permanent body modifi cations,78 interference with a patient’s bodily integrity and autonomy are liations and social status. A person’s of higher priority than staff morale, and patients’ potential and self-identity, memories and personality also exist in a specifi c body e body is therefore central to a person’s identity psychiatric patients’ full potential, rather than warehousing them, while important, cannot support serious impositions on the sacrosanct Canadian value of security of the person. us, while both liberty and security of the person are important, e proportionality step of the Oakes’ test must fail, therefore. security of the person seems both more fragile and more central Accordingly, at trial, it seems highly likely that s.39 would fail on to the person, warranting greater protection. Th at least two Oakes test branches and could not be saved under s.1. (i.e., most minimally impairing)80 option requires infringing liberty However, what remedies a judge might impose, such as striking over bodily integrity.81 Yet s. 39 adopts the opposite approach of down s.39 or reading in certain requirements, must await an actual infringing bodily integrity82 to promote patients’ liberty, so it fails to minimally impair psychiatric patients’ equality rights, clearly failing this third Oakes’ branch.
Co n c l u s i o n
Is there proportionality between benefi ts and costs of the means
chosen or objective sought? For certainty, the fi nal Oakes test
Non-consensual treatment of competent psychiatric patients ranks branch will also be explored. Here, the means (s.39) allows among the most controversial healthcare issues. Some regard it as interference with the personal autonomy of involuntary psychiatric a travesty for a patient not to be treated, if there is any chance of patients, against their express, competent wishes. Th a dependent and isolated group, vulnerable to coercion, possibly with younger patients, who face a longer period of potential illness confused by illness and sedation, who cannot easily air their views. (or health), and who may forfeit opportunities to establish career us further restricting these patients` choices require caution, to paths and important social relationships due to illness. Th preserve patient autonomy wherever possible. thus a temptation to view constitutional rights (including legal equality) as of lesser practical importance than a patient’s mental Bodily integrity warrants “the highest order of protection”83 in law, so proportionality requires s.39’s goal to be of comparable or higher priority. Section 39 off ers some benefi ts: it reduces violence, Some may see s.39 as a compassionate response to mental illness. verbal abuse and stress to staff or other patients, and may reduce Yet its disregard for involuntary patients’ legal rights perpetuates the application of more severe liberty restraints, shorten hospital damaging stereotypes about patients, such as that their competent stays84 and lower costs.85 Yet s.39’s forced treatment is an overly wishes are unworthy of respect. Such healthcare double standards simplistic approach to psychiatric illness that may cause harmful in the treatment of physically and mentally ill patients add to rather side-eff ects and impair real treatment progress.86 than alleviate any burdens from mental illness.
Tragic as such lost potential may be, it may be a necessary sacrifi ce is paper has asked whether IPTA s.39 could survive a s.15 Charter challenge. Overall, it seems it may not. While s.39 may superfi cially asymmetry between medical staff and patient imply a trust ameliorate the most visible disadvantages of mental illness through situation, requiring respect for patient choices. Also in a diverse, required treatment, it thereby reinforces our society`s invisible pluralistic society should the views of only one group --healthcare barrier to inclusion: stigma. Overall, s.39 starkly denies the Charter staff —determine the ‘best interests’ of all patients?87 Patients have legal equality guarantee, infringing a right --bodily integrity and JEMH · November 2009 · 4(2) | 4
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autonomy—considered sacrosanct in Canadian health law, which Hermann, D.H.J. (1994) Mental Health and Disability Law (Eagan, warrants stronger legal protection than liberty. Th unlikely to be saved by s.1of the Charter, due to failures in minimal Hospitals Act, R.S.N.S. 1989, c.208. s. 54A Incompetent Persons Act, R.S.N.S., 1989, c.218, s.2 (b).
Involuntary Psychiatric Treatment Act, S.N.S., 2005, c.42 [‘ IPTA’] Although IPTA updated many aspects of Nova Scotia’s mental Kesey, K. (1962) One Flew Over the Cuckoo’s Nest (New York: Viking). health legislation, s.39 is less than progressive. In contrast to Kirby M. J. L. and Keon, W. J. (2006) Out of the Shadows at Last: the ‘emergence from the shadows’ heralded for mental illness Transforming Mental Health, Mental Illness and Addiction Services this century, s.39 suggests a return to a more paternalistic era. in Canada, Final Report of the Standing Committee on Social Unchallenged, s.39 represents several steps backwards for Aff airs, Science and Technology, May 2006 [‘the Kirby Report’] psychiatric patients, compared with those in Canada`s physical Kirk, T. and Bersoff , D. N. ‘How many procedural safeguards does it take to get a psychiatrist to leave the light-bulb unchanged? A due process analysis of the MacArthur Treatment Competence Study,’ (1996) 2 Psychology, Public Policy, and Law 45- R e f e r e n ce s :
Law v. Canada (Minister of Employment and Immigration) [1999] 1 Law Society of British Columbia v. Andrews [1989] 1 S.C.R. 143 at Appelbaum, P.S. (1994) Almost a Revolution: Mental Health Law and the Limits of Change (New York: Oxford University Press).
e delicate dance in Canadian mental health policy: American Psychiatric Association, (2006) American Psychiatric balancing equality rights, family rights and community rights,’ Association Practice Guidelines for the Treatment of Psychiatric (2008) 3 Journal of Ethics in Mental Health 1 -5.
