Brian's Law (Mental
Health Legislative Reform), 2000, Bill 68, Mrs
Witmer /Loi Brian de 2000 sur la réforme
législative concernant la santé mentale,
projet de loi 68, Mme Witmer
Office of the Chief
Coroner
Dr James Young
Dr Jim Cairns
Dr David Eden
Canadian Mental Health
Association, Ontario division
Ms June Rickard
Ms Patricia Bregman
Mr Glenn Thompson
Psychiatric Patient
Advocate Office
Mr Vahe Kehyayan
Ms Mary Jane Dykeman
Ms Barbara Cadotte
Centre for Addiction
and Mental Health
Dr Paul Garfinkel
Dr David Goldbloom
Mental Health Legal
Committee
Ms Anita Szigeti
Mr Michael
Armstrong
Judge David L.
Bazelon Center for Mental Health Law
Ms Tammy Seltzer
Consumer/Survivor and
Family Community Development Project
Mr Brian McKinnon
Mr Graeme
Bacque
Mr John De
Sousa
People Against
Coercive Treatment
Mr Don Weitz
Mr Joseph Tedesko, Mr
Al Birney
Queen Street Patients
Council
Ms Jennifer Chambers
Ms Patricia
Teskey
STANDING COMMITTEE ON
GENERAL GOVERNMENT
Chair /
Président
Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Présidente
Mrs Julia Munro (York North / -Nord PC)
Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Steve Gilchrist (Scarborough East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina ND)
Mrs Julia Munro (York North / -Nord PC)
Substitutions / Membres remplaçants
Mr Brad Clark (Stoney Creek PC)
Ms Frances Lankin (Beaches-East York / -Est ND)
Mr Richard Patten (Ottawa Centre / -Centre L)
Also taking part / Autres participants et
participantes
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Clerk pro tem / Greffier par intérim
Mr Tom Prins
Staff /Personnel
Ms Margaret Drent, research officer, Research and Information
Services
The committee met at 1533 in committee room
1.
BRIAN'S LAW (MENTAL HEALTH LEGISLATIVE REFORM), 2000
/ LOI BRIAN DE 2000 SUR LA RÉFORME LÉGISLATIVE
CONCERNANT LA SANTÉ MENTALE
Consideration of Bill 68, An
Act, in memory of Brian Smith, to amend the Mental Health Act and
the Health Care Consent Act, 1996 / Projet de loi 68, Loi à
la mémoire de Brian Smith modifiant la Loi sur la santé
mentale et la Loi de 1996 sur le consentement aux soins de
santé.
OFFICE OF THE CHIEF CORONER
The Chair (Mr Steve
Gilchrist): Good afternoon, members and guests. We are
here today for further presentations on Bill 68. The clerk
advises me that our first presenters, the Office of the Chief
Coroner, are in attendance, if Mr Young and any of his associates
could come forward. Welcome to the committee. As an expert
presenter, you've been allocated 30 minutes' time, to be divided
as you see fit between either presentation or question-and-answer
period. We invite you to give your names for the purpose of
Hansard, if you would be so kind.
Dr James
Young: I am Dr James Young, the chief coroner of
Ontario.
Dr Jim
Cairns: Dr Jim Cairns, the deputy chief coroner for
Ontario.
Dr David
Eden: Dr David Eden, the regional coroner for
Niagara.
Dr Young:
Thank you to the committee for inviting us to give a submission.
We're very pleased to be able to inform the committee about the
inquest processes and some of the recommendations that have
arisen from inquests.
We intend to give a brief
presentation and then leave considerable time for questions.
Following some general remarks, I've asked Dr Eden and Dr Cairns
to very briefly outline some details of a few of the inquests,
including Brian Smith's inquest and the inquest into Zachary
Antidormi, and the inquest into Jennifer England in particular,
but we're certainly happy to answer questions on any of the
inquests.
The Office of the Chief
Coroner is very pleased to see the proposed changes to the Mental
Health Act on the table for discussion. We must say that these
changes accurately reflect many of the major recommendations of a
considerable number of coroner's inquests over the past 10
years.
It is our view, in dealing
with the difficult issue of mental health, that mental health is
not just a health issue; it affects people, and certainly in
terms of our investigation, involves the community, obviously
involves the health care system, and unfortunately all too often
involves justice issues as well.
The deaths that involve
mentally ill people occur, as I've said, in a number of different
settings. Unfortunately we have investigated deaths of people who
have committed suicide within mental health facilities, who have
been involved in homicides within mental health facilities, and
persons with mental illness who have died as a result of
restraint within mental health facilities.
On the streets and in the
community, we deal with issues such as homelessness and the
incidence of mental health within the homeless population.
We also, unfortunately, deal
with the death of people who come in conflict with the law and in
the course of that conflict lose their lives. Among those we
would include Lester Donaldson and Edmond Yu, both of whose
deaths were inquested.
We also, unfortunately, deal
with situations where mentally ill people murder. The Antidormi
inquest and the Jennifer England inquest are two examples of
situations where people who were mentally ill and in the
community committed murders.
Within the justice system,
unfortunately, we also deal with deaths that deal with the
mentally ill, as well as the whole issue of conflict in the
street and police and the courts. Within jail, we've dealt with
situations where mentally ill people both commit murders and are
murdered, and we deal with suicide situations in the jail
involving the mentally ill.
Obviously any jurisdiction
that goes about looking at a Mental Health Act is in a
contentious area, and we recognize this. We've attempted in as
many inquests as possible to provide balanced evidence that goes
into the people arguing both for and against the various possible
solutions.
What seems to be agreed upon
by families, community activists and people giving evidence at
inquests, and in our
experience, is that as it's currently constituted, the system is
not working well. The solutions that people propose will vary,
and this committee I'm sure will be exposed to all, but it's
clear to us that what's currently being done and the way it's
being done are not working well.
Those who are, unfortunately,
trapped in the mental health system, in our view, will likely
require help over a long time. Therefore, the province needs to
put resources into health, into the community and, unfortunately,
into the justice system because of policing, courts and
jails.
The Ministry of the Solicitor
General did some study of the jail situation some years ago. At
any given time in a provincial institution, 15% to 20% of
provincial inmates have a psychiatric illness, 5% to 7% of the
provincial inmates have a serious mental illness and 9% of the
offenders under community sentence have symptoms of mental
illness. That's a very high percentage of people who are being
criminalized and in fact, in our view, are often in the wrong
part of the treatment mode.
Given that there is always a
limited envelope of money and resources available, the question
is, where is it best spent? Is it best in health, is it best in
the community or is it best in justice? Despite coming from one
of the ministries of justice, our view is that it's best spent in
health and in the community, and not best spent in justice.
In inquests and when we deal
with families, they repeatedly say that the current model, which
favours rights to some extent over treatment, places too many and
too much emphasis on the justice system. Families as well
repeatedly talk of their frustration over years of trying to get
help for their loved ones, and watching them deteriorate and
either die or commit a crime.
1540
If we all agree that the
system needs fixing, a logical starting point, to me, is to
define the act. Whatever act the government decides to choose and
finally settle on, they can then decide how to resource that
model. Clearly the current model requires a considerable amount
of funding to go into the justice system. A model that is based
more highly on community treatment orders may require additional
resources and emphasis on the community treatment model and on
the community itself. But it is a reasonable and a proper
starting point, in our view, to define the act so that we know
how to administer and where to go with the act.
I want to very briefly talk
about four of the major changes within it. The first is the
removal of the word "imminent" from the act. This issue arose at
a number of inquests, including Brian Smith, Lester Donaldson,
the Jennifer England inquest, the Antidormi inquest and the
Stephenson inquest.
The Ministry of Health had an
ambitious program in the last couple of years where Michael Bay
went around the province and lectured to doctors, police and
others about what "imminent" meant from a legal point of view. I
applaud that initiative and I think it did some good., but
unfortunately we don't believe it is enough in this particular
case. MDs are not lawyers. Words like "imminent" scare them. They
don't understand how they apply. They don't understand what
situation they apply in. Repeatedly in inquests, as we've
illustrated, this issue of what "imminent" means has come up, is
misunderstood and results in a failure to treat.
Community treatment orders
came up at the Brian Smith inquest, at the Antidormi inquest, the
England inquest and the Yu inquest. Clearly the idea is not that
everyone needs treatment, but rather that there are situations
where people do require treatment in order to remain in the
community. Again this has been discussed at length and has been
strongly supported in multiple inquests.
The idea of treating on an
involuntary admission was a subject at the Brian Smith and
England inquests. The expansion of section 17 to allow the police
reasonable grounds on which to bring someone in for assessment
came up at the Antidormi inquest, as well as Brian Smith and
Jennifer England.
Dr Eden is going to talk
further about the special circumstances where this came up in the
Antidormi inquest, so I'll ask him at this point in time to
comment on both the Smith and Antidormi inquests.
Dr Eden:
I'll provide you with more detail on these two deaths. As Dr
Young said, I'd like to reinforce that most violence by mentally
disordered persons is against themselves. While these two cases
are homicides, suicide is a much more common phenomenon in this
group.
Brian Smith, as we know, was
a 57-year-old broadcaster from Ottawa who was struck by gunfire
as he left his workplace on August 1, 1995. The following day a
38-year-old student turned himself in to police and gave a story
of what had happened and provided a weapon, which turned out to
be the weapon that had fired the bullet which killed Mr
Smith.
This 38-year-old man had been
dealing with chronic mental illness for more than 10 years and
had severe delusions relating to thought broadcasting; that is,
he felt other people could read his thoughts. He also felt that
had to do with the powers that be. He had attempted to visit two
prime ministers of Canada, as well as another federal minister,
as well as a number of other people in authority, to have the
thought broadcasting stopped. He had been treated several times
in hospital, both on medical grounds and on judges' orders. He
had a history of excellent response to treatment, but after
discharge he would stop taking his medication and his delusions
would develop again. Unfortunately, in this case, it developed to
the point where he felt the only way to stop thought broadcasting
was for him to assassinate a popular local personality.
In the Brian Smith inquest,
the jury representing the community made 72 recommendations, of
which 36 were to the Ministry of Health. As Dr Young pointed out,
they had to do with monitoring and mandatory treatment in some
circumstances of mentally ill people after discharge from a
psychiatric hospital.
Zachary Antidormi was a
two-and-a-half-year-old boy from Hamilton who was stabbed to
death by his 58-year-old
neighbour on March 27, 1997. This neighbour had a 20-year history
of chronic mental illness that had finally been diagnosed as
paranoid schizophrenia, which is schizophrenia with paranoid
delusions. She had been overtly threatening or violent for more
than 10 years. Of particular concern to the jury was the fact
that during the last two years before she killed the little boy,
she had no contact of any sort with a mental health professional,
despite numerous attempts by the family to obtain help for her
and numerous visits by the police to the residence.
The difficulties the family
faced in getting care for her were explored in some detail at the
inquest. We looked at sections 15, 16 and 17. I say "we" because
I was the presiding coroner at this inquest. Section 15 is the
section that authorizes physicians to involuntarily admit a
patient. In this case, this lady would not see a physician, so
section 15 could not be used. Section 16 is where a justice of
the peace can sign a form 2. The family feels they were given
advice that they could not approach a justice of the peace, but
in any event they did not make an application to a justice of the
peace. Section 17 authorizes peace officers to act, and in order
to do so they must see the person behaving in a certain way,
which is spelt out in the act, and there's been a judicial
ruling.
The lady in this case would
be quite overtly violent and bizarre. People would call police
and when the police arrived, she would be quite calm and
reasonable. Even though the police had corroborated disinterested
third-party evidence to suggest that this lady was dangerous and
was mentally ill, they could not act under the existing
legislation. That inquest produced 60 recommendations, of which
15 were to the Ministry of Health. Again the jury in that case
supported mandatory treatment of mentally ill people in the
community in some circumstances, as well as ongoing
monitoring.
Dr Cairns:
I'll speak very briefly about two inquests: the Christopher
Stephenson inquest and the Jennifer England inquest. I conducted
the Christopher Stephenson inquest back in 1992. Christopher
Stephenson was a young boy who was murdered by Joseph Fredericks,
a homosexual pedophile. Suffice to say that many of those
recommendations dealt with how to treat the mentally ill, who was
and wasn't mentally ill, and what the act did and didn't do.
I have personally found it of
great interest to follow, since 1992, the same recommendations
being repeated over and over again in subsequent inquests that
have taken place since then. In particular, in the Jennifer
England inquest there was a great custody battle over who should
get custody of Jennifer. Her non-biological father, despite being
a schizophrenic, was eventually given custody of Jennifer. At the
time he was given custody, he was on medication and was
appropriate at that time. Unfortunately, once he got custody of
Jennifer, he decided he did not need any further psychiatric
treatment, went off all his anti-psychotic medications and, in a
psychotic state, murdered both his mother and Jennifer. That
inquest, held in 1998, reflected very much the issue that I think
you're considering with regard to compulsory treatment in the
community.
I'll leave my comments at
that because we'd like to leave time for questions.
1550
The Chair:
Thank you very much, doctors. That leaves us approximately about
four minutes per caucus, maybe slightly more. We'll start the
rotation with the Liberal Party.
Mr Richard Patten
(Ottawa Centre): Thank you for joining us today and
sharing some of your own experiences at inquests. I take it
you've had a chance to study the bill. One of the ideas that has
emerged-we have had some discussion among some of the committee
members-was the idea of a preamble on the basis of the
interpretation of what this means to certain groups and certain
people, that all of a sudden the police are going to have these
incredible powers to sweep people off the streets and that this
broadens the basis of being able to deny people their human
rights.
Before us, Dr Martin and Dr
Eppel from the Ontario Psychiatric Association stated that in
their opinion they felt this bill had the most restrictive
criteria in terms of addressing the community treatment
program.
In your opinion, and based on
your own experiences, how would you position this and how would
you deal with the question of, "My God, this is expanding the
rights of officers, of police, to pick people up when they want
to"?
Dr Young:
Under the current bill the police have a number of potential
directions they can move. The first, and unfortunately one that
is taken all too often, is that they take no action. There are a
number of reasons for that, but certainly anecdotally the most
common complaint is that they see no purpose because they've done
it before and they've met with frustration and they decide they
can't do anything.
They can informally divert
the individual to the care of a relative or another appropriate
person, but again the story we hear repeatedly from the relatives
are years of trying to get help and being unsuccessful in doing
so. They can try to divert the individual to a hospital or a
physician or a mental health facility, but they've got to get
them there.
They can arrest them if there
is a Criminal Code violation, but there may not be, and hopefully
there isn't. That creates its own set of problems as to whether
one then moves them through the criminal justice system or
through the mental health system or both. They can, but right now
only under the restricted section 17, take them if they have
actually witnessed something. I think it's the grounds for the
police to act on anything else as reasonable and probable
grounds, so this is no greater power than exists with regard to
anything else.
Clearly there need to be, and
are, checks and balances on the police. They would tell you, and
I hear it from them all the time, that they are one of the most
scrutinized groups in society. There are those who would disagree
with that and I understand their points of view, but what is
being proposed is no greater than the powers that already exist.