Disorders: Compendium 2006, (Arlington, VA: American Malette v. Shulman (1990), 72 O.R. (2d) 417, 67 D.L.R. (4th) 321 at Bartlett, K.T. ‘Feminist legal methods’ (1990) 103 Harvard Law Review Mental Health Act, C.C.S.M., c.M110 s.28(4)(b)(ii) Metzger, E. and Friendman, R. “Prolongation of corrected QT interval Bear, M.F., Connors, B.W. and Paradiso, M.A. (2001) Neuroscience: and torsades de pointes cardiac arrhythmia associated with Exploring the Brain, 3rd ed. (Lippincott, Williams & Wilkins: intravenous haloperidol in the medically ill” (1993) 13 J. Clin. e Atlantic (30 September 1998) online e Loony-Bin Trip (New York: Simon & Schuster).
at: www.theatlantic.com/doc/199809u/neurodiversity (accessed Pothier, D. ‘Miles to go: some personal refl ections on the social construction of disability’, Dalhousie Law Journal 526 -543.
e ethics of involuntary treatment: the [1982] position of the Canadian Psychiatric Association’, (1982) 27 Can. J. Psychiatry R. v. Music Explosion, Ltd., (1990), 68 Man. R. (2d) 203 at para. 18. R v Oakes, [1986] 1 S.C.R. 103 at para 69-71, 77 Canadian Charter of Rights and Freedoms, Part I of the Constitution R. v. Laba, [1994] S.C.J. No. 106 at para 79-91.
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, Ray, O. and Ksir, C. (2004) Drugs, Society and Human Behaviour 10th Canadian Mental Health Association, ‘Informed consent to treatment’ e Queen (1985), 21 C.C.C. (3d) 116 (Man. Q.B.).
online at: www.cmha.ca/bins/print_page.asp?cid=5-33- e Queen (1985), 20 C.C.C. (3d) 196 (B.C.S.C.), aff ’d 174&lang=1 (accessed 3 March 2009).
Canadian Mental Health Association,‘Stigma and Mental illness’ Saner, E. “It`s not a disease, it`s a way of life,” Th online at www.cmha.ca (accessed 3 March 2009) online at: www.guardian.co.uk/society/2007/aug07/ health.
Canadian Mental Health Association (British Columbia), ‘Criminalization of Mental Illness’ online at: www.cmha.bc.ca/ Schizophrenia Society of Canada, ‘Schizophrenia Society disappointed fi les/2-criminalization.pdf (accessed 27 September 2009) with Supreme Court decision` and sample ‘Letter to the Editor’ Chadwick, R. and Levitt, M. ‘Genetic technology: a threat to deafness’ for members, online at: www.schizophrenia.ca (accessed 11 (1998) 1 Medicine, Healthcare and Philosophy 209-215.
Consent to Treatment and HealthCare Directives Act, R.S.P.E.I. 1988, Slobogin, C. (2006) Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty (Cambridge, MA: Harvard Corbiere v. Canada (Minister of Indian and Northern Aff airs), [1999] Starson v Swayze. [2003] S.C.J. No. 33 at para 76.
e Astonishing Hypothesis (Charles Scribner’s Sons: Sullivan, G., Burnam A. and Koegel, P. ‘Pathways to homelessness among the mentally ill,’ (2000) 35 Soc. Psychiatry Psychiatr. Fleming v. Reid, [1991] 4 O.R. (3d) 74 at para. 31 Gillett, G. ‘Intention, autonomy and brain events,’ (2009) 23 Bioethics Tallis, R. “Why blame me? It was all my brain’s fault: the dubious e Times (24 October 2007) online: www.
Gordon, H. ‘Treatment Act divides mental health advocates` Nova timesonline.co.uk/tol/comment/columnists/guest_contributors/ News Net (4 November 2005) online at http: http://novnewsnet.
Tisdale, J.E., Kambe, J.C. , Chow, M.S. and N.S. Yeston, “Eff ect of Gray, J.E., Shone, M.A. and Liddle, P.F. (2000) Canadian Mental Health haloperidol on ventricular fi brillation threshold in pigs” (1991) Law and Policy (Toronto: Butterworths). 69 Pharmacol. Toxicol. 327-9.
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Torrey, E.F. (1997) Out of the Shadows: Confronting America’s Mental Illness Crisis, (Toronto: J. Wiley & Sons, Inc.) (a) in accordance with the patient’s prior capable informed Weiner, B.A. and Wettstein, R.M. (1993) Legal Issues in Mental Health (b) In the absence of awareness of a prior capable informed Weisstub, D.N. (1990) Enquiry on Mental Competency: Final Report expressed wish, in accordance with what the substitute decision-maker believes to be in the patient’s best interest.