The problem is that without that they're in a bit of a Catch-22, and certainly our
experience has demonstrated that they very often may have no
remedy. The Antidormi case is one of the saddest examples of
that.
Ms Frances Lankin
(Beaches-East York): If I can follow up on that, first
of all, I appreciate your presentation and the amount of time
you've put into thinking about specific cases and in general. You
were talking about the efforts that have gone on over the last
couple of years to educate people about the existing law, and yet
as it's interpreted by lay people and has been applied, it's been
seen as creating barriers to getting effective and needed
treatment for people. I guess that's the fallibility of any laws:
They are going to be interpreted by people.
A move to broaden in a
significant way and seeing that way will also have its
interpretation out there. I think some of the community,
particularly the psychiatric survivor community, has legitimate
concerns about what that means.
One of the things we heard
from the Ontario Psychiatric Association: In discussion there was
some agreement with the suggestion that perhaps, whether it be in
a preamble as Mr Patten has suggested or in some other way, we
clinically narrow the application of this legislation.
Although we've been provided
with testimony here that the US experience studies show that
there is an overwhelming success in the use of community
treatment orders in reducing utilization, there is contrary
analysis of the US studies. I think we'll hear later today or
this evening a different perspective on that.
One of the studies often
referred to, the Swartz study, in fact shows that only a
particular subgroup of persons with mental disabilities can be
helped under certain circumstances: long CTOs with lots of
community support. There are a lot of qualifiers there. But it
suggests that subgroup of people, not who have mood disorders but
who have psychotic disorders. When I was speaking with a local
East York group, a schizophrenia branch, they almost felt like
this law needed to be put there even for a specific
diagnosis.
I wonder if you have any
thoughts or whether you have any agreement that we might be able
to allay a number of fears as to who this law was never intended
to be used for, although with human fallibility might be used
for, if we introduce some kind of clinical narrowing of the
application of the law.
Dr Cairns:
Certainly from my review of the cases that we have conducted
inquests into, they are a very narrow subsection that, in
reflection, most people agreed were psychotic at the time. In
that regard, probably our juries are at least supportive of that
being the group we're looking at, as opposed to it being
absolutely everyone who has a mental illness. All of those people
clearly could not take care of themselves, clearly were
recognizable by any of the people who were asked to review
later.
Certainly at the Christopher
Stephenson inquest, I had between 20 and 30 forensic
psychiatrists and psychologists and they had their own views on
how the act was interpreted. Absolutely nobody disagreed that
this individual was trouble. So I don't disagree with your
comments. From our experience it would be this group of people
that we particularly focused on.
Mr Brad Clark (Stoney
Creek): If I may, the current Mental Health Act defines
"mental disorder" as "any disease or disability of the mind." The
Ontario Medical Association and the Ontario Psychiatric
Association have suggested that that definition be changed and
that it be defined as follows: "a disorder of thought,
perception, feelings or behaviour that seriously impairs a
person's judgment, capacity to recognize reality, ability to
associate with others or ability to meet the ordinary demands of
life in respect of which treatment is advisable." Do you have any
comments in terms of whether or not the definition is sufficient
as it is currently written, which would be in Brian's Law, or
whether we should be going with the OMA and the OPA
suggestions?
Dr Young:
You put us in a difficult position.
Mr Clark: I
have a habit of doing that.
Dr Young:
I'm certainly not, at first blush, opposed to what I hear from
the second definition that was given to you. I'll ask my
colleagues. It is a difficult thing to define exactly what you're
dealing with here. I think clearly there's a group that needs to
be captured, and those are the people who are a danger to
themselves and others. I would personally, at first blush, favour
the second of the definitions, but that's a personal view.
Dr Eden: If
I look back to the Antidormi inquest, Mr Michael Bay testified at
the beginning of the inquest to explain to the jury the present
legislation. As a coroner, I find that sometimes what juries
don't say is as important as what they do say. One thing that Mr
Bay stressed was the broadness of the definition. It's more than
the simple diagnosis of mental illness, that very specific group
that doctors talk about; it's broader and includes a wide range
of cognitive impairments. I think that took the jury a little bit
by surprise but they didn't comment on it. In fact, if I look at
the context of their recommendations, and this is simply what I
read into it, my understanding would be that they supported
having a definition that is reasonably broad and certainly not
limited to specific diagnoses, a functional definition of
cognitive impairment rather than a very limited one.
1600
Mrs Lyn McLeod
(Thunder Bay-Atikokan): Mr Chairman, on a point of
clarification: I'm just a little bit concerned that as we start
getting into specificity of definitions and the group that we're
trying to capture with this legislation, we need to be sure we're
using correct terminology. I'm not sure whether my request for
clarification would be to research or to legislative counsel or
just to whom I should address it. For example, my understanding
is that the legislation would be particularly appropriate for a
very narrow group of people who are schizophrenic and who are not
treatable with medication. That's very different from the
definition of "psychosis." Somebody with a mood disorder or
bipolar disorder can certainly be in a psychotic state but, as I
understand it, would not be appropriately dealt with with this particular legislation.
Of course, the definition change that Mr Clark has just
suggested, which I personally think we should be looking at,
would apply to the entire Mental Health Act and therefore would
not be exclusively applied to the group of people that Brian's
Law is attempting to address. I just would like to make sure that
as we proceed, we're focusing on terminology that accurately
describes the group of people we're wanting to deal with.
The Chair:
Ms McLeod, are you asking research to bring back some kind of
discussion paper, definitions from other jurisdictions, the
contrast of the apparent effect of changing the definitions, or
had you something else in mind?
Mrs McLeod:
I'm not, in all honesty, quite sure who to direct the question
to. I don't want to lay an onerous degree of research. I just
know that in the research I've been doing into the legislation,
there are recommendations put forward as to whom this applies to.
But even at the very least, I think we need to understand the
difference in terms of "schizophrenia" and "psychosis" and the
broader definitions of "mental disorder" which would apply to the
entire Mental Health Act.
The Chair: I
think that's a fair question to ask research. We'll certainly ask
them to bring back their thoughts on that question, if they'd be
so kind.
Ms Lankin:
Mr Chair, just one quick request of Mr Clark. The possible
proposed definitions that you just read into the record were not
available when we met with the OPA on Friday. I'm wondering if
you could share those with committee members.
Mr Clark:
Absolutely.
The Chair:
Gentlemen, that takes us to the end of our half-hour with you.
Thank you very much for the unique perspective you brought to the
committee and for taking the time this afternoon to come before
us.
Dr Young:
Thank you very much. We'd like to thank the committee for your
attention. Unfortunately, we have further engagements, so we'll
have to leave. We mean no disrespect to either the committee or
anyone else who's following us.
CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO
DIVISION
The Chair:
That takes us to our next group, the Canadian Mental Health
Association, Ontario division. We welcome them to the committee
today. Again, we have 30 minutes for your presentation, to be
divided as you see fit. Once you've settled in, perhaps you could
introduce yourselves for the purposes of Hansard.
Ms June
Rickard: Chair and members of the stranding committee,
I'd like to introduce the three of us first. I am June Rickard,
and I'm replacing Janemar Cline, who would have been here today
except for illness. I'm on the board of directors of the Canadian
Mental Health Association, Ontario division. I'm a volunteer. I
have with me today Patricia Bregman, who is a lawyer and on the
staff of the CMHA, Ontario division, as manager of policy
planning and information services; and Glenn Thompson, who is
executive director of the CMHA, Ontario division.
The CMHA, Ontario division,
thanks the committee on general government for giving us an
opportunity to present to the hearings on Bill 68 as expert
witnesses. We hope that our presentation will provide you with
valuable information. We will limit our oral presentation to
approximately 15 minutes so that we have an opportunity to
respond to any questions you might have.
I'd like to first of all
briefly describe the CMHA, Ontario division. We have included a
more detailed description of the CMHA in our formal submission.
In order to save time here, it may be sufficient to indicate that
the CMHA is one of Canada's longest-serving charities, having
been started in 1918. We structure the efforts of our volunteers
and staff to meet our overall goal of impacting mental health
services, and we provide public education to assist individuals
to avoid more serious illness through early intervention. Our
work falls into four areas: research and policy development,
support to service delivery agencies, public education and
advocacy.
We believe that one of the
CMHA, Ontario division's unique contributions is our social
research and the policy and position papers which result
therefrom. These papers are developed on a wide variety of topics
of concern to persons with mental illness, as well as to
legislators, policy-makers and administrators in the mental
health system.
In the 1999-2000 year, social
policy research was conducted in four areas. A mental health
legislative review looked at all mental health legislation in
Ontario and gathered similar information from other Canadian
provinces and other countries. The result is recommendations for
more comprehensive and integrated mental health legislation for
Ontario. A drug benefits task force studied current public and
private drug benefits programs and summarized the implications
for persons with mental illness. The continuity of care task
force prepared a paper on the role of assertive community care
treatment teams, ACTTs, in providing community care for persons
with serious mental illness, reviewed the historical evolution of
these teams and made recommendations about the role of ACT teams
in the future. The housing task force prepared a comprehensive
document on housing choices for persons with mental illness,
especially in relation to divestment of provincial psychiatric
hospitals. Some of these papers are expected to come to our board
in June for final approval. The topics will give members a
flavour of the breadth of our work.
We are much concerned with
the degree to which negative public attitudes toward the mentally
ill affect their recovery and their reintegration into our
communities. We continue to encourage the Ministry of Health and
Long-Term Care, insurers, employers, foundations and the media to
play a more active role in public education about mental illness
and mental health.
The CMHA, Ontario division, is pleased that the
government continues to move forward with the comprehensive
reform of the mental health system, focusing on community-based
services. We are concerned that the proposed legislative reforms
will put additional pressures on our already overextended system.
In our submission to the Brad Clark review, a copy of which is
included in the package we have presented you with, we
recommended that the minister provide an additional $351 million
in funding for the transition to community-based services. This
funding will be essential to implement many of the provisions in
Bill 68, as it is to any major shift to community-based care.
It is our position, and has
been throughout the various consultations, that true mental
health reform will put into place a full continuum of services,
ranging from services for persons with severe mental illness to
health promotion and prevention programs designed to maintain and
preserve mental health. This is consistent with the approach the
government put forward in Making It Happen. We strongly urge the
government to maintain a balanced approach to its mental health
reform so that all aspects of the system receive the necessary
funding.
We look forward to
continuing to work with the Minister of Health and Long-Term Care
and ministry staff to carry out the plan set out in the two
Making It Happen documents.
The Canadian Mental Health
Association, Ontario division, supports the need for legislative
reform. Our position was provided to the Minister of Health and
Long-Term Care in our submission made last month as part of the
consultation chaired by Brad Clark, the parliamentary assistant
to the minister.
Our primary recommendation
was that the legislative reform should create a new framework for
the delivery of mental health services in the community,
including mechanisms to ensure that services are available across
the province. Some of the amendments that we recommend today to
Bill 68 are directed at achieving that goal of universal access
to care.
1610
We will obviously not
attempt to discuss these amendments in detail. We will leave them
with you to review more fully. We would be happy to discuss any
of them with you or the ministry staff as you proceed through
this process.
We thought it would be
helpful to summarize the themes that you will find in our
recommendations.
Specifically, we recommend
that the mental health legislative reform:
(1) Support a continuum of
community-based services. It needs to include the continuum of
services, from services to treat the most seriously mentally ill
to health prevention and promotion.
(2) Amend the existing
legislation to make provisions which are currently subject to
misunderstanding more clear to everyone, from the individual to
health practitioners. There is universal agreement that many of
the existing provisions are confusing.
I now pass this
presentation over to Ms Bregman.
Ms Patricia
Bregman: As you can see from the length of our
recommendations, we couldn't possibly cover all of them in half
an hour. I think you'll see that that some are very technical and
some are more substantive in nature. I'd like to repeat the offer
to assist the committee or the staff at any time.
Despite the list, we're not
sure that it's comprehensive. As you review the legislation over
the next few weeks, it's likely there will be additional
amendments in Bill 68 that are identified in areas which are
unclear or which conflict with other statutory provisions.
We think that Dr Young gave
quite a good lesson in how important it is to make sure that the
legislation is clear, because we can pass what you think is going
to be in the new legislation, and yet if people don't understand
it, it's not going to work.
We've also provided you
with several papers prepared earlier by the CMHA, Ontario
division, and the national CMHA on issues relevant to Bill 68,
including community treatment orders. In particular we encourage
you to look at the literature reviews that we did in January and
February of 2000 looking at community treatment orders and the
links between mental illness and violence, as well as our
submission to Brad Clark.
As you know from previous
submissions, the CMHA, Ontario division, has taken a formal
position opposing the use of community treatment orders. Our
position is set out in the documents we have provided you with.
In this submission our effort is focused on how to make community
treatment orders work, and we have presented many proposals and
important detailed amendments on all aspects of the
legislation.
We're here to help you make
effective legislation, not to go back. You've got our position.
We're now on a different page.
On reviewing these
provisions, we have identified a number of areas in which
amendments are necessary. However, before briefly highlighting
the types of recommendations we are making, we want to comment on
the provisions relating to community treatment orders from the
perspective of workability.
As we stepped back and
looked at them as a totality, it appears as though there are some
major problems with the way in which they are structured. We
acknowledge that our interpretation may be incorrect; however,
the fact that we can draw the conclusions that follow indicates
that there needs to be more clarity in the legislation. We're
offering you our analysis to assist you.
Looking at the legislation
as a whole, it seems to run counter to sections of the Health
Care Consent Act. The community treatment order is based on
consent by substitute decision-makers, even though there is no
apparent authority for them to give consent to the order. For
your assistance, we'll give you our analysis.
There is a distinction
between "treatment" and "order" made in the legislation. The
terms "community treatment order" and "community treatment plan,"
however, tend to be used interchangeably. They're not. There is a
definition for
"community treatment plan" but not "community treatment order" in
the Health Care Consent Act.
Bill 68 amends the Mental
Health Act to adopt the definition of treatment found in the
HCCA, so we've now got a linkage between the two acts. Under that
definition, "treatment" does not include admission to a hospital;
it does not include an assessment for capacity. The fact that
they are not subject to the legislation does not mean that
consent is not needed. The common law still requires informed
consent. The problem arises because substitute decision-makers
appointed under the authority of the Health Care Consent Act can
only consent to treatment that falls within the scope of that
act. There is no common-law power for that particular group of
substitute decision-makers. Similarly, only attorneys for
personal care or court-appointed guardians have the authority to
consent to treatment falling outside of the Health Care Consent
Act, assuming they have been given that authority
specifically.
There is no authority under
the Health Care Consent Act to allow a substitute decision-maker
to consent to a community treatment order, since the definition
is found only in the Mental Health Act. It includes the plan, but
isn't the plan. The community treatment order, as defined,
includes terms and conditions that are similar to the ones for
admission to hospital.