Wildeman, S. (2008-9), ‘Mental Disability Law’ (course), Dalhousie A second example, Prince Edward Island’s Consent to Treatment and HealthCare Directives Act, R.S.P.E.I. 1988, c.C-17.2, ss.20 and 24 state: 20. (1) Every person over the age of sixteen years who is capable E n d n o t e s
Involuntary Psychiatric Treatment Act, S.N.S., 2005, c.42 [‘ IPTA’] (a) stipulate treatment, procedures, or medication that Incompetent Persons Act, R.S.N.S., 1989, c.218, s.2 (b).
the maker authorizes or refuses to consent to, or directs Involuntary Psychiatric Treatment Act, s.3(m): an ‘involuntary to be discontinued, in the circumstances set out in the patient’ means “a patient who is admitted to a psychiatric facility pursuant to a declaration of involuntary admission.” A (b) stipulate circumstances in which the maker shall be psychiatrist can make a declaration of involuntary admission permitted to die a natural death, receiving only palliative care intended to reduce pain and suff ering; (b) the person is in need of the psychiatric treatment (d) specify an event or condition upon which the directive (c) the person, as a result of the mental disorder, (e) make any other direction concerning the health care (i) is threatening or attempting to cause serious harm to himself or herself or has recently done so, 24. (1) A decision contained in a directive shall be as eff ective has recently caused serious harm to himself or herself, as if made by the maker when the maker had capacity to make is seriously harming or is threatening serious harm towards another person or has recently done so, Fleming v. Reid,[1991] 4 O.R. (3d) 74 at para.60.noted that the right to bodily integrity and autonomy is not absolute. Th (ii) is likely to suff er serious physical impairment or there may be limited circumstances where competent psychiatric patients’ autonomy may validly be curtailed, for example, in (d) the person requires psychiatric treatment in a psychiatric emergency mental health situations, where a patient must be facility and is not suitable for inpatient admission as a temporarily chemically restrained using sedative drugs. Th seems reasonable since individual rights are never absolute but (e) as a result of the mental disorder, the person does not must be weighed against other rights, or those of other parties or have the capacity to make admission and treatment the community. For instance, in physical healthcare, autonomy rights of competent patients may also be curtailed in limited Involuntary Psychiatric Treatment Act, s. 39: Th circumstances, such as where a patient has been diagnosed with decision-maker shall make the decision in relation to specifi ed a serious communicable disease (e.g., multiple-drug resistant psychiatric treatment and other related medical treatment tuberculosis) that presents a serious public health risk. It should (a) In accordance with the patient’s prior capable informed be noted that the patients aff ected by s.39 of IPTA are not at large in the community or able to leave the hospital at will. All (b) in the absence of awareness of a prior capable informed are involuntarily hospitalized and thus pose no danger to public expressed wish or if following the patient’s prior capable informed expressed with would endanger the physical IPTA s.39 is not entirely unique in Canada in its attempts to or mental health or safety of the patient or another override the competent advance wishes of psychiatric patients. person, in accordance with what the substitute decision- For example, Manitoba’s Mental Health Act, C.C.S.M., c.M110 maker believes to be in the patient’s best interests.
s.28(4)(b)(ii) accomplishes much the same end. Section 28(4) Malette v. Shulman (1990), 72 O.R. (2d) 417, 67 D.L.R. (4th) 321 at para. 18 and 24: “Under the doctrine [of informed consent], A person who makes treatment decisions on a[n incompetent] no medical procedure may be undertaken without the patient`s patient’s behalf under subsection (1) shall do so consent.” and: “A doctor is not free to disregard a patient`s (a) in accordance with the patient’s wishes, if the person knows advance instructions any more than he would be free to disregard that the patient expressed such wishes when apparently instructions given at the time of the emergency.” Fleming v. Reid,[1991] 4 O.R. (3d) 74 at para. 31: “Th (b) in accordance with what the person believes to be the what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply (i) the person has no knowledge of the patient’s expressed (ii) following the patient’s expressed wishes would Hospitals Act, R.S.N.S. 1989, c.208. s. 54A states (for example): endanger the physical or mental health or the safety e substitute decision-maker shall make the decision in relation JEMH · November 2009 · 4(2) | 6
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While this paper focus specifi cally on IPTA s.39, many of the treatment. J.E. Gray, M.A. Shone and P.F. Liddle, Canadian arguments may be applicable to other provincial legislation that Mental Health Law and Policy (Toronto: Butterworths, 2000) at attempts to override psychiatric patients’ competent wishes in 10-12. P.S. Appelbaum also discusses the ‘common-sense model’ in which he argues psychiatrists and judiciary in practice oft en While IPTA is in the minority in its overriding of psychiatric ignore the law, preferring involuntary committal and treatment patients’ competent wishes, it is not entirely alone in so doing is, he claims, priorizes (presumed) patient suff ering in Canada. For example, the Manitoba’s Mental Health Act s. over legal rights. P.S. Appelbaum, Almost a Revolution: Mental 28(4)(b)(ii) permits an almost identical situation, overriding Health Law and the Limits of Change (New York: Oxford the patient’s expressed wishes (made while competent) with best interests where following such wishes would “endanger ere may is a belief by some that the entire purpose of the physical or mental health or safety of the patient or another hospitalization is to treat and discharge psychiatric patients, person.” In addition, British Columbia’s Mental Health Act s.31(1) rather than simply detaining them long-term to protect them may override competent patient wishes by deeming patient or the public, termed ‘warehousing.’ J.E. Gray, M.A. Shone and consent to treatment have been given, on the basis of detention; P.F. Liddle, Canadian Mental Health Law and Policy (Toronto: and New Brunswick’s Mental Health Act s.8.11(2) may override Butterworths, 2000) at 208; C. Slobogin, Minding Justice: Laws competent advance directives if they are not reliable, not current, that Deprive People with Mental Disability of Life and Liberty (Cambridge, MA: Harvard University Press, 2006) at 222. Canadian Charter of Rights and Freedoms, Part I of the Constitution Psychiatrist C.H. Cahn described the situation as a trade-off Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, or quid pro quo, in which he claimed restriction of a patient`s liberty could only be justifi ed by giving a patient (eff ective, non-harmful) treatment in return. C.H. Cahn, ‘Th Canadian Charter of Rights and Freedoms, Part I of the Constitution involuntary treatment: the [1982] position of the Canadian Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, Psychiatric Association’, (1982) 27 Can. J. Psychiatry 67 at 70. Countering this is the view that psychiatric hospitalization is Law v. Canada (Minister of Employment and Immigration) [1999] itself a form of treatment, or a vital part of the healing process for e hospital environment off ers supportive Law Society of British Columbia v. Andrews [1989] 1 S.C.R. 143 human relationships, monitoring and interaction, improved hygiene, shelter, nutritional and educational benefi ts, freedom While no comparator group may be perfect, and others could from illicit street drugs, physical abuse, hypothermia, criminal perhaps have been selected, patients suff ering physical illness justice system involvement and other dangers, compared to seemed the most useful comparator group for the purposes of this the potentially isolated and impoverished circumstances of paper. Ideally, in a s.15 Charter analysis, the comparators should homelessness, to which a patient may have been subject prior be very similar in all respects except for their legal treatment, which is the focus of the comparison. Choosing the physically ill From longer hospitalizations, added nursing and administrative seemed to appropriately emphasize the role of illness in creating the undeservedly unequal legal situation on which this paper 21 J.E. Gray, M.A. Shone and P.F. Liddle, Canadian Mental focuses. Alternatively, it might have been possible to compare, Health Law and Policy (Toronto: Butterworths, 2000) at 202-7; for instance, the mentally ill detained under s.39 with the group B.A.Weiner and R.M. Wettstein, Legal Issues in Mental Health composed of non-mentally ill persons detained criminally. While Care (New York: Plenum Press, 1993) at 120, 124.
some might think it appropriate to thereby place the emphasis T. Kirk and D.N. Bersoff , How many procedural safeguards does on detention and loss of liberty, this appeared less useful due to it take to get a psychiatrist to leave the light-bulb unchanged: a the very diff erent purposes detention may express in these two due process analysis of the MacArthur Treatment Competence groups: in the former, protection (of patient and potentially Study, (1996) 2 Psychology, Public Policy, and Law 45 at 46.
public), and in the latter, public protection but also punishment e anti-psychiatry movement formed the basis for the novel and the expression of societal disapprobation. Th One Flew Over the Cuckoo’s Nest, a novel which harshly critiqued aspect of justly deserved punishment and moral disapprobation psychiatry’s treatment of involuntarily committed psychiatric patients; K. Kesey, One Flew Over the Cuckoo’s Nest (New York: mentally ill detained involuntarily as to make it an inappropriate comparator, because in that case there genuinely appears to be a ere are, of course, similarities between involuntary psychiatric non-discriminatory reason for any diff erent treatment.
committal and criminal incarceration: both share “loss of R. v. Kapp [2008] S.C.J. No. 42 at para. 16.
liberty, separation from family and friends, stigma of being R. v. Kapp [2008] S.C.J. No. 42 at para. 41.
institutionalized and reliance on the state to satisfy basic needs.” ank-you theory’ has been attributed to psychiatrist D.H.J. Hermann, Mental Health and Disability Law (Eagan, MN: Alan Stone by T.Kirk and D.N. Bersoff , ‘How many procedural West Publishing, 1994) at 193. However, there are also important safeguards does it take to get a psychiatrist to leave the light-bulb diff erences, such as that the purpose underlying psychiatric unchanged? A due process analysis of the MacArthur Treatment detention is not punitive or deterrent.
Competence Study,’ (1996) 2 Psychology, Public Policy, and Law i.e., in full possession and awareness of their legal rights, yet 45 at 46. Some related concepts are of note. Th because of these legal rights supporting treatment refusal, unable perspective’ on mental illness is promoted by some as an antidote to access their seeming ‘right’ to their full potential in life and to civil libertarian eff orts to legally empower psychiatric patients a place in society. D. Treff ert, quoted in C. Slobogin, Minding to contest involuntary committal and resist unwanted medical Justice: Laws that Deprive People with Mental Disability of Life JEMH · November 2009 · 4(2) | 7
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and Liberty (Cambridge, MA: Harvard University Press, 2006) found to be disadvantaged to advance an argument of affi action. As the Court noted in Corbiere v. Canada (Minister of As noted by the Court in Law, “Legislation which seeks to Indian and Northern Aff airs), [1999] 2 S.C.R. 203 at para.70-72: ameliorate disadvantage may not off end s.15(1) of the Charter to qualify as ameliorative of disadvantage, it is not necessary for even if it excludes certain other individuals or groups.However, all individuals members of a generally `disadvantaged` group this is only the case where the group excluded .is more advantaged to suff er disadvantage, or to the same degree; confi rmed in R. v. in a relative sense than those the legislation seeks to assist.” Kapp [2008] S.C.J. No. 42 at para. 59.