To take you to the
provisions of the Health Care Consent Act, you can consent to
admission to a hospital, under that act, where treatment is to be
given. But if an incapable person objects and it's a psychiatric
facility, you cannot have a substitute decision-maker consent to
admission. If you take that analogy, if a person would object to
the community treatment order, and you see it as similar to
hospitalization, then the substitute decision-maker would not
have the authority to override that. I could talk about the
lawyers in more detail, but I'm trying, in a sense, to give you a
picture of where we see some problems in how it's structured.
I'm going to skip over part
of it to give you time for questions. I also want to point out,
though, because language is so important, that there is some
confusion on the use of the term "order." We're all familiar with
physicians' orders, which are written to direct specific
treatments. The term "order," however, can also be a legal order
which is enforceable. I think it's critical that it be clear
which one that is, because they have very different implications
for rights advice, and you'll be hearing from somebody from the
US later. But it's important to point out that where a community
treatment order is used in the US, it is an order and is granted
by a court or tribunal in most cases.
I'm going to skip down to
page 18 and talk a little bit about some of the proposed
amendments we want to make. Some of them deal with establishing a
core set of mental health services that must be available through
the province. Again, we think it's critical to have universal
access to services.
The second is to require a
two-year review of community mental health services, including
community treatment orders, to determine if they are effective
and for what population. It's important that resources be used
effectively, and this type of research would support a best
practices approach to service delivery.
In terms of the amendments
that deal with inconsistencies in the legislation, we can use as
an example the proposed subsection 15(1.1), which allows a
physician to issue an order for an assessment if the person is
apparently incapable, provided the substitute decision-maker
consents. We propose that the word "apparently" be removed. The
physician should either find that the person is capable or
incapable. Under the Health Care Consent Act, a substitute
decision-maker has the authority to make substitute decisions
only for a person who is found incapable. So that section, as
written, would not work.
Finally, throughout the
document, in our April submission to the mental health
legislative review, we raised a number of questions where it's
not clear how the provisions in the legislation will actually
work in practice, where it's not clear what is intended by the
section. We know from experience that legislation that is clear
and easy to understand is far more likely to be effective.
We hope the government will
consider our questions carefully and use them as a way to
identify sections where changes may be made for purposes of
clarity. I think I'm going to stop, unless people want me to go
on, and leave you some time for questions, because I see the time
is short.
The Chair:
All right. Thank you very much. That leaves us four minutes per
caucus. This time the rotation will start with Ms Lankin.
Ms Lankin:
Thank you. We all appreciate so much the amount of work you've
put into this and the extensive recommendations you're making. I
assure you we'll go through them in detail. Just picking up on a
couple, through the course of these hearings I have been
advocating, preliminarily at least, some provisions to institute
a minimum level and type of service in all regions of the
province. I think that's in accord with what you're
suggesting.
I have also been raising a
concern about the word "apparent" in "apparent incapacity."
Doctors have to find people capable of giving consent every day,
and I think that sets a different legal standard. I didn't
understand why that was included.
One of the things I have
also been proposing is that we establish something that might be
called the office of the mental health advocate-like the office
of the child advocate-different and apart from the Psychiatric
Patient Advocate Office, which plays a different and important
role, but one that would look at the system overall, one that
would have the job of monitoring and reviewing the system,
reviewing these kinds of legislative changes and how they're
being implemented and how they're working, and reporting back to
the public and the Legislative Assembly through the ministry to
ensure there is accountability.
For example, one of the
things I've read-and I think we'll hear later about the US
jurisdiction-is that while many have legislative frameworks like this, the
laws are in place but they've abandoned the use of them because
they found them impractical. It would be good to have a
monitoring system in place. Do you have any thoughts or comments
about the establishment of such an office?
Ms
Bregman: I think we would support that type of central
coordinating body. We do have a reference in our brief to having
some system in place that will make sure services are available
and able to be utilized by people.
One of the complaints
people are constantly making is that they seek service and don't
get it. I think it's very important for this committee to
remember in deliberations that this act is not only about the
very small number you're seeking to have mandatory treatment
imposed on, but you really want to make sure that this act makes
services available for people who are voluntarily seeking service
as well. There is a large portion of the public who want services
and right now are facing difficulties getting them in parts of
the province.
1620
Ms Lankin:
In fact, one of the concerns you and others have raised is that
those under direction to have mandatory treatment where scarce
resources exist might in fact bump people seeking voluntary
treatment, and there could be a problem.
Ms
Bregman: We have recommendations in here to deal with
that, because we want to make sure that does not occur, that we
don't shift people out.
Ms Lankin:
Another monitoring provision I've been thinking about is
triggered by the section that says CTOs can only be put in place
where community resources are available. Wherever we find they
are lacking, I think there should be automatic reporting so that
we see those problems. I guess that speaks to the recommendation
you put forward that over $300 million needs to be invested in
community resources. Do you see that as necessary to making this
legislation work and being effective?
Ms
Bregman: Absolutely. There is transitional funding, but
you're going to be putting a large impact on the system by
suddenly bringing into the system people who are currently
outside it. It's going to take a lot of money for education, to
make sure the services are there, for monitoring and for quality
assurance. Putting together this kind of system is hard.
I should say that one of
our recommendations is that when you pass this you give about a
year to implement it. Don't have this bill come into effect the
day it's passed, because you'll create chaos that I think will
undermine all your efforts. It really is going to take a lot of
work. I think there's a lot of spirit of co-operation out there
of people who want to make it work, but it's going to take time
and it's going to take a lot of money.
Mr Toby Barrett
(Haldimand-Norfolk-Brant): Thank you for your
presentation. You've indicated today that you're focusing on how
to make community treatment orders work, or how to enable us to
come up with workable legislation. You raised the issue of a
person's substitute decision-maker and the issue of consent.
You've raised a problem that basically under the Health Care
Consent Act, if an incapable person objects to admission and
their substitute decision-maker does give consent, that admission
cannot occur. How do we get around that problem? I got lost in
the legal interpretation. The proposed act, I assume, gets around
that problem. Are you suggesting it doesn't?
Ms
Bregman: It doesn't, actually. It doesn't deal with that
problem. You'll see in our brief that a number of provisions
aren't dealt with. One that might interest the committee is
section 11, which says that even if somebody needs to be admitted
to a hospital, the hospital doesn't have to admit them. One of
our suggestions is that you may want to look at whether something
has to be done about that provision, because when you read the
inquests you'll see a lot of people being turned away from
hospitals and then dying. I think you'd have to get a legal
opinion as to what you can do about that provision. We can't
really give you that legal opinion. We're pointing out that here
is a problem, but I think legal counsel from the ministry will
have to help you sort it out, because there's a lot of balancing
to be done.
Mr
Barrett: Certainly on the hospital admission, any
psychiatric facility would do a comprehensive assessment. It's
not a fait accompli that someone shows up at the door and is
automatically admitted to the hospital. In fact, much of the
purpose and reality in other jurisdictions that have community
treatment orders is that there's much less hospitalization.
Is there anything further
in this legislation, or changes that should be made with respect
to protecting the rights of people who would be subject to
community treatment orders?
Ms
Bregman: We made a number of recommendations. For
example, there's nothing in this legislation that deals with the
confidentiality of the records of people who are in community
mental health services, let alone under a community treatment
order. So there will need to be changes to make sure the
information is protected and not shared inappropriately. There
are issues about the quality assurance of the services, issues
around the fact that you seem to have a community treatment order
that has two components; one is services and one is supervision.
But there's not a lot in the legislation about how that
supervision component of the order is arrived at.
Finally, we're very
concerned about the liability issues relating to families. To be
honest, I can't recall the section, but there is a provision in
here that says that the substitute decision-maker or the
individual has to undertake to comply. We think that's an
incredibly heavy burden on the family or the substitute
decision-maker. Obviously, if the person were going to easily
comply, they wouldn't be in that situation. I think to say that
the family suddenly gets the whole burden is quite
problematic.
At the end of the day, I
guess what we would suggest to you-and this is not an attempt to
say, "Don't legislate"-is to really give some thought to what
we're recommending, because when we went through the legislation
there were so many areas in which nothing has been done or there are gaps or
inconsistencies. I think you would lose so much by passing bad
legislation that we hope you'll really take a look and think
about what we're proposing in here. All of it is intended to be
constructive and helpful. We're certainly happy to continue to
work with you, but we would give that warning.
Mrs
McLeod: I appreciate your presentation and the depth and
thoroughness you've gone into, and also the work you've done
prior to this in the background information and the research on
community treatment orders that you provided to us.
I'm not sure where to
start, because I'm trying to read quickly through the amendments.
As you say, many of them are very detailed and very technical. I
do want to note one which is of a less technical nature and then,
with the Chair's permission, I know my colleague has a question.
I'd like to ask for some clarification from the committee as to
how these amendments generally will be dealt with.
I want to note
recommendation 6, that the legislation should be amended to
prohibit the inclusion of physical or chemical restraints as part
of a community treatment plan. Obviously that comes from the
concern we've heard that enforcing compliance will mean
inevitably using force. There are alternatives to using force to
enforce compliance. Is that fair?
Ms
Bregman: Yes. I think it's that and the fact that the
Mental Health Act recognizes there's a risk in the use of
restraints. There have been a number of deaths, particularly in
recent years. There are all kinds of controls put on these
restraints in a hospital. Using them in the community, none of
those controls will be available, and so the risk of harm and
danger and potential death increases significantly. We think it
needs to be made very clear that a community treatment order is
not about restraint, which is not treatment. That's really
important. Restraints simply restrain somebody; they're not about
treating them.
Mrs
McLeod: You also mentioned a two-year review. Is that in
your amendments?
Ms
Bregman: It is in the amendments.
Mrs
McLeod: I'll find it then.
Ms
Bregman: To be honest, it will probably say two years,
but we are recommending ongoing review. I think it's important
that you do something to make sure it actually works.
Mr Patten:
This is an enormous amount of work on your behalf, and obviously
I've not had a chance to go through it. However, I would like to
ask whether you've had the benefit of the experience in
Saskatchewan, from one of your sister provincial divisions. While
their experience is relatively new, has that been of use to you
as you look at this legislation?
Ms
Bregman: It's been of help, but the reports we're
getting back are that they have very little use and they're not
finding it particularly helpful, which is why we suggest a
review. If you look at the literature review we did of the
community treatment orders, for the most part there really is no
evidence that they are effective. It shows that what is effective
is intensive, coordinated services and making sure those are out
there; as opposed to the mandatory component, making sure that
anybody who needs and wants the services can get them when they
need them.
1630
Mr Glenn
Thompson: I guess what I would infer from the
Saskatchewan experience-and it's important to realize that their
legislation is different from the starting point. So when you
pile on these different amendments, you have to sort of compare
where each one begins, and they are in a different place than we
are here in Ontario. But what I'd infer from it is that at least
they picked their target population and they're clear about who
they're attempting to intervene with, and it isn't very many
people. And lots of protections and all that kind of thing are
applied.
Every psychiatrist in
Saskatchewan has now used a community treatment order, as I
understand it. So they can be made to work there. I think a lot
of the discussion we've heard, both here today and about this
piece of legislation, is that we're not quite sure what doorway
we're trying to open to which event. Some people have presented
to you the suggestion that this legislation ought to be applied
to virtually all persons who have a psychiatric disability. I
think it's really important for the committee to be absolutely
clear about who this is intended to affect before you go in.
Regardless of the impact on individuals, you're liable to have a
system wanting to expend tremendous amounts of money on people
who don't need it for this part of their care. They may need it
for a lot of other things.
Mr Patten:
Good point.
Mrs
McLeod: Mr Chair, I know this may seem a little unusual,
but the way we're going about dealing with this legislation is a
little unusual. I think one of the reasons we're having hearings
before we've had second reading is so we can look at how the
legislation could incorporate some of the recommendations that
have been made.
From the perspective of the
opposition-I'm not sure if Ms Lankin would agree-the technical
amendments here are a bit overwhelming to deal with. I think some
of them would be of real concern to government because of the
inconsistencies CMHA has pointed out between, for example, the
substitute decision-making authority that's built into Brian's
Law and the inconsistency with what is currently in the Consent
to Treatment Act.
So I'm wondering, before
the committee hearings conclude, whether it would be possible to
get some comment from Ministry of Health counsel or legislative
counsel to the committee as to how these amendments might be
approached, might be dealt with, might be incorporated-if we
could understand the ones that appear to be totally out of sync
with what the government is seeking to do, and if there are
others that would be really important technical changes. It would
be enormously helpful, and it would save a lot of duplication as
we look at preparing amendments, if we knew there were areas
where the government wanted to address the recommendations that
are here.
Mr Clark: At the last meeting,
Frances, myself and the rest of the committee talked about it.
I've asked the ministry counsel to work with all parties. So if
you have proposed amendments or if you'd like to see some changes
or you have some confusion about a specific clause because of the
technical wording of it, feel free to contact the ministry
counsel. They will work with you on your amendments. They will
give you the ministry's perspective on it so that you can prepare
your amendments and come back to the committee with them.
The Chair:
Perhaps, if I might, I think Mrs McLeod was asking to go one step
beyond that. When a group like CMHA brings forward their own
proposed amendments, the ministry legal counsel might develop a
response rather than force any of the parties to independently do
their own research and try and reconcile the difference.
Mr Clark:
I'd have no difficulty with that.
The Chair:
Thank you very much for presenting not only your oral
presentation but a very detailed written brief as well.
Ms
Rickard: I would like to thank the members of the
committee for listening. As we said before, we're very eager to
work with government and to assist you in any way we can.
The Chair:
That takes us to our next presentation this afternoon, and that
will be from the Psychiatric Patient Advocate Office. We would
invite the representatives from the advocate office to come
forward to the witness table.
Mr Clark:
If I may, with respect to talking about the amendments and
suggestions in the briefs that are coming in, perhaps we might
want to talk about scheduling a time at the end of the hearings
so that we have an opportunity for ministry counsel to come in
and talk about all the suggestions and changes and their position
on them, and we can go from there.
The Chair:
All right.
Mr Clark:
So that we're all together as one committee being briefed.
Mrs
McLeod: That sounds like an excellent idea. Could I
just-and I apologize, but I have to be in Brantford fairly
shortly. I'm sure there will be some amendments we may want to
propose that the government may not want to bring forward. I
don't know that, but again, you're suggesting we meet together,
talk about what amendments are jointly coming forward prior to us
going to legislative counsel with any separate proposals for
amendments?
Mr Clark:
No, each caucus can do their own thing in terms of which
amendments they would like to look at. I'm suggesting that at the
end of all these presentations we get together with ministry
counsel for a briefing on all the requests, amendments and
recommendations we've received and some of the amendments you've
proposed, so we can put it all in one package.
Mrs
McLeod: With that in mind, it would also make sense if
we did hold back putting forward amendment proposals to have
legislative counsel draft them until after that kind of meeting.
Again, I'm thinking about the duplication. So if we could be
assured that we'd have time to present proposals to legislative
counsel subsequent to that meeting, that would be really
helpful.