(Emphasis added). Law v. Canada (Minister of Employment and Individuals with psychiatric diagnoses are overrepresented among Immigration) [1999] 1 S.C.R. 497 at para. 72 the homeless, totalling 20-25% of the homeless population. G. R. v. Music Explosion, Ltd., (1990), 68 Man. R. (2d) 203 at para. Sullivan, A. Burnam and P. Koegel, ‘Pathways to homelessness 18. Yet the Court noted that in two diff erent cases, sections among the mentally ill,’ (2000) 35 Soc. Psychiatry Psychiatr. of the Criminal Code and Young Off enders Act were upheld as Epidemiol. 444 at 444. In contrast, individuals with schizophrenia, rmative action programs under s.15(2): Re Rebic and Th bipolar disorder and major depression account for only 1%, 2% Queen (1985), 20 C.C.C. (3d) 196 (B.C.S.C.), aff ’d (1986), 28 and 5% of the population respectively; M.F. Bear, B.W. Connors C.C.C. (3d) 154 (B.C.C.A.) and Re M and Th and M.A. Paradiso, Neuroscience: Exploring the Brain, 3rd ed. 21 C.C.C. (3d) 116 (Man. Q.B.). Both cases upheld diff erences (Lippincott, Williams & Wilkins: New York, 2001) at 673, 674, in incarceration periodsas ameliorative of the special needs of certain classes of off enders: mentally ill off enders found not 37 More than 50% of people with psychiatric disorders also have guilty by reason of insanity (then detained under a Lieutenant- substance abuse problems; Canadian Mental Health Association Governor’s Warrant), and youth serving time while awaiting trial, (British Columbia), ‘Criminalization of Mental Illness’ online at: respectively. In both cases, the impugned law seemed rationally www.cmha.bc.ca/fi les/2-criminalization.pdf related to identifi ed unique needs of the parties aff ected: the need One estimate is that 15-40% of inmates in Canada’s criminal for long-term separation of dangerous mentally ill patients from justice system have a mental illness; Canadian Mental Health society for their own and others’ safety, and the need for greater Association (British Columbia), ‘Criminalization of Mental leniency with youthful off enders. In contrast, in Music Explosion, Illness’ online at: www.cmha.bc.ca/fi les/2-criminalization.pdf the impugned bylaw’s attention to younger teenagers did not e Kirby Report into Canadian mental healthcare found seem to refl ect a rational ameliorative purpose related to the widespread stigma and discrimination against mentally ill youths’ abilities or special needs, appearing almost arbitrary. Th people in employment, housing, social opportunities and even circumstances of s.39’s involuntarily hospitalized but competent healthcare, with debilitating eff ects on lives and recovery. One mentally ill treatment-refusers more closely resembles the contributor stated: “Some patients struggle with poverty so fact pattern in Music Explosion, with its seemingly arbitrary grinding and housing so appalling, it would challenge the sanity restriction of these patients’ rights to have their competent of even the strongest among us.” Another added: “Individual recovery from mental health [problems] is impossible when Limiting younger teenagers’ use of a musical ‘amusement device’ struggling with the consequences of poverty alongside stigma R. v. Kapp [2008] S.C.J. No. 42 at para. 53.
Wilbert J. Keon, Out of the Shadows at Last: Transforming Mental R. v. Kapp [2008] S.C.J. No. 42 at para. 54 Health, Mental Illness and Addiction Services in Canada, Final R. v. Kapp [2008] S.C.J. No. 42 at para. 46.
Report of the Standing Committee on Social Aff airs, Science and R. v. Kapp [2008] S.C.J. No. 42 at para. 48, quoting Manitoba Rice Technology, May 2006 at7, 8 [‘the Kirby Report’] Farmers v Human Rights Commission (Man.), [1985] M.J. No. Numerous scholars have discussed the social construction of disability (or diff erence) and the question of where precisely such 33 As the court in Fleming v. Reid said: “Th disability (or diff erence) is located: in the individual claimed to treatment] must be honoured. regardless of how ill-advised the be diff erent or in a society unwilling to accept or accommodate patient’s decision may appear to others.” Fleming v. Reid,[1991] 4 that diff erence? D. Pothier, ‘Miles to go: some personal refl ections O.R. (3d) 74 at para. 32-33.Also in Starson v Swayze. [2003] S.C.J. on the social construction of disability’, Dalhousie Law Journal No. 33 at para 76, the Supreme Court stated: “Th 526 at 530-1; R. Chadwick and M. Levitt, ‘Genetic technology: a to be foolish is not unimportant; the right voluntarily to assume threat to deafness’ (1998) 1 Medicine, Healthcare and Philosophy 209 at 210; and K.T. Bartlett ‘Feminist legal methods’ (1990) 103 Harvard Law Review 829 at 843. Mental illness has similarly been Stigma involves “negative attitudes or beliefs that are held about claimed to be a social construction located not so much in the people who are perceived as diff erent”; since they are oft en semi- aff ected individual, but in the society in which that person lives, which is unwilling to accept and accommodate their mental Organization (WHO) stated in 2001 that stigma was “the single illness and the diff erences it represents.