The Chair:
I think that's reasonable. If I may, we'll leave it to the
subcommittee to find a time that is mutually convenient and we'll
make sure that's one of the guidelines we try to incorporate.
Mrs
McLeod: Thank you.
PSYCHIATRIC PATIENT ADVOCATE OFFICE
The Chair:
Sorry about the momentary delay. Thank you very much for joining
us. Again, we have 30 minutes for your presentation today. I
wonder if at some point early in your presentation you could make
sure you introduce yourselves for the purposes of Hansard.
Mr Vahe
Kehyayan: Good afternoon, Mr Chair and members of the
committee. My name is Vahe Kehyayan, director of the Psychiatric
Patient Advocate Office. With me are Mary Jane Dykeman, legal
counsel, and Barbara Cadotte, systemic policy adviser of the
PPAO.
We welcome the government's
plan to consult with the community regarding the amendments to
the Mental Health Act and the Health Care Consent Act. We have
taken part in the next step, the consultation process, and have
made written submissions in that respect as well. You have before
you our submission, which outlines a number of issues with
respect to the legislation and our feelings about it.
By way of context for those
members who do not know the PPAO very well, the PPAO has been
providing advocacy and rights advice services in provincial psych
hospitals since 1983, after the Minister of Health at the time
introduced us in the Ontario Legislature for this specific
purpose. It was an all-party agreement at the time that the
office would exercise its advocacy mandate in independence,
without any interference from the ministry or government. This
independence is assured through a memorandum of understanding
which is signed between the program and the minister. At the
time, I believe it was Ms Lankin.
Ms Lankin:
I remember that.
Mr
Kehyayan: In this manner, the PPAO is not here to speak
on behalf of the ministry but rather on behalf of the mentally
ill patients who have become clients of the PPAO in all these
years. Annually we represent or respond to about 7,500 cases of
rights advice situations triggered under the Mental Health Act
and the Health Care Consent Act. These rights advice situations
may involve as many as 9,500 contacts with the patients. We also
respond to 4,500 advocacy cases each year, related to the
therapeutic, legal or social aspects of patient care, treatment
or observation.
These advocacy concerns
arise from a compromise and/or threat, or potential threat, to a
patient's rights or entitlements under mental health legislation
or the Charter of Rights and Freedoms.
So altogether, the PPAO on
an annual basis has contact with 15,000 patients, and these are
documented situations.
It is on the basis of this breadth of experience and knowledge
that we have prepared our submission, which outlines how the
proposed amendments, if carried through, would affect the
targeted population.
For specifics on these
concerns, I'm now going to turn to Mary Jane, who will take you
through the high points of our submission. We'd be pleased to
answer any questions you may have.
The Chair:
Thank you very much. We've got lots of time for questions, let's
say eight minutes per caucus.
Ms Lankin:
They're not finished yet.
The Chair:
I beg your pardon. I jumped the gun there.
1640
Ms Mary Jane
Dykeman: I realize we have limited time, so I'd just
like to touch on a number of points in the submission. We have
provided you with a summary as well. We thought we would first
look at a couple of general themes before moving to speak about a
few select amendments. Obviously it's not possible for us to sit
here today and go through the provisions clause by clause; we
thought the themes first and then a few things from the Mental
Health Act and the Health Care Consent Act.
The first theme is
legislative reform. Obviously, as a provincial body that looks
out for the rights of psychiatric inpatients in the provincial
psych hospitals, we've been watching very carefully to see what
type of legislative reform would be forthcoming. We recognize it
is part of this comprehensive mental health reform that's
required.
When Dan Newman did his
report some time back, he set out several items about the
legislation having to support the "creation of an integrated and
coordinated mental health system" for both the hospital setting
and in the community-very important to us.
Beyond that, one of the
most important ones we have to focus on is the access to
services. We get calls all the time from individuals, both in the
hospitals-we do not have a public mandate per se, but we field a
lot of the very general calls from individuals who are looking to
remove some of those barriers.
Then lastly, of course, the
emphasis on public safety, which I'll speak to in a moment.
Our only concern is that
the proposed amendments may not cover the full realm of the
legislative review that we understood might occur. I think the
biggest thing is that the barriers have to come down. It should
be serving the needs of every Ontarian facing a mental illness
and not simply that small category of the seriously mentally ill
who would be taken in by the community treatment order
scheme.
Moving on briefly, I will
say that we have always felt that while the present legislation
is not without need of some reform, it is adequate. We've always
thought that the key is education. I know there's been a fairly
widespread education movement at the behest of the government in
the form of Michael Bay's education project. He has been on his
road show for quite some time and I think some of his findings
confirm what we see. We get a lot of calls from the public, from
rights advisers in schedule 1 facilities, from concerned family
members, saying, "We're not really sure how it all plays out." I
think when we turn to inquest recommendations and the like,
education is always needed.
The lack of resources in
the community is the second theme we've looked at and is another
one that the Ontario government has pledged to address. One of
the essential things we need to be focusing on is what's going on
right now. We have the implementation of ACT teams. We would like
to see those types of things have a proper evaluation, given the
resources that have been poured into them, before moving on to
what we might consider more coercive measures.
The other aspect, in
dealing specifically with the CTO scheme, is the enormous number
of resources that will be required to put it in place:
implementation, education, support, enforcement and the like. It
raises a couple of concerns. By now I'm at the top of page 6, and
we've set out a couple of them. We would hope that that type of
scheme does not take the place of improving the supports that
need to be in the community for everyone. We don't want to see it
divert services and resources away from the other mental health
consumers who are not subject to the CTOs. Those may be people
who are already in the community or who would like to be residing
in the community. The focus of scarce resources on compliance and
policing medication is fairly troubling as well. Instead, we
think some of the focus should be on improving and extending
access to the best treatments that are available.
I presume that Patricia
Bregman, although I didn't hear her full presentation, pointed
you to quite a bit of literature. We've made a reference to that,
so I'll move on from there.
The emphasis on public
safety has certainly been a priority in the mandate of this
government. The only concern there of course is that we're
dealing with a population that is heavily stigmatized already. We
would hope that the emphasis would be on community services,
recognizing the fact that there is scientific evidence to show
that the mentally ill are more likely to be the victims of
violence than the perpetrators. I in no way undermine some of the
very tragic situations that have played out across the province,
which may be the reason for sorting out this type of legislation;
by no means, but it's always a commitment on our part to try to
take away the stereotypes. Unfortunately, in the course of
Brian's Law, we have seen some of those stereotypes
reinforced.
Informed consent: This
permeates both the Mental Health Act and the Health Care Consent
Act. A quick comment: It's obviously a doctrine that's well known
at common law. It's been codified in the Health Care Consent Act
in Ontario. It's supported in the case law, and I've cited some
of it here. We don't need to go into any detail-Malette v
Shulman, for example. You may be familiar with the case of a
Jehovah's Witness who was a card-carrying Jehovah's Witness,
wanted to refuse a blood transfusion, had the support of the
daughter while her mother was in an unconscious state, and the
physician proceeded to treat her in spite of this prior expressed
wish. He was found to be liable for that act. I raise that
because obviously it ties very strongly to the discussion later about the
Health Care Consent Act and I should say the hesitation with
which we would want to overturn a prior capable wish.
The last theme is the
charter. I wouldn't purport to be providing you with legal
advice. You have very able counsel to do that and you'll be
seeking their input, I'm sure. But when we come to section 7,
life, liberty and security of the person, we've often focused on
security of the person as being of great importance-the right to
bodily integrity, the right not to have forced treatment. I
understand that the thrust of the proposed amendments could turn
the charter argument to the issue of liberty.
I recognize-and I think
we've had anecdotal evidence even in the calls we receive and
perhaps in the clientele we serve-that there could be a situation
where a person has made a prior capable wish not to be treated
with psychotropic medication. They might find themselves
incapable, in a provincial psych facility or a schedule 1
facility. A prior capable wish is there. Nobody will touch it.
Family may not be there to say that it was not a capable
wish.
In a particular case, we
recall that the individual ended up with a very poor quality of
life, in restraints 24-7, really looking at declining prospects
down the road without some kind of action. As I recall, I think
eventually a family member was found, the capable wish went
before the board and it was found not to have been a capable
wish. The person was treated. It was one of the success
stories.
I point to it because I
think we have to acknowledge that those situations exist where
circumstances might change, better medication might be available.
As it stands right now, a substitute decision-maker can take the
prior capable wish to the board and ask for permission to depart
from the wishes. What the Health Care Consent Act would propose
to do, through Bill 68-I realize I'm skipping ahead but I think
it's really integral to talk about it now-is to allow the
physician or the health care practitioner to take that forward
and have it overturned. There may be sound reasons in rare
circumstances to do that, but I would just urge some caution in
recognizing that abuses can occur.
One example we've set out
in our brief is about the use of ECT, electroconvulsive shock
therapy, where an individual might have said in the past, "Look,
there is not any possibility that I would ever consent to it."
The inevitable happens, they become incapable, and then there's
some kind of discussion about whether or not-at least under this
legislation, not only would the substitute be able to go and ask
to depart from the prior capable wish, which we hold as an
inherent value, but also the physician could ask.
I think it opens up a
certain number of abuses. I realize there is some support in case
law. We haven't gone into that here. I'm sure you will have heard
a bit more about the Benes case, but it's just a caution.
1650
Speaking to the amendments
to the Mental Health Act, we've picked out several. You may have
heard quite a bit about the removal of the word "imminent" from
the proposed section 15(1)(f) and throughout. We haven't done an
exhaustive analysis of every section where "imminent" would come
out, but I think some of the argument would apply.
It's our position that
what's in sections 15, 16 and 17 right now, the means by which a
person can be brought in for a psychiatric assessment, are quite
reasonable, education being the key. Families need to know how to
get to a justice of the peace, if that's an option, what
information to take forward. Physicians need to be aware, and
should be aware through their colleges as well, that every
physician in the province can sign a form 1 and have a person
brought in for psychiatric assessment, and also the powers of
police-peace officers in the act-to know when it's appropriate to
bring that person in, and I've heard a number of individuals say
publicly that it is a fairly low threshold, but that doesn't
assist us unless the education is out there.
A second thing: past
successful treatment as grounds for psychiatric assessment under
sections 15(1.1)(e) and 16(1.1)(e) as well: Again it expands the
criteria to allow a person to be detained against their will.
This is in the case of a physician who wants to have a person
detained, or the case of the justice of the peace. Our view is
that once you combine those two elements I've brought up, once
you remove "imminent" you lower the threshold, and then you also
have this means of bringing the person in by virtue of a
successful treatment in the past, some of those rights are going
to be eroded.
I want to move on very
quickly because I realize I'm taking up a fair share of your
time, to the quality of rights advice. I understand some other
individuals will be speaking to this today, so I won't belabour
the point.
One of the concerns is, we
do some training of the rights advisers in the schedule 1
facilities. We have our own rights advisers and patient advocates
in the nine provincial psych hospitals and at Queen Street which
is a former provincial psych hospital, now part of the Centre for
Addiction and Mental Health. That is their job. The rights
adviser provides rights advice, whereas in schedule 1 facilities,
in the psych wards of the public hospitals, you have individuals
who have rights advice as an add-on to their duties.
The only caveat, in
accordance with the legislation, is that they not be part of the
treatment team. There's a list. That's fine, but when you add
that duty on to a person's regular duties, you might have a
social worker not involved with the particular individual who
provides rights advice; it could be any person in the hospital
providing it. One of the concerns is a very high turnover, not as
much from our point of view of having provided quite a bit of
rights advice training over the past couple of years, but we see
by the numbers that the high turnover changes the quality of
rights advice that's delivered.
I personally field a lot of
the calls from the rights advisers in the schedule 1 facilities,
and my assessment is that they don't even have the exposure to
the number of rights advice situations. There are eight
situations at law where rights advice must be given. So it is a
concern that there's a
different standard for public hospitals. The reason we raise it
here is that there does not seem to be in the proposed amendments
a real quality assurance mechanism with respect to rights
advice.
A couple of other comments
about rights advice as well: We notice that rights advice is
given upon renewal, which is excellent. When a CTO is renewed,
rights advice would be required. But it does say that as long as
a physician has examined the person within a certain time frame,
the CTO can be renewed even if the person is in the community.
What's lacking, from our point of view, is what happens in the
community. I heard Patricia Bregman speak to some of the abuses
that can occur in the community, and I think this is one area
where we would have to ensure that the same quality of rights
advice, and rights advice itself, would be available to the
person. It's easy when the rights adviser gets notice from the
physician, which they must have, walks down the hall to the unit
and provides that service. It's a whole different story if the
person is fairly far-flung from the facility.
A technical item, rights
advice to the person or the substitute decision-maker, and I'm
now at the bottom of page 12: It's the proposed section
33.1(2)(e). We weren't certain whether this was a drafting error.
We didn't know whether it meant to say that rights advice should
be given to the person and their substitute, which would be
fairly consistent with the recent case law in the Court of Appeal
of Ontario. It says advice to the person or the substitute, and
there's always a concern that you would choose the substitute in
lieu of the individual.
If it were to be "and," it
raises a different conflict from the point of view of who will
provide the rights advice to the substitute, because in the Court
of Appeal they weren't entirely clear. It was felt that perhaps
the duty to provide information to the substitute about their
duties and obligations would rest on the person who was proposing
the treatment. It made sense to us.
If it's to be the rights
adviser, then you may create a situation of conflict, and that is
a concern. The rights adviser, by way of example, might be the
person who provides rights advice on the one hand to the
individual who wants out of the particular item that's in front
of him or her, and then on the other hand, with the substitute
decision-maker you might be asking that the substitute be given
information by the same person, with the end result being that
the rights adviser would be assisting two parties who could be
adverse in interest.
It's not certain to say
that every family member who becomes a substitute decision-maker
will be averse in interest to what their loved one would like,
but we know it happens. It happens all the time. Families would
like to see their loved ones treated; you may have an individual
who does not want to be treated. In this new scenario, with a
prior capable wish being set aside, you might have the rights
adviser in a situation where he or she would be providing advice
on how to deal with that situation to the individual who'd be
affected, whose prior wish would be revoked, in essence. On the
other hand, you would be having that rights adviser assisting the
individual to act against the wishes of the patient. So it does
potentially raise a conflict. Again it may be a drafting issue
and we'd certainly be happy to know and to assist if we could on
that.
We also notice that rights
advice can be given to a capable person in the case of a
community treatment order, and we'd like to point out that that
is fairly contrary to the tenor of the rest of the legislation.
Rights advice, to my recollection, has been set up as a means of
providing information to an individual who's incapable in those
eight rights advice situations I described earlier.
The right to legal counsel:
This is the proposed section 33.1(5): It's probably not a bad
idea in many ways. If we take the case of the Court of Appeal one
step further and we say that the substitute must have information
about duties and obligations and we've codified that they must
have the right to legal counsel, I think it will have
implications for legal aid.
It may be the case that
you'll be hearing from the Ontario legal aid plan, or whatever
its new name is, about the impact this will have. CTOs, in and of
themselves, will likely place a greater burden, especially now
that you have a system where the clock starts ticking right away.
People will be likely to challenge their situations much earlier.
We're not saying that substitutes should not have that access to
legal aid; I think it's just a note of caution, to the extent
that the burden on legal aid will be there.
It may translate into more
people going to the board, and a greater burden on the Consent
and Capacity Board. Presumably they've had the heads-up; they
know that will occur. Perhaps steps are being taken to ensure
they're properly resourced. Our concern is that for our clients,
who occasionally have some difficulty accessing legal aid even
with the assistance of the rights adviser, where board hearings
may not happen quite as quickly as they should, the burdens will
be increased.
I think I've already
covered the amendment to the Health Care Consent Act. We've set
out quite a bit of detail about how the act works, just for
reference. The main item of course was the expansion to allow a
physician to ask the board to have the substitute depart from the
prior capable wish.
I think it is a fundamental
issue. It may survive some charter challenges, and it has been
before the courts. We'll see where that goes. It sends a message
when you can say to the public, not only in terms of treatment
which is what we've concentrated on, but also with respect to
admission to a care facility, personal assistant services, and
the like-the fact is, people like to think they can make an
advance directive, a living will. We encourage that. In this
case, I think it would be quite a surprise to many people in the
province to know that, "Fine, you can go ahead and do it, but in
fact after you're incapable there are a few parties who can step
in and overturn what you wanted to have happen."
1700
I leave it at that. I'm not
sure whether Barbara has anything to add, but I would like to
leave some time for questions as well.
The Chair: We've got about four
minutes actually. Normally when it gets that tight we give it all
to one caucus but I don't want to necessarily. The rotation this
time would have the government start. I'll ask Mr Clark whether
he wants all that time or whether he wants to share it.
Mr Clark:
I'll defer to my colleague.
The Chair:
Ms Munro?
Mrs Julia Munro
(York North): I guess it's four minutes. Is that OK?
Mrs Marie
Bountrogianni (Hamilton Mountain): I'll defer.
The Chair:
Frances has a burning question.
Mrs Munro:
Oh, she's got a burning question?
The Chair:
We'll split it between the two of you.
Mrs Munro:
Then I won't defer my question. We're getting fewer opportunities
here.
A quick question, because I
know you've covered a great deal of territory and I'm sure you
were here for the conversation that took place a few moments ago
with regard to the opportunity that we as a committee will have
to be briefed on some of these issues. I just wonder, since much
of your presentation and concern deals with the CTOs, and part of
the whole reason behind this was to avoid unnecessary
hospitalization, to be able to provide flexibility for treatment,
can you give us one or two ideas that you feel would provide that
additional flexibility for patients?
Ms Barbara
Cadotte: I'd just like to make a couple of comments
about that. As we mentioned earlier in our submission, we
recognize that the government of Ontario has spent a great deal
of money in terms of developing community resources, particularly
assertive community treatment teams, which are still in the
process of being implemented across the province. We feel that
this is a very interesting approach to providing intensive
support and assistance to people with serious mental illness in
the community, and we think that we're so early in the
implementation process that we should have the full deployment of
teams up and running and working with their full complement of
recipients, and have that evaluated prior to moving forward to
more coercive measures.
The Chair:
Thank you. Unless somebody can pose their question in a minute,
we've used the time.
Ms Lankin:
It's physically impossible for me.
The Chair:
I didn't want to say that, Ms Lankin.
Thank you very much for
your very detailed presentation. We appreciate your taking the
time to come before the committee today.
CENTRE FOR ADDICTION AND MENTAL HEALTH
The Chair:
That takes us to our fourth presentation this afternoon, the
Centre for Addiction and Mental Health. We invite the two doctors
from the centre to come forward.
Good afternoon and welcome
to the committee. You have 20 minutes for your presentation, to
be divided as you see fit between either your oral dissertation
or question and answer.
Dr Paul
Garfinkel: I'm Paul Garfinkel, I'm the president-CEO of
the Centre for Addiction and Mental Health. This is David
Goldbloom, physician-in-chief.
I'm going to make a few
introductory comments and then I'll turn it over to David, who
knows what he's talking about. I'm going to focus in on the CTO
aspect of this. I think you've heard already that there is
considerable disagreement in the field with regard to the
introduction of these, and our centre has gone through a process
that reflected this disagreement. It was very hard to come to a
consensus on this issue, but there are a number of issues in
which a consensus can be readily achieved.
First of all, the urgency
of creating a full continuum of accessible, high-quality care for
people with mental illness and substance abuse is imperative.
Secondly, we would see
within that continuum a very limited role that CTOs may possibly
play with a small number of people, but that the CTOs must be
seen as a last resort for a minority of cases and invoked only on
a clinical basis.
We also see a need for
safeguards, and we find it regrettable that so much of the
discussion about CTOs has focused on the issue of violence. The
chronic, seriously mentally ill account for 3% of the population
of Ontario and probably account for about 4% of the violence. So
this will not be a solution to the problem of violence in our
society.
Having made those
introductory remarks, I'll turn it over to David, who will
comment more about the Mental Health Act and about CTOs
themselves.
Dr David
Goldbloom: Thank you. I'm speaking to you not only in my
capacity as physician-in-chief at the Centre for Addiction and
Mental Health, but also as a clinician who regularly and on a
daily basis deals with issues related to the Mental Health Act in
its current form and participates in review board hearings when
patients exercise their legal and necessary right to challenge
those findings. I have some front-line experience with both the
existing legislation and some familiarity with what is in the
current proposed changes.
First of all, I welcome
efforts to update the Mental Health Act and to make it relevant
to the needs of people with mental illness, to the needs of their
families, and as well, to make it a more user-friendly document
than it currently is for physicians who are vested with the
authority by the government to exercise what are extraordinary
powers around freedom of movement, around freedom of choice.
These are responsibilities that I believe all physicians should
treat with the dignity and due thoughtfulness that they
require.
There has been a great deal
of confusion under our existing Mental Health Act. The form 1 of
the Mental Health Act, which is for many people the triggering
point-the initiating point of contact with the mental health
system-is a terrible document. It's an incomprehensible document
that is designed to be completed incorrectly. A number of us participated with
the mental health law education project to translate it into
English from its current form, and I regret that the government,
despite repeated requests, has not yet seen fit to make the form
1 a document that families can understand, that physicians can
understand and that patients can understand, because I think some
of the authority that already exists within form 1 and related
sections of the legislation is underutilized because of the
miscomprehension.
I think the removal of the
word "imminent" in the proposals will go part of the way to
clearing up some of the confusion, but I would urge that
consideration be given to creating more plain-language documents,
not only for the legislation itself but for the forms that are
flowing from the Mental Health Act, to assist in their
appropriate and optimal use.
With regard to the proposed
changes, one of the things that I've been aware of is the
proposal to include both mental and physical deterioration rather
than the current criteria of physical impairment of the person.
This accords the appropriate respect to the preservation of the
mind as well as the preservation of the body. However, I would
love to see some more operational discussion around how mental
deterioration will be operationalized. In general, and I say this
from my experience of frequently participating at review board
hearings, the issue of physical impairment of the person is
fairly commonly understood in relation to someone who has stopped
eating, stopped drinking and stopped sleeping, for instance, as
some of the typical scenarios which may precipitate certification
under that criterion.
There should be important
thought given to how mental deterioration will be
operationalized, and I haven't seen information accompanying this
legislation that gives me comfort in that area. I do know that
mental deterioration is a criterion in some of the other Canadian
provinces.
I think perhaps, though,
the largest change that is proposed really relates to the
community treatment orders. Paul has alluded to the process that
we went through at the centre in trying to evolve an
understanding of CTOs. This was not a process that we took
lightly. It started as a discussion almost a year ago at our
medical advisory committee. After extended discussion, the
medical advisory committee presented a position to the board of
trustees at the centre. The board, in its wisdom, convened a task
force that included people from the community, people with
illness, people with family members, policy-makers, physicians
and others at the centre to try to achieve some common
ground.
1710
It is, indeed, reflective
of the debate which exists at large in the community around CTOs
that we could not achieve a consensus on whether CTOs should be
implemented. What we did achieve consensus on was the kind of
constraints and requirements that should be in place if CTOs were
to be introduced in order to provide safeguards around their use.
We've already seen lots of evidence of, I believe,
misapprehension and miscomprehension regarding CTOs, some of
which is offset by these proposed pieces of legislation.
The fear that people
unknown to a system of mental health care, who simply appear to
be acting strangely on a street corner, will be swept up and
involved in a CTO is not consistent with the legislation that is
proposed here. From my reading-and I'm not a lawyer-this
legislation closely resembles the Saskatchewan legislation, but
there are some notable differences. I would hope that we would do
a couple of things in contrast to what has happened in
Saskatchewan where the legislation has been in place and in use
now for five years.
First, there have been very
little significant outcome data brought forward by the Ministry
of Health in Saskatchewan. A significant opportunity has been
missed to understand, both from a quantitative and a qualitative
point of view, the impact of CTOs on patients, on families, on
health care providers. In the latter area, there has been some
research published by Dr O'Reilly and colleagues from the
University of Western Ontario about use and experience with CTOs,
but to my knowledge, nothing that really documents in a
meaningful way the experience of people who have been placed on
CTOs and the experience of their families. In that regard, I
would not like to see the Saskatchewan experience repeated. We
need to develop a comprehensive understanding of the experience
from everyone's perspective.
Second, the criteria for
getting on to a CTO in Ontario, as proposed, would be somewhat
different from those in Saskatchewan. Differences pertain to the
number of hospitalizations and the duration of time for which
those hospitalizations would occur. If you were to simply stack
them up in a quantitative way, you need fewer hospitalizations in
a shorter period of time and for a shorter duration under these
proposed guidelines than is the case in Saskatchewan.
I would be interested to
know what would have led the legislation to move in that
direction away from the Saskatchewan experience. Similarly, the
duration of a CTO that is proposed is double the duration that
exists in the province of Saskatchewan, from three to six months.
I know that the experience of psychiatrists in Saskatchewan, as
documented by Dr O'Reilly, is that they felt the duration was too
short. Perhaps that's what has influenced this change. But it
would have been helpful for me, as somebody reading this
legislation and comparing it to legislation in other provinces,
to understand the rationale for the differences.
One of the things that
struck me in a positive way regarding this proposed legislation
relates to the fear that some people would have that failure to
comply with, for instance, a single appointment or missing a
single injection, would automatically trigger a return to
hospital. It's clear from this legislation that a series of steps
would occur before that power would be invoked.
Similarly, the presence of
both the option for an appeal when a CTO is initially in place,
and a mandatory appeal upon every second renewal of the CTO, is
consistent with our current legislation on requirements for people who are hospitalized
involuntarily under the Mental Health Act. I welcome those
safeguards as well.
We had advocated that this
legislation be subject to a sunset clause and that mandatory
research into the effectiveness and the effect of this
legislation be included in the package so that we ensure that it
is doing exactly what it is intended to do and that, in weighing
its renewal after a sunset period, we incorporate the view of all
people concerned.
The fact that it, if you
will, conscribes the community to provide service is a positive
thing. However, there are concerns about the availability of such
service and also concerns that people would view this as a simple
solution to a complex problem. We view the needs of people with
mental illness as being far more broad than this legislation
would entail.
The kinds of supports that
are needed for the vast majority of people with mental illness
should not be overlooked in the context of a focus on a piece of
legislation which, by our estimates and by the Saskatchewan
experience, might apply to 1% of the 1%, in other words, 1% of
the population that suffers from schizophrenia and related
illnesses, and our best estimates are that 1% of that population
would themselves be candidates for community treatment
orders.
I'll conclude my remarks
there. I'm sure we'd both be happy to take any questions in the
remaining time.
The Chair:
Thank you very much. We have six minutes remaining for questions.
Because the government caucus had the only question last time, I
think what I might do is split it so that there's a reasonable
amount of time for the Liberals and the NDP this time.
Mrs
Bountrogianni: Wouldn't it be difficult to evaluate the
efficacy of CTOs, except if you do it over a long period of time,
given the narrow scope that you're also recommending or that is
recommended in this document? Just from my knowledge of research
design, wouldn't it have to be a very long sunset clause? I find
it difficult to see how this could be evaluated.
Dr.
Goldbloom: We talk about a sunset clause of five years
as being that time frame in which you would gather enough
information. That being said, one of the advantages of a
qualitative research approach is it allows for in-depth
understanding of the experience of a smaller number of people.
There is a randomized controlled trial that was published in
December 1999 by Dr Marvin Swartz and his colleagues at Duke
University where people were indeed randomized to either a CTO
with intensive case management or no CTO with intensive case
management. They were able to produce some data from that.
You're correct. It takes a
large sample size. I want to be clear about this: Nobody is
advocating broad CTO criteria in order to increase sample size
for research design, all right? We view this as the last option
to be pursued, not the first option. It would be my fervent hope
that as few people as possible would be in a situation where they
would need or benefit from a CTO.
Dr
Garfinkel: I would just add that you're correct in
saying it would be very hard to get a perfect design, but I
wouldn't use that as an excuse not to evaluate effectiveness.
It's imperative it be evaluated.
Mrs
Bountrogianni: Good point. I just wanted to make sure
that people understood we're not talking about six months
here.
My other comment is, a
previous group talked about how removing the word "imminent" and
also having a previous CTO as the two criteria for a CTO being
implemented decreases the rights of the potential patient. You
have here as one of your recommendations that the patient has
been the subject of a CTO formerly. Are you not worried that
perhaps that would decrease their rights under the charter?
1720
Dr
Goldbloom: Under the current Mental Health Act, for
instance, the only way you can be placed on a form 4 is if you're
already under a form 3. However, if you're placed on a form 4,
you have the right, which many people exercise, of a whole new
appeal with a whole new review board that's not prejudiced by an
outcome of a hearing, for instance, on a form 3 where the form 3
may have been upheld. My expectation would be that the exact,
same process would apply to somebody who's placed on a CTO and,
prior to the expiry of that CTO, a second CTO is issued. The same
right of appeal would exist and presumably to a different review
board than the one that might have heard an appeal of a first
CTO. We want to be sure those kinds of democratic safeguards are
in place.
Ms Lankin:
I actually have two questions, but just a quick comment on that.
I think that is a good part of the protection in the legislation,
although the current wording requires that on every second
renewal it's deemed that the person has applied. But for the
physician issuing the renewal, there's only a requirement for
them on the first renewal to notify the Consent and Capacity
Board. I think there's a technical problem that we'll have
to-
Dr
Goldbloom: With the issuing of any CTO, regardless of
whether it's a first, second, third or fourth, there must be
mandatory rights advice, and that rights advice process has to be
enshrined very clearly in the legislation. The advantage of the
mandatory review of a CTO is the exact same as the advantage of
the mandatory review of the form 4, which is that even in the
absence of the person choosing to contest the form, the
contesting of the form or the review of the form is automatic. I
think that's in the interests of everybody.
Ms Lankin:
I'm going to set out both of my questions so that I can get them
in, otherwise it may not happen.