most important barrier” faced by people with mental illnesses. An absurd analogy might be an attempt to eliminate racism Reported by the Canadian Mental Health Association, ‘Stigma by superfi cially ‘whitewashing’ people of diff erent ethnicities and Mental illness’ accessed online at www.cmha.ca As one without addressing and rooting out the underlying myths, fears contributor noted: “We attach no blame to someone who and stereotypes fueling (oft en semi-conscious) racist attitudes.
develops a physical illness, but when it comes to mental illness, Andrews , McIntyre J. quoted that “.there is no greater people experience discrimination on a daily basis.” inequality than the equal treatment of un-equals;” Law Society all individuals with mental illness may experience of British Columbia v. Andrews [1989] 1 S.C.R. 143 at para 26. Th disadvantage, it is not necessary that all mentally ill individuals be view that like treatment does not accord with true, substantive JEMH · November 2009 · 4(2) | 8
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equality was also re-iterated by the Court in R. v. Kapp [2008] Including possible patient suff ering, loss of liberty and exclusion due to stigma and involuntary committal, and lost human Law v.Canada (Minister of Employment and Immigration) [1999] e urgent societal goals of reducing homelessness, poverty, addictions and criminalization of the mentally ill may also be D.N. Weisstub, whose Enquiry on Mental Competency: Final indirectly assisted, if treatment lets patients gain insight, acquire e Enquiry, 1990) at 116, was cited in evidence healthy lifestyle patterns and establish career, educational and by the Supreme Court in Starson v Swayze. [2003] S.C.J. No. social networks for life in the community.
Out of the Shadows: Confronting America’s Mental with lack of capacity, which occurs to an even greater extent Illness Crisis, (Toronto: J. Wiley & Sons, Inc., 1997) at 172-3 when involuntary commitment is involved, has deep historical e Loony-Bin Trip (New York: Simon & Schuster, roots, and…attitudes and beliefs have been slow to change. For this reason, it is particularly important that autonomy and self- e Loony-Bin Trip (New York: Simon & Schuster, determination be given priority when assessing individuals in this According to current mainstream scientifi c consensus, the ‘mind’ ere is in general no such thing as global competence or is a product of interactions between the neurons of the brain incompetence. In some patients, competence may fl uctuate over e Astonishing Hypothesis (Charles time, or be present for some decisions but not others. However, Scribner’s Sons: New York, 1994) at 7.
overall, many mentally ill patients are competent either all or at Numerous authors have questioned whether human beings in least part of the time for all or at least some decisions.
general can be said to possess meaningful free will, autonomy and erefore, individuals whose s.7 Charter rights to life, liberty or free choice in our decisions; F. Crick, Th security of the person are to be infringed must receive procedural (Charles Scribner’s Sons: New York, 1994) at 10, 171, 267-8; fairness entitlements, such as a right to an impartial hearing, a R.Tallis, “Why blame me? It was all my brain’s fault: the dubious e Times (24 October 2007) online: www.
timesonline.co.uk/tol/comment/columnists/guest_contributors/ protections for security of the person under s.39 (e.g., a Board article2726643.ehtml. In the specifi c context of healthcare hearing at the mental hospital, where a substitute decision-maker decisions made by competent patients, Grant Gillett has explored deliberates on the patient’s ‘best interests’). However, this may the meaningfulness of informed consent in light of mental factors not be enough. As discussed elsewhere, s.39 of IPTA has the that appear to undermine truly free choice in healthcare (e.g., potential for a s.7 Charter challenge too, although this issue will framing eff ects and other unconscious irrational forces directing decisions). He concludes that the deliberation process is not just a Fleming v. Reid,[1991] 4 O.R. (3d) 74 at para. 60 facade, and that competent patients do in fact possess meaningful Fleming v. Reid,[1991] 4 O.R. (3d) 74 at para. 39 Fleming v. Reid,[1991] 4 O.R. (3d) 74 at para. 40 by patients’ decision-making within (or in opposition to) the Canadian Charter of Rights and Freedoms, Part I of the Constitution knowledge scaff olding provided by an informed mentor (the Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, healthcare provider or others); G. Gillett, ‘Intention, autonomy and brain events,’ (2009) 23 Bioethics 330 at 336-7.