The Chair:
The longer the questions, the shorter the answers.
Ms Lankin:
The first one is with respect to some discussion we had on Friday
and again today-on Friday with the OPA-and it relates to the
findings of the Swartz study that you referred to and the fact
that the only significant difference between the two control
groups was for a subpopulation and particularly those with a
psychotic disorder. It's very specific. You alluded to the small
population that could be affected by this. We've had some discussion about attempting
to clinically narrow the application of this. There seemed to be
support from the OPA on that. I'd appreciate your comments.
The second question is a
bit more complicated. The issuing of a CTO, the thing that's got
me concerned about how this happens-this is a process issue. A
general practitioner out in the community who feels that the
individual has met a number of criteria can issue a CTO. One of
them must be that the person, in the opinion of the physician,
meets the form 1 criteria to be sent for an assessment, but
there's nothing that compels an assessment to take place or for a
determination, form 3, that the person actually should be
committed, is eligible for involuntary committal. In order for
this to actually be less restrictive-and I'm sure there are
occasions where people are sent for an assessment, you assess and
you determine that they shouldn't be involuntarily committed.
Dr
Goldbloom: Absolutely.
Ms Lankin:
I think there's a problem in the juxtaposition of how this
happens. I feel very concerned that in communities where I
understand there's a shortage of psychiatrists, someone may not
have the benefit of that kind of assessment and/or a second
medical opinion about the validity of the use and effectiveness
of a CTO and/or even being able to contest the elements of
it-what kind of medication works for me as a person. Do you have
any thoughts about that?
Dr
Goldbloom: The points you've raised actually are
excellent. It would be my own view, just speaking
extemporaneously on this, that given the significance and
severity of a CTO and its implications, it should not be simply
any physician; it should require expert psychiatric assessment.
The form 1 is an emergency document that pertains to immediate
risk and allows for optimal intervention and assessment in a
72-hour time frame, which is very different than what's proposed
for a six-month CTO. I think any determination that somebody is a
candidate for a CTO should include expert psychiatric assessment,
given its implications.
Ms Lankin:
And on the clinical narrowing?
Dr
Goldbloom: The clinical narrowing is a challenging
issue. You're right that Swartz and his colleagues showed that
for people with mood disorders per se, CTOs made no difference,
but for people with psychotic disorders, CTOs did make a
difference. The problem becomes that a number of people who
suffer from mood disorders may experience some chronic psychotic
symptoms, and of course these are group means, and group means
for the population with mood disorders versus the population with
psychotic disorders obscure individual differences. I would be a
little reluctant to imagine how you're going to enshrine in
legislation diagnostic categories versus the severity of symptoms
and sequelae from illness.
Dr
Garfinkel: I would go a bit stronger than that and say
that with our current state of knowledge, it would be very unwise
to do it by diagnostic review. There's too much overlap and there
are other predictors that are far better.
The Chair:
Thank you, gentlemen. We appreciate your coming before us here
this afternoon and bringing your perspective.
MENTAL HEALTH LEGAL COMMITTEE
The Chair:
That takes us to our last presentation of this afternoon's
session, the Mental Health Legal Committee. Just a reminder to
members of the committee that this was the group we had to
reschedule because we went over time on our last Toronto hearing
date. We appreciate their indulgence and we've agreed to be,
shall we say, flexible in the time. It was scheduled for 20
minutes, but seeing that we don't have another group, we'll
extend that to 30 minutes.
Ms Lankin:
If I could just correct the record, it was actually to be 30
minutes because one of the-
The Chair:
Was it originally? OK. Then we'll make it 32 minutes on the clock
here.
Ms Anita
Szigeti: Good afternoon, members of the committee, and
thank you for the opportunity to address you today. My name is
Anita Szigeti, and I am chair of the Mental Health Legal
Committee.
The committee is an
organization of lawyers and community legal workers who advocate
to protect and advance the legal rights of persons with serious
mental health problems. I am also a lawyer in private practice,
representing this clientele at hearings of the various
administrative tribunals which adjudicate in respect of such
charter-protected liberty interests as for instance the
presumption of capacity under the law and the right to refuse
treatment, which we all currently enjoy. These basic civil rights
protections, including the right to life, liberty and security of
the person, as well as the right to autonomy, privacy and
self-determination, in our submission, are threatened and
severely restricted by provisions of Bill 68 to an extent which
is unjustified and unjustifiable. Our 75 members across the
province therefore oppose the passage into law of Bill 68.
We noted that Minister
Witmer introduced Bill 68, suggesting that the government was,
and I quote, "lighting the way for the new century with this
landmark legislation." Our members are mindful of Justice Quinn's
remarks in a recent mental health case in his courtroom when he
said, and I quote again, "History has shown that the road to
injustice is frequently lit with the light of good intentions."
The Mental Health Legal Committee considers that Bill 68, no
doubt with the best of intentions, lights the short and bumpy
road to serious injustice for persons with mental health
problems.
We have submitted to you
some written comments last week, and I must apologize for the
length of the material. It is exactly as long as it is because of
the extremely short notice I had to prepare it. When you look at
the document, you will see there are all kinds of different fonts
and sizes of letters, and I ask you to pay no attention to that
whatsoever. My computer had a mind of its own.
In my oral submissions
today, I propose to answer for you three questions about this
legislation, and at the end of my presentation I will be pleased to respond
to any questions you may have. However, I also have three
questions for this government which our members were simply
unable to answer on their own. The three questions that I will
address are the following: (1) Is new mental health legislation
necessary? (2) Are the amendments proposed in Bill 68 consistent
with the Canadian Charter of Rights and Freedoms? (3) Are there
effective measures the government could take instead of
introducing a course of legislation? The short answers to these
questions, in our submission, are no, no and yes, and here is
why.
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First, is new mental health
legislation necessary? We think not. There are three reasons
supporting our perspective: (1) The existing legislation
sufficiently protects the community as well as the seriously
mentally ill; (2) the real problems are gross misunderstanding by
professionals and families of their rights and obligations under
the existing mental health laws; (3) this confusion is compounded
by the inadequate funding of in-patient and community resources
for this population.
Dealing first with the
existing legislation: It is our submission that the carefully
crafted existing mental health legislative scheme already
balances the right of the individual to autonomy and privacy, as
against the right of the state to intervene to protect the safety
of the community, or that of the right of the individual to be
kept safe from imminent, serious physical impairment. This is
done, as you know, by provisions of the Mental Health Act for
involuntary psychiatric admissions, the provisions that are now
sought to be broadened.
The other two important
pieces of companion legislation, the Health Care Consent Act and
the Substitute Decisions Act, already contain provisions enabling
any incapable individual to receive treatment pursuant to the
informed decision-making of a substitute decision-maker, as well
as to plan for a period of incapacity by drafting a power of
attorney for personal care or a document known informally as a
Ulysses contract, essentially waiving the person's right to
otherwise available legal remedies.
The Substitute Decisions
Act also permits court-appointed guardianships of the person,
whether initiated by a family member or the office of the public
guardian and trustee on an emergency basis wherever a person is
not capable of personal care and adverse effects might be
suffered as a result of that incapacity while the person resides
in the community.
Additionally and
importantly, the Mental Health Act already allows for leaves of
absence without any condition at all attached to that leave for
up to three months. That's in section 27 of the existing Mental
Health Act.
The second reason why we
believe that revisions to these laws are not necessary is that
any perceived shortcomings of the act can be adequately addressed
by the appropriate education, which we suggest should be
mandatory, on the operation of the three acts and the ways in
which they are meant to and do function in harmony.
The principal objection to
the existing legislation is that it is too difficult to get folks
with mental health problems into psychiatric hospitals and
treated against their will. With the greatest of respect, under
the Constitution it's meant to be difficult to strip people of
basic civil rights. In fact, any limitation on these liberties
must be reasonably justified in a free and democratic
society.
However, the perception
that it is just too hard under the law to either involuntarily
hospitalize or treat an incapable person against her will is
itself deeply flawed. As a matter of fact, it is impossibly easy
to get someone into a psychiatric facility. Family members, or
anyone else, for that matter, can simply attend before a justice
of the peace, for example, and provide information without
requiring that the individual sought to be committed be present,
and the justice of the peace will issue an order for the
apprehension of the person to be taken to the psychiatric
facility for an evaluation. There are many other ways under the
present acts to get a person from the community to a psychiatric
facility.
The third reason why the
law is not at fault in any perceived shortcomings of the system
is that, in our submission, the real problem starts when the
person arrives at the psychiatric facility. The problem is one of
underfunded in-patient beds and a general lack of community
resources for persons with serious mental health problems. It has
been our members' experience that our clients can no longer get
admitted to hospital voluntarily. The de facto criteria for a
voluntary admission have become the legislated criteria for an
involuntary admission. It is because hospitals do not have the
beds that doctors inappropriately, sometimes, fail to detain
involuntarily those persons who under the law meet the existing
legislation.
Not only will this problem
not be alleviated by Bill 68, it is going to be seriously
exacerbated, to the point where pressures on in-patient beds will
mean that only those who have just attempted suicide or have
physically seriously assaulted another person will actually get
admitted to a psychiatric facility.
If you need to see
statistics on this, you will recall that a journalist by the name
of Scott Simmie, who was the Atkinson fellow in 1998, published
his Out of Mind series in the Toronto Star. He quoted statistics
from the Centre for Addiction and Mental Health Queen Street site
that, while in 1992 out of a total of 1,950 patients admitted to
the Queen Street site 840 had been admitted voluntarily, by 1998
only 138 patients out of a total of 670 were admitted on a
voluntary basis. That's a drop from a 43% to a 20% voluntary
admissions and a total cut of 1,280 beds at that site alone. No
doubt, statistics for the year 2000 will show even fewer beds and
a smaller percentage of voluntary admissions-in our experience,
very close to zero.
Summing this point up, the
existing legislation already strikes the appropriate balance, and
the problems really are misinformation and underfunding.
The second question I will
now propose to answer is, are the amendments proposed in Bill 68
consistent with the
Charter of Rights and Freedoms? Again, in our submission, the
short answer is no. Bill 68 does four things which offend the
charter on three basic grounds:
(1) It removes the word
"imminent" from the existing criteria for an involuntary
admission.
(2) It expands the criteria
for involuntary committal to include the potential for mental
deterioration.
(3) It introduces the
community treatment order.
(4) It proposes that police
officers have the right to detain anyone, based on the
uncorroborated information of one person alone, without the
requirement that currently exists to observe disorderly conduct
in the individual sought to be delivered to a psychiatric
facility for evaluation.
In our submission, all of
these proposed amendments are arguably offensive to the
Charter-protected rights to life, liberty and security of the
person contained in section 7, offensive to the right protecting
against arbitrary detention contained in section 9, and the right
to equal treatment under the law in section 15.
With regard to imminence, I
think it bears repeating, as I understand, that there is
confusion among medical professionals and families about just
what "imminence" means. I also understand that this confusion is
said to be a roadblock to physicians' ability to involuntarily
detain persons with mental health problems. Just to be clear, the
requirement of imminence attaches to the third ground for an
involuntary admission, serious physical impairment of the person,
because physical impairment is a lower risk of harm than serious
bodily harm to the person, which risk is not similarly qualified
under the existing section 15 or clause 20(1) as a ground for
involuntary assessment or admission.
The time-limited
requirement exists as a basic liberty protection against
detention on the basis that you might come to physical impairment
at some remote time. The remedy for confusion on just what is
meant by "imminence" is clearly education and not the removal of
the very requirement that is intended to protect civil rights.
For instance, and just to give you another example out of
context, while police officers' ability to obtain confessions
from people charged with crimes is likely impeded by the
requirement that they caution the person detained of their right
to silence, we do not propose to do away with the Charter
protection in order to facilitate the work of the officers in
getting evidence to assist in obtaining a conviction.
On the issue of widening
the committal criteria, the provisions of Bill 68, in extending
involuntary psychiatric assessment and hospitalization to those
persons who in the past received treatment for a mental disorder
thought to clinically helpful whenever they risk substantial
mental deterioration, cast the net so wide that essentially
anyone with a prior diagnosis of a mental disorder becomes
certifiable under this legislation. No doubt, the intention is to
restrict this additionally broadened committal criterion to those
persons who are often said to be chronically ill. However, the
language of the bill simply accomplishes nothing of the sort.
In reality, persons once
previously diagnosed with, for instance, seasonal affective
disorder or post-traumatic stress disorder can, under the
proposed legislation, be involuntarily admitted to a psychiatric
facility based essentially on the pre-existing diagnosis alone.
It is this proposed amendment to the criteria for involuntary
psychiatric hospitalization that is going to cause my clients to
change their names legally, leave this province or, I take it, go
to Peterborough or Windsor, where I understand psychiatrists are
lacking, and go as far underground as possible to avoid the very
real potential for a complete loss of their liberty in situations
where they would currently be living in the community.
The suggestion that Bill 68
somehow enables a population of seriously mentally ill persons to
live in the community is simply misleading. It does the opposite.
It mandates the involuntary psychiatric admission of potentially
thousands of individuals who currently enjoy their liberty.
Indeed, this is the stated purpose of the bill: to get at those
individuals currently seen to be beyond the reach of the law.
In respect of the community
treatment order, we suggest that in conjunction with the proposed
widening of the criteria for involuntary admission, the
introduction of the community treatment order regime is perhaps
most troubling. Again, the suggestion that this mechanism is
benevolent in providing the least restrictive alternative for
persons with mental health problems to reside in the community
rather than in psychiatric institutions, is entirely
unfounded.
1740
What Bill 68 does is expose
a person to a compulsory medication regime when those very people
do not meet the existing criteria under the current legislation
for involuntary admission to hospital. If you ask these people,
"Aren't you lucky that the CTO lets you live in the community?"
they could truthfully respond: "But I don't understand. Prior to
the CTO, I was living in the community and I wasn't coerced to
take medication." So I'm afraid there is no silver lining here
for the mentally ill whatsoever. Essentially it is all bad.
Every aspect of this bill
is set up in a way as to coerce and unconstitutionally compel
treatment or hospitalization on a group of people who currently
live among us peacefully, which is why I expect you will see a
serious movement by this population to distance itself
physically, emotionally, utilizing whatever measures they can to
get away from the mental health professionals with whom they may
at this time have a reasonably good relationship. This will
include psychiatrists in hospitals, in the community, as well as
members of the very expensive assertive community treatment teams
the province has recently put into place.
The criteria for a
community treatment order proposed in Bill 68, that is, two prior
hospitalizations or accumulative hospitalization of 30 days, are
entirely arbitrary and, once again, cast the net too wide to be
defensible.
I was indeed intrigued to
hear submissions by the Ontario Medical Association's psychiatric
division, I think Wednesday last, in this very room, where the
suggestion was made
that it was somehow unfair that the community treatment order
would not be made available-that's their term-to those persons
who have never been previously hospitalized. I say to you, very
much tongue-in-cheek, that there's a part of me that wishes you
would adopt that submission. The reason for that is primarily
that if a CTO could apply to just anyone at all thought to be
suffering from a mental disorder, that legislation would not last
even a day in this province.
If the stated purpose of
this bill is to target the so-called revolving-door patient, it
is interesting indeed that the OMA wishes to see the CTO applied
to persons with no former psychiatric hospitalizations at
all.
The other stated purpose of
this bill is the protection of public safety, and Minister Witmer
referred to this legislation as making our communities safer. I
will point out to you, just for fun, that there's absolutely
nothing in the sections widening criteria for involuntary
admissions, or equally in the criteria for the CTOs, that link
the application of the coercive measures to any prediction of or
propensity for dangerousness in the case of the subject of the
detention or compulsion, any more so than our existing Mental
Health Act already does.
Finally, to suggest that
the CTO is not a coercive measure at all, but rather an agreement
struck between the physician and the individual or his or her
substitute decision-maker, is again misleading. We believe you
cannot suggest that consent obtained under pain of an involuntary
hospitalization is a voluntary consent. It is clearly a consent
obtained under duress.
In the case of SDMs, or
substitute decision-makers consenting to the CTO on behalf of an
incapable person, we think this is such an extraordinary level of
control vested in the family member that only court-appointed
guardianships should grant similar power.
By introducing Bill 68, the
result of the proposed amendments is that family members will
obtain complete control over the person who has a mental health
problem, without any of the due process automatically attaching
to applications for court-appointed guardianship, and without the
liability that attaches to exercising those duties of guardians
without regard for the incapable person's best interests.
I want to leave some time
for questions. I'm not going to spend a lot of time on this, but
I will say that I found it illuminating to listen to submissions
of the Schizophrenia Society of Ontario, immediately followed
thereafter by those of the OMA, organizations both of which spent
a substantial part of their presentation to you requesting
amendments to insulate both family members and physicians from
exposure to liability arising from their actions in enforcing the
CTO.
In our submission, what is
being proposed by Bill 68 and requested by families and
physicians is ultimate control over the day-to-day life of
individuals without the legal responsibility that currently
attaches to that level of authority over the lives of these
people.
Lastly, on the issue of
police powers, I will simply say that there is good reason for
requiring police officers to personally observe disorderly
conduct under the existing law. The removal of that requirement
will inevitably lead to abuse.
At this time, I think I'll
take a minute just to comment on the Antidormi inquest that Dr
David Eden of Niagara region spoke to you about. I have nothing
but the greatest respect for Dr Eden, and just so you know, I was
intimately involved with litigating the Antidormi inquest. I had
the pleasure and the honour of appearing at that inquest on
behalf of the Canadian Mental Health Association's Ontario
division.
I need you to know for the
sake of accuracy and clarity that in the facts of that case,
which were admittedly tragic, there were probably six or seven
ways to get Mrs Piovesan, the woman who stabbed Zachary
Antidormi, into hospital. On one occasion, at the end of 1994 or
early in 1995, a police officer acting under her own existing
section 17 authority, actually did bring Mrs Piovesan into
hospital. Unfortunately her psychiatrist, and this was put into
evidence at the inquest, discharged Mrs Piovesan, even though she
had had no response whatsoever to treatment, with a caution that
if Mrs Piovesan continued to mention her homicidal intent in the
community she would land back in hospital.
Not any of the
professionals understood their obligations and rights under the
law-not anyone who testified at that inquest. There were police
officers who testified that they made no attempt to see Mrs
Piovesan, in which case it was obviously going to be hard for
them to observe her conduct. The evidence at that inquest was
that Mrs Piovesan is still at this time reportedly non-responsive
to treatment, so in my submission she is actually the anti-CTO
poster woman. She is someone who, if she were subjected to a CTO,
would have been allowed to live in the community next door to
Zachary Antidormi, provided she took her medication, but would
have been an equally lethal threat to Zachary, which is why our
existing legislation divides issues of public safety and
detention separate from issues of capacity and treatment.
In summary, our committee
opposes the passage of Bill 68 into law because of our belief
that the existing legislation, when properly understood and
combined with proper funding, addresses any concern that any
member of the community has.
This is extremely coercive
legislation which in our view is entirely unnecessary in light of
the fact that education of professionals and families, together
with the funding, would alter the perceptions that there is a
lack within the legislation.
I'm happy to respond to any
questions, but I will just say to you that there are three
questions our committee was unable to answer on our own. I've
given you the three questions that I could answer.
We have three questions. We
require some clarification on some things we can't
understand:
(1) What happened to the
mental health law education project we've heard so much about,
the one pioneered by Michael Bay? We thought it was a good idea
that would go a long
way toward alleviating difficulties. I guess what we're confused
about is, is there a report of the effectiveness of that
education project? Was it successful in some way or did it, as Dr
Young points out, not succeed as we had expected it might?
(2) If the government is
prepared to put the resources behind community funding of
services, why not try that first before introducing legislation
that would be coercive? Why not do things with and for people
before we start doing things to them?
(3) Lastly, we don't
understand why this government would want to contribute to the
stigmatization of the seriously mentally ill by framing this bill
as the solution to perceived dangerousness of the mentally ill in
the community. Why make the announcement that this bill is the
answer to safer communities? We're concerned that that type of
framing of the issues actually contributes and compounds the
existing stigmatization of the seriously mentally ill.
That's it. I'm done.
The Chair:
That leaves us about seven minutes for questions. I should alert
everyone that we're probably going to have to stick very close to
that because there's a bell about to ring for a vote in the
House. For the rotation this time, we'll start with Ms
Lankin.
Ms Lankin:
There are a number of things I would like to address, but let me
ask you about your comments on form 4 admissions. A couple of
heads of psychiatric departments of general hospitals have said
to me, although they won't say it publicly, that there are people
who come in for assessments, sent in on form 1 or form 2 for
assessments, who are not admitted-granted, some people because
they don't meet the criteria in the view-sorry, are we OK to
continue?
The Chair:
Yes. It's a 10-minute bell, so we'll go until about two minutes
to.
1750
Ms Lankin:
I lost my train of thought there. There are many times when
people are not admitted because they have no beds. Some of the
frustrations that family members and individuals themselves have
experienced in trying to get access to treatment is around
this.
I have been told by a
number of these people that with the broadening of criteria for
involuntary commitment, they fear a whole group of new people
ending up in their emergency rooms, and the inability, with the
current resources-particularly with the Health Services
Restructuring Commission's restructuring numbers being based
prior to these legislative changes.
The OMA said to me: "Oh,
no, CTOs are going to put all these people out on the street.
We're going to have lots of beds." So essentially we'll have an
embarrassment of riches. I went back to the other psychiatrists
and they disagree with that profoundly. On the one hand, with
people who want to make the legislation work, we're all trying to
find the right adjustments here, but I feel we have to
acknowledge that it's not only the community side, that there's a
facility side shortage. I wonder if you can comment on that.
Just quickly, the last
question: I have heard it said that the previous hospitalization
criteria for CTOs, which includes the two or cumulative 30 days,
are going to lead lawyers to advise their patients never to go in
voluntarily, because two previous or a 30-day voluntary admission
at some point in time could set you up in the criteria for this.
I wonder if you could comment on those two things.
Ms
Szigeti: If you look at the language of the existing
legislation as well as the proposed amendments, physicians have a
positive obligation-I'm not entirely sure they comprehend this,
but the language of the legislation is, "When an individual meets
the criteria for an involuntary admission, the physician shall
complete a form 3,"-or whatever it is-"admitting the person
involuntarily." So it's actually not discretionary that way. The
person either meets the criteria for involuntary admission or
doesn't. When you expand the committal criteria in the way the
bill proposes, you're going to have a lot of physicians not being
able, frankly, to do their duty pursuant to the legislation.
I don't think community
treatment orders are going to be the answer in every case. I
think there will be pressures on beds and it's going to leave
physicians in a real quandary. I'm pleased to hear that at least
some physicians are concerned about that. I understand that some
physicians take a different view. Maybe it depends on their
hospital and the funding the individual hospital has.
Your second question?
Ms Lankin:
Voluntary admissions.
Ms
Szigeti: I've represented more than 300, probably about
350, individual patients in various psychiatric facilities in the
last three years. The advice I'm going to give them now is to do
whatever they can to stay out of hospital. If they do land in
hospital, whereas hearings of the Consent and Capacity Board
which adjudicate in respect of these issues now convene within
seven days, and I'm usually flexible to the board's schedule, I'm
now going to be writing letters to the board saying, "We need you
to hold that hearing today because if you revoke the certificate
that holds my client seven days from now, that's seven more days
that goes on their record of this possible cumulative 30 and
you've prejudiced them by making them a candidate for a CTO in
the future."
There are going to be huge
administrative pressures on the function of the Consent and
Capacity Board and we will be contributing, through no fault of
our own, to that pressure because that is the best legal effort
we can make on behalf of this clientele. Thank you for asking
those questions.
The Chair:
I think in the interests of time, Mr Patten, if you have a very
quick question, say three minutes.
Mr Patten:
My question is, you said you felt there was no need to change the
law at this point because everything seemed to work with the
existing law. I would like to ask you if you would respond to Dr
Goldbloom, who was here this afternoon. Perhaps you heard him. In
a study he did, he says, "While a need for community treatment
orders may be compelling, one could argue that they are unnecessary if
current available mechanisms exist to meet the need," which I
think was your point.
Ms
Szigeti: Yes.
Mr Patten:
He says: "This is not, however, the case. Section 27 of the
Mental Health Act, which allows involuntary patients to be out of
the hospital for up to three months, was not intended to provide
community-based treatment and is predicated on the assumption
that the patient will in fact return to the hospital. A recent
review board hearing at the centre did not uphold the use of
section 27 for community-based treatment of a certified patient.
It is clear that section 27 was not designed to be used as a
mechanism to enforce community-based treatment and should not
therefore be held up as a practical alternative." That's a quote,
by the way.
Ms
Szigeti: That's Dr Goldbloom's position, and I
appreciate where he's coming from. The language of section 27, in
fairness, does suggest that the intention must be that the
individual return to the psychiatric facility at some time within
the subsequent three months. It all depends, Mr Patten, on what
the intention of the CTO regime is. Many of the press releases
emanating from the government talk about how this will provide
for a graduated release from psychiatric hospitalization-this
business of, "The psychiatric facility doors will swing open and
people will be enabled to live in the community." That is
something section 27 probably can be used for. It's just a
shorter term. It's the length of a certificate. It's a
three-month period. The intention is to return to the facility.
But if the idea is to see how the person does on a trial run in
the community, it could certainly function as that.
Dr Goldbloom is probably
right that it's not intended to be a long-term course of
treatment in the community, but it's our submission that if
medication is actually helpful to an individual, presumably at
some point they will regain the capacity lost during the times of
the illness. You shouldn't need to keep someone on a CTO for the
rest of their life. Three months either improves them to the
point where they can make their own decisions or it doesn't.
Those are my comments about that.
The Chair:
Thank you very much. We're under the gun again. Things are
happening in the assembly, but you got your half-hour. We
appreciate your taking the time to make your presentation.
With that, the committee
stands recessed until 7 o'clock.
The committee recessed
from 1756 to 1903.
The Chair:
Good evening. I call the committee back to order for the purpose
of further presentations on Bill 68, An Act, in memory of Brian
Smith, to amend the Mental Health Act and the Health Care Consent
Act, 1996. We are joined by a number of presenters. The first up
is Mr Michael Armstrong. Please come forward and take any of
those chairs.
Ms Lankin:
Just while we're waiting to begin, there are three things I'd
like to put on the record. This is actually to the ministry, Mr
Clark.
One, I was wondering if the
ministry could elaborate on what elements they think might be
contained in a community treatment order. We've had some
representation on the ability or issue of the scope of practice
of a doctor and the competence of a doctor to order certain
things. For example, if housing was part of it, how does that
work? I think many people are looking for community treatment
orders not simply to be medically and medication-based, but to
have a broader sense of what treatments and supports are
necessary.
Second, could the ministry
inform us of what plans they have for education out in the field
with respect to these changes and the resources that will be
attached to the provision of that education?
Third, what mechanism or
scheme or structure will be put in place in the community to
provide rights advice? Many of the provisions mandate rights
advice in various aspects of the community treatment order
process, yet rights advisers don't currently exist, that I'm
aware of, out in the community sector. What structure-I won't
call it an advocacy commission; that would be provocative-will be
put in place to meet the demands of the legislation?
The Chair:
Thank you, Ms Lankin.
MICHAEL ARMSTRONG
The Chair:
Thank you, Mr Armstrong. Our little back-and-forths on these side
issues don't come out of your time. We are glad you could join us
here this evening. You have 10 minutes for your presentation. If
you wish to allow time for questions at some point, that's up to
you, or you can speak for the entire 10 minutes. The floor is
yours, sir.
Mr Michael
Armstrong: I'm a Toronto resident. I was born in 1950. I
grew up in Scarborough, actually. I'm a lawyer by education. I'm
an employee of the Canadian Mental Health Association, but I'm
here today speaking on behalf of myself to inject a more personal
note to these hearings. I was in law school with Bob Rae-even
though people sometimes tell me that's not a good thing to
say.
The two issues I want to
touch on briefly are accountability of the health professionals
who deal with psychiatric patients, and also who will define what
"clinical improvement" is in Brian's Law.
As far as accountability,
I'll just mention a few of the facts of my own life. I was first
diagnosed at the age of 20 after having a psychotic experience.
In those days, psychiatry said that if you had a psychotic
experience you were automatically schizophrenic, so that was my
diagnosis. That turned out to be wrong, and that was not
corrected for 23 years.
I was not properly treated,
needless to say. I'll just mention two aspects of that. One was a
five-year suicidal depression that I was in that was not caught
by the doctors. Another time I was working as a teacher. I had
come out of that depression, was doing very well teaching grade
13 law. Six of my 20 students said it was the best high school course they'd
ever had. Then my doctor decided that because schizophrenia
somehow magically disappears at the age of 40, I didn't need my
meds any more. He took me off them. I lost my job, I lost my
partner, and I couldn't pay rent for six months.
I was diagnosed as
manic-depressive in 1993, and that was just the beginning of more
time in hospital because of the experimentation which is the
nature of psychiatric treatment. I was hospitalized three more
times, for a total of about eight times.
My present doctors are
quite excellent, but they were there through those three
mistakes. They admitted their mistakes and they're very
compassionate people. I've written to the College of Physicians
and Surgeons to praise them for their work, but they still made
these mistakes.
My point around
accountability is that if you're going to be introducing
legislation to put people in a position of being forced into
treatment, you have to be very carefully aware of what you're
actually doing, which is giving more power to people who, despite
their good intentions, may make mistakes, because that's the
nature of psychiatry. It's a very primitive science at this
point, because the brain is a very complex organ.
As far as "clinical
improvement," the definition does not exist in the act at the
moment, but from my perspective, giving a list of my own
experiences of side effects-gaining 50 pounds in three months,
having permanently damaged hands, problems of balance coming down
stairs, vision changes, impotence for nine months until the drug
was changed, dry mouth risking teeth rot, impaired ability to
walk-those are not clinical improvements. I ask the question,
will that determination be left up to the doctor to decide or to
characterize, or will it be left up to the patient?