R v Oakes, [1986] 1 S.C.R. 103 at para 69-71, 77; and R. v. Laba, 63 While the lack of scientifi c understanding of psychiatric [1994] S.C.J. No. 106 at para 79-91.
treatments may seem concerning, in physical illness, aft er is conclusion is based on several factors: the s.2 subordination safety assessments, certain medical treatments or drugs may be of patient self-determination rights (respected only “where routinely used, as Aspirin’s active ingredients once were, without possible”) to treatment; the overriding eff ect of s.39 on prior a full understanding of their mechanism of function.
wishes (opposing the usual trends in informed consent); the J.E. Gray, M.A. Shone and P.F. Liddle, Canadian Mental Health Act’s title (the Involuntary Psychiatric Treatment Act); and Law and Policy (Toronto: Butterworths, 2000) at 41.
the admission requirement under s.17(e) that, involuntary Once termed neuroleptics, the older-style (fi rst-generation) psychiatric patients lack competence.
anti-psychotic medications included drugs such as haloperidol Out of the Shadows: Confronting America’s Mental (Haldol), used to treat psychotic patients with various diagnoses. Illness Crisis, (Toronto: J. Wiley & Sons, Inc., 1997) at 162.
ere are now also newer `atypical` (or second-generation) anti-psychotic drugs, such as olanzepine (Zyprex). O. Ray and has argued that competent patients` Charter liberty rights are C. Ksir, Drugs, Society and Human Behaviour 10th ed. (Boston: violated by allowing them to remain untreated; Schizophrenia McGraw-Hill, 2004) at 225-7. However, the older fi rst-generation Society of Canada, ‘Schizophrenia Society disappointed with drugs still appear to be in use, as discussed infra.
Supreme Court decision` and sample ‘Letter to the Editor’ for e older generation of anti-psychotics worked by blocking members’ use, online at: www.schizophrenia.ca (dated 11 June dopamine receptors, causing a similar clinical picture to 2003). I am indebted to Professor Sheila Wildeman for drawing Parkinson’s disease, where a defi ciency of dopamine ant the my attention to this article in her course ‘Mental Disability Law’ dopamine receptors is caused by reduced dopamine production at Dalhousie University Law School. In this distorted view of us as a result of the older anti-psychotic drugs, liberty, untreated psychiatric patients are claimed to have no some 20% of patients suff er Parkinsons-like motor side-eff ects, meaningful liberty; E.F. Torrey, Out of the Shadows: Confronting including for 2% of patients, tardive dyskinesia, a motor America’s Mental Illness Crisis, (Toronto: J. Wiley & Sons, Inc., disorder featuring writhing facial movements, drooling, etc. Th chance of Parkinsons-like side eff ects may be reduced either by JEMH · November 2009 · 4(2) | 9
2009 Journal of Ethics in Mental Health
administering a second (anti-cholinergic) drug to block motor Mental Health Law and Policy (Toronto: Butterworths, 2000) at side-eff ects, by carefully selecting an (older-style) anti-psychotic 196. However, this is a misconception: whether the unwanted drug, or by using atypical anti-psychotic drugs, although the latter drug therapy is oral or by injection, the eff ect remains the same: possess other concerning side eff ects. O. Ray and C. Ksir, Drugs, the drugs enter the person’s body and transit the blood brain Society and Human Behaviour 10th ed. (Boston: McGraw-Hill, barrier, potentially aff ecting the competent patient’s most intimate thoughts in an unwanted manner. Th 67 American Psychiatric Association (APA), American the route of administration, the patient’s right to bodily integrity Psychiatric Association Practice Guidelines for the Treatment has been violated, and to the same degree.
of Psychiatric Disorders: Compendium 2006, (Arlington, VA: For example, no competent skin cancer patient, regardless of American Psychiatric Association, 2006)) at 85; E. Metzger how life-threatening or treatable their disease, is required to and R. Friendman, “Prolongation of corrected QT interval undergo treatment, on the justifi cation that the patient and and torsades de pointes cardiac arrhythmia associated with his potential can be saved, preventing family distress and later intravenous haloperidol in the medically ill” (1993) 13 J. Clin. Psychopharmacol. 85-86; J.E. Tisdale, J.C. Kambe, M.S. Chow physically ill is a well-recognized right at law and will ordinarily be and N.S. Yeston, “Eff ect of haloperidol on ventricular fi brillation respected to avoid legal liability for battery. Comparable respect threshold in pigs” (1991) 69 Pharmacol. Toxicol. 327-9.
for competent wishes of the mentally ill is required in psychiatric APA Practice Guidelines for 2006 identifi ed care, in the interests of legal equality.
haloperidol as still the “anti-psychotic medication of fi rst Fleming v. Reid,[1991] 4 O.R. (3d) 74 at para. 39.
choice,” American Psychiatric Association Practice Guidelines Untreated patients’ stays may average twice as long, generating for the Treatment of Psychiatric Disorders: Compendium 2006, higher costs. J.E. Gray, M.A. Shone and P.F. Liddle, Canadian (Arlington, VA: American Psychiatric Association, 2006) at 85.
Mental Health Law and Policy (Toronto: Butterworths, 2000) at e delicate dance in Canadian mental health 204. Some treatment-refusers are hospitalized for much longer— policy: balancing equality rights, family rights and community ordered to spend a 12-month period in hospital, ‘Professor rights,’ (2008) 3 Journal of Ethics in Mental Health 1 at 1.
Starson’ had been hospitalized for years by his trial date in Involuntary Psychiatric Treatment Act, S.N.S., 2005, c.42, s. 2(c) 2003; Schizophrenia Society of Canada, ‘Schizophrenia Society In addition, the s.39 override only applies to some mentally ill disappointed with Supreme Court decision`, online at: www.
patients at certain times: those who risk harm to self or others.
schizophrenia.ca (dated 11 June 2003). Some never return to For example, outdoor grounds privileges.
the community nor fulfi l their potential, although medication Including an unjustifi ed fear of untreated patients) Some argue that impositions on one`s physical autonomy (via Gray argues that warehousing a treatment-refuser for two forced psychiatric treatment) restrict not only physical liberty years might cost $330,000, while a one-month treatment costs but mental liberty as well. C. Slobogin, Minding Justice: Laws only $15,000, followed by release. J.E. Gray, M.A. Shone and that Deprive People with Mental Disability of Life and Liberty P.F. Liddle, Canadian Mental Health Law and Policy (Toronto: (Cambridge, MA: Harvard University Press, 2006) at 222.
Butterworths, 2000) at 206. Yet his estimate omits the need for ‘Security of the person’ will be used interchangeably here with post-release community supports and medications. Hence the the common law rights to bodily integrity and autonomy.
actual cost asymmetry remains unclear.
Including gender, age, racial and ethnic characteristics.
86 Professor Sheila Wildeman describes IPTA`s involuntary For instance, clothing, hairstyling, jewellery and cosmetics.
treatment as a “combative approach to psychiatric therapy” that Such as diet, exercise, surgical augmentation, and skin piercing “polarizes the therapeutic relationship” and is counterproductive to meaningful treatment; H. Gordon, ‘Treatment Act divides Fleming noted that few intrusions are more extreme mental health advocates` Nova News Net (4 November than the legislatively enforced administration of mind-altering 2005) online at http: http://novnewsnet.ukings.ca/nova_ drugs, aff ecting this intimate body part.
news_3588_6825.html Studies show that treating patients against As noted, the s.7 right to security of the person is only to be their will generally results in poorer prognoses; C. Slobogin, restricted in accordance with the principles of fundamental Minding Justice: Laws that Deprive People with Mental Disability justice. Yet s.39 of the IPTA appears to restrict security of the of Life and Liberty (Harvard University Press: Cambridge, MA, person in discriminatory manner, which cannot be in accordance with the principles of fundamental justice. Fundamental justice e Canadian Medical Health Association states: “It cannot be and discriminatory treatment are diametrically opposed in eff ect assumed that medical treatment is the only or best option for us s.39 seems unlikely to minimally impair the individuals [with mental illnesses].” Canadian Mental Health s.15 equality right because not only does s.39 completely impair Association, ‘Informed consent to treatment’ online at: www.
a patient`s right to bodily integrity, but it does so on the basis cmha.ca/bins/print_page.asp?cid=5-33-174&lang=1 (accessed of values diametrically opposed to the principles of fundamental Starson v Swayze. [2003] S.C.J. No. 33 at para. 46.
e mode of administration of unwanted medication is not Out of the Shadows: Confronting America’s Mental relevant to whether or not a violation of bodily integrity and Illness Crisis, (Toronto: J. Wiley & Sons, Inc., 1997) at 156.
autonomy has occurred. Gray suggests that since injections of Again, I am grateful to Professor Sheila Wildeman and her course medications are now rarely used in modern Canadian psychiatry, ‘Mental Disability Law’ at Dalhousie University Law School, for this is acceptable because no force is being used against the drawing my attention to this emerging trend, described in an patient (presumably implying there is no violation of bodily undated Toronto Star article by H. Henderson, entitled ‘Mad integrity); J.E. Gray, M.A. Shone and P.F. Liddle, Canadian Pride’, accessed online at: www.mindfreedom.org/mindfreedom/ 2009 Journal of Ethics in Mental Health
madpride/Toronto_d.shtml (accessed 30 January 2004).
online at: www.theatlantic.com/doc/199809u/neurodiversity 92 Maintaining and encouraging mental differences – neurodiversity-- may be as important as preserving biodiversity, to ensure humanity`s future adaptability and survival: “Who can say what form of [neurological] wiring will prove best?” H. Blume, “Neurodiversity” Th online at: www.theatlantic.com/doc/199809u/neurodiversity E. Saner, “It`s not a disease, it`s a way of life,” Th online at: www.guardian.co.uk/society/2007/aug07/ health.
medicineandhealth Acknowledgements: Th
e author gratefully acknowledges the encouragement, inspiration and many helpful editing suggestions of Professor Jocelyn Downie of Dalhousie University Law School. She would also like to acknowledge with sincere appreciation many insights regarding psychiatric care and Canadian mental health law generally, gained while attending Professor Sheila Wildeman’s course ‘Mental Disability Law’, taught at Dalhousie University Law School in 2008-2009. Finally, she thanks Dalhousie’s Novel Tech Ethics for supporting her with a student award for presentation of the paper at the recent conference ‘Brain Matters: New Directions in Neuroethics,’ in Halifax, Nova Scotia, September 25-6, 2009. Academic, Professional and Financial Affi
liations:
Recipient, Canadian Institutes of Health Research (CIHR) Training Fellowship; Recipient, Student Trainee Award, ‘Brain Matters’ conference (Novel Tech Ethics, Dalhousie University). Funding recipient, Neuroethics Emerging Team, Dalhousie University. Funding recipient, Law Foundation of Nova Scotia. Competing Interests: None.
Address for Correspondence:
#28-1424 Seymour Street, Halifax, Nova Scotia, B3H 3M5
email: [email protected]
2009 Journal of Ethics in Mental Health

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