As far as accessing care
for myself, there was never a time when I needed to be in
hospital that I couldn't get in, despite not necessarily wanting
to go. I did get in when I needed to. I'm tempted to say, as a
manic-depressive survivor, that if the act isn't broken why fix
it?
My present situation is one
of great peace and happiness in my life, great stability. I've
been working now for two years without missing a day. I look
forward to a much more relaxed lifestyle for myself from now on.
I think spiritual growth is a great part of that, and I think
that's missing from this equation of pills or treatment, in that
sense, equalling successful treatment. I think there's a lot more
to psychiatry than the psychiatrists want us to believe.
That's basically my
presentation. Again, I just wanted to ask that the doctors who
seem to be so enthused about expanding the role of community
treatment orders and these sorts of treatments have some humility
in the face of many, many histories-and I could go into other
people's experiences as well-of mistakes that have been made
along the way.
1910
The Chair:
Thank you very much, Mr Armstrong. That does leave us time for
questioning. We've got about five or six minutes, so if each
caucus could take a couple of minutes, starting with the
government.
Mrs Munro:
I certainly appreciate the fact that you've come here tonight to
give us a very personal insight into the kind of legislation that
we're looking at. So my question is based on the information that
you've provided us with your own personal experience. When you
talk about community treatment orders on the second page of your
presentation, about being very careful, I wonder if you could
give us any advice in terms of this.
Let me just tell you that
on Friday we heard from some professionals who indicated that in
another jurisdiction their experience with community treatment
orders meant that something like 20 people out of 1,000 is the
number they would be looking at that would actually-
Mr Patten:
Hospitalized.
Mrs Munro:
I thought it was that got community treatment orders. No?
Mr Patten:
Yes, from New Zealand.
Mrs Munro:
My question to you, because we're running out of time here, is:
Have you got any specific ideas here when you talk about being
very careful? I think you have an opportunity to give us some
very important advice.
Mr
Armstrong: I've spoken with Michael Bay on occasion, and
he had been touring the province, as far as I understand,
educating people about how the present Mental Health Act could
work if people understood it. If there's such a problem in
understanding it, perhaps it should be clarified on some levels,
obviously, but I can't remember coming across any cases that
couldn't have been covered by the present legislation, in my
experience with survivors.
I work with Lana Frado up
at the police college educating police officers about the reality
of mental illness and being picked up by police and such. She is
the executive director of Sound Times, which is a clubhouse for
450 psychiatric survivors. In our experiences of people needing
to be hospitalized, it usually works that the people who are most
ill don't get the treatment in general in the system anyway.
That's her experience. So those issues need to be addressed.
I just can't see, in the
spectrum of my experience, where a community treatment order
would have to be introduced as opposed to just using the
provisions in the present act if they were somehow clarified in
language. That's my feeling about it.
Mrs Munro:
Thank you very much.
Mr Patten:
Mr Armstrong, thank you for coming. I wonder if you've had a
chance to read the bill where it talks about when a physician is
required to or feels that they would like to issue a treatment
program, all of the requirements that the bill sets out: They
have to name who the supervising physician is; they have to name
who the other players are, what role they play; they have to
identify the nature of the treatment; and, as I read it, they
have to be quite specific about what the nature of this
particular plan is and how it's to be implemented.
As you see that, where would you feel, either in
that aspect or in other aspects, the bill could be strengthened
in terms of accountability for the physicians?
Mr
Armstrong: I think you have to define "clinical
improvement" from the perspective of the patient as being the
priority, and the patient's family as well. If the doctors can
miss with me, five years of a serious depression, during which
time I didn't even get a single antidepressant-I presume they
existed; it was only in the 1980s that we're talking about
here.
I think that the spirit of
introducing this community treatment orders legislation has to do
only with people who've shown improvement with the treatment in
the past. I guess I have to get back to this: My only point was,
from whose perspective is the improvement? If you're going to be
forcing people into situations where they go through all these
things, such as the ones that I list in my own experience, then
it's a lot to ask of someone.
Ms Lankin:
Again, let me add my words of thanks to you for coming forward. I
think it's very difficult for all members of this committee to
come to terms with the very polarized points of view that exist
from the psychiatric survivor community and from friends and
family members, particularly of those with schizophrenia, but not
exclusively, with respect to this.
Your comment was that
people who required hospitalization could basically get that
under the old act, yet many family members will tell you endless
horror stories about trying to get help for family members and
being unable to get help at the time. You also said that in your
view some of the people who are most seriously ill aren't the
ones who get in and get the help they need.
I'm wondering if you could
share with us what you meant by that. Everyone here-and many of
the presenters-is saying that this is only going to apply to a
very small percentage of the most seriously mentally ill with
severe psychotic conditions, that those are the only people this
will apply to. Why then is there such concern in the psychiatric
survivor community around this? What have you experienced before
that you're translating into the intent or what the application
of this bill will be?
Mr
Armstrong: The comments about the most seriously ill not
getting the treatment come from my experiences with Rod Albrecht,
who is the executive director of Fresh Start, which is a survivor
company that employs people with mental illnesses. He actually
found that his employees went from an average of 50 days in
hospital before they were employed down to 1.7 days in hospital
after they were employed for a year with Fresh Start, which shows
the advantage of having jobs for people like myself.
I believe that the
government is heading in the direction of having some form of
community treatment order. Given that that's probably the case,
the cases that come up with it will have to be very carefully
watched to draw some lessons from them.
Acquaintances of mine are
parents to a young man who is severely schizophrenic. He has
threatened to kill himself as well as to kill his family. They
are desperate to get him back on medication. He would seem to be
a prime example of someone who might fall under the community
treatment regime. It all goes back to predictability. Is it
enough for someone to threaten with words? What do you wait for
to act as far as bringing out a community treatment order for
someone like that?
My concern is that it be
very carefully monitored so that you don't frighten people into
thinking that they're going to have to put up with the chemical
straitjacket that sometimes is the result of it and other related
side effects, as I've mentioned. The new medications that are
coming out, it seems, are a lot better in that regard, but most
of them aren't covered by OHIP when it comes to people on
welfare, ODSP, getting coverage for their meds. The new meds are
not listed as being covered, so they're not available. We're left
with these old medications and the old problems that go with
them.
I can only speak up until
1996 for my life, because my life has turned around completely
since then. My previous history goes back to 1970, as I said. It
may be put in that perspective. My hope is for new medications to
be funded. We're also alarmed and leery of community treatment
orders because it seems that to make them work there needs to be
a lot of support in the community, different resources available
to people, including job opportunities and housing, of course,
which is just so obviously a need for people. I'm not just
talking about the warehousing in boarding houses that goes on now
in Parkdale where I live, for example.
The Chair:
Thank you again, Mr Armstrong. We very much appreciate your
coming before us here this evening.
JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH
LAW
The Chair:
Our next presentation will be from the Judge David L. Bazelon
Center for Mental Health Law, our long-distance traveller for the
day, Good evening and welcome to the committee. You have 30
minutes for your presentation. We certainly welcome you and look
forward to hearing what you have to say.
Ms Tammy
Seltzer: I'm Tammy Seltzer. I'm an attorney at the Judge
David L. Bazelon Center for Mental Health Law in Washington, DC.
I want to thank the committee for giving me this opportunity to
testify. I want to say too that I'm impressed so far with the
level of discourse. We're on the record, so I'm not going to
compare you to your counterparts south of the border. You also
started on time, which I think is quite impressive. Draw your own
conclusions.
1920
The Bazelon Center is a
national legal advocacy group in the United States, based in
Washington, DC. We've been around since 1972, and we have brought
most of the systems change reform litigation involving the rights
of people with mental disabilities, both mental illness and
mental retardation.
I'm a staff attorney at the Bazelon Center where
I work on issues of what we call outpatient commitment and you
call community treatment orders. I'm probably going to keep
calling it outpatient commitment because that's what I'm used to.
I also work on issues of criminalization of people with mental
illness. I recently completed a study reviewing all of the state
statutes on outpatient commitment, including the District of
Columbia as well. That analysis of the statutes is available on
our Web site. I've included citations in what I've submitted to
you so you can go and look for additional information.
I've also spent a
considerable amount of time monitoring the implementation of
Kendra's Law in New York state. I am in close contact with
researchers, lawyers and advocates who are working on this issue
around the country. What I see as my role here is to give you
sort of an overview of the United States' experience with
outpatient commitment and not really to focus too much on Bill 68
in particular, because I think there are people who are obviously
much more qualified than I to do that, and some of them have
already spoken.
I'm first going to give you
a sense of Bazelon's position on outpatient commitment. Then I
want to talk about how we feel that the research on outpatient
commitment has really been misrepresented on many occasions; and
talk about what we consider to be the only two really credible
studies that have been done; and then to also talk a bit about
how states that have adopted the use of outpatient commitment
have, in most cases, abandoned the use of it and why that might
be; and then, finally, to talk about some of the unintended
consequences of outpatient commitment.
First, in the interests of
full disclosure, the Bazelon Center opposes outpatient commitment
for a number of reasons-again, our position statement is
available on our Web site-but most important is that we consider
it really a misguided approach to a systems problem. It's trying
to hold the individual consumer responsible for the failure of
the mental health system to serve their needs appropriately.
Involuntary outpatient
commitment appears to increase the use of services because it
forces the system to make those services available to the
individuals who are subject to orders. I don't know if you all
have something called mental health courts here, but it's
something that is new in the states to try and prevent people
with mental illness from entering the criminal justice system. In
those situations, a person with mental illness who has been
charged with a crime is diverted to a special court.
In Florida, in Broward
county, the judge who's in charge of that court said what's most
important to her is the leverage she has over the system, not
over the individual with mental illness. That's what makes the
difference. The same thing is true when we talk about outpatient
commitment orders. We believe that expanding service options
would accomplish the same ends without coercion, without the
trauma of a court appearance and without violating the
individual's right to make decisions about their own health
care.
I next want to talk about
how the research about outpatient commitment has been
misrepresented, because we think it's important, before you
consider making sweeping changes that proponents of community
treatment orders suggest, that you should be aware of the
literature and that you should be sceptical of some of the
representations that have been made to you. The studies, which
are relatively few in number, we would hold, show that it confers
no benefit beyond access to effective community services.
Outpatient commitment has
been offered in the United States-and I'm sure here as well-as a
solution to the problem of people with mental illness who are
homeless, people who are ending up in jails, who are acting out
disruptively or perhaps violently in society, and also-and we
always have to talk about this-costs. It has been a way that
people have proposed of keeping costs down, because you don't
have to hospitalize people's mental illness as much.
Proponents have argued that
only with such laws can certain individuals be persuaded to
utilize mental health services, but most of the studies they rely
on are seriously flawed and some are presented in misleading
ways.
I have attached to our
statement a couple of letters from people who have actually
conducted the research and have said that their research has been
misrepresented. One was from the National Institute in Mental
Health, in terms of some research they have conducted. They say
that people are misrepresenting their numbers. Also, I've
attached a letter from researchers who were involved in the
MacArthur violence study, who have said that their research has
been misrepresented.
It would be very tempting
for us to mischaracterize research for our own purposes all the
time. But as a law professor of mine said, lawyers don't make
anything really productive in society that you can look at. You
can't point to a building and say, "I built that hospital." I
can't say, "I fixed somebody's heart valve." All we really have
are our reputations, and I don't think it serves anybody's
interests for us to misrepresent the research that's out there.
The Bazelon Center would oppose outpatient commitment no matter
what the research said. Thankfully the research we have looked
at, the only research that's reliable, backs up what we're
saying. We've also had conversations with researchers to talk
about how we talk about their studies. We've had a lot of
conversations with the folks involved with the MacArthur study to
make sure we don't overreach when we talk about the conclusions
in that study. I think that's important to keep in mind.
I have to quote. I'm going
to quote from the letter from the researchers who did the
MacArthur study. They were talking about the propensity for
people with mental illness to commit violence, because often that
research is cited when people are trying to get outpatient
commitment laws passed. In one of the last sentences they say:
"Satel and Jaffe are free to pursue this political agenda.
But we wish they
wouldn't distort empirical research when it yields conclusions
they find inconvenient." I that's a pretty strong statement.
I think we all know from
basic research methods that not all studies are created equal.
Only two controlled studies on outpatient commitment have been
conducted in the States. One is the Bellevue study, which was
conducted in New York City. The other was conducted in North
Carolina, and just parts of their results have been released, not
all of them.
The Bellevue study found
that outpatient commitments had no statistically significant
effects for outpatient commitment on rehospitalization rates or
days spent in the hospital. It also found that outpatient
commitment did not improve compliance with medication and
continuation of treatment or reduce the number of arrests or
violent acts committed.
The overall findings of the
recently released North Carolina study support some of the
Bellevue findings that outpatient commitment has no effect on
hospital use. The North Carolina study, which I'll talk about a
little later, found some mixed results for some subgroups,
depending on the length of outpatient commitment, that require
further investigation. In the North Carolina study, hospital use
actually increased for those with a short duration of outpatient
commitment, which was six months or less. The only group for
which hospitalization use decreased was the group that received
more intensive services and outpatient commitments of six months
or longer.
To talk in a little more
detail about the Bellevue study, it is one of the most
comprehensive and best designed studies of outpatient commitment
released to date. The question it sought to answer was whether an
outpatient commitment order by a court contributed any additional
beneficial results when it was compared with the provision of
intensive services alone. All participants in the study received
these intensive, enhanced services. Some were subject to a court
order, and others were voluntary participants. But the key part
was that they all got the same level of services, which is not
necessarily true in the other studies. So you can't say whether
it was the outpatient commitment order that made a
difference.
The findings in the
Bellevue study are conclusive. Comparing those subjected to
outpatient commitment with those who were offered access to
intensive services alone, the study found-the percentages are in
the document here, so I won't go into them, but if you want me to
I will-no additional improvement in patient compliance with
treatment, no additional increase in continuation of treatment,
no difference in the rates of hospitalization, no difference in
the lengths of the hospital stay and no difference in arrests or
violent acts committed.
Because people were
randomly assigned to the two groups, the difficult cases were
evenly distributed between the two approaches. This eliminates
the potential of bias in the selection of which people went to
which groups. Again, that was not true in a number of the other
studies. There was no control group to compare it to, so the
difference may just have been that there were more difficult
cases in one group versus the other.
1930
I think the results of the
Bellevue study help to explain why other studies of outpatient
commitment have been misread to support its effect. Individuals
subjected to a court order for outpatient treatment are often
provided services they have never had access to before, and not
suprisingly, many of them do better. This is the very reason
science is based on controlled studies whenever possible, and in
a controlled trial an attempt is made to isolate the variables
and make it easier to identify the true effect of any one factor.
So if you haven't taken that into account, there are many other
reasons why you could see a difference in the patients' results.
It could be that the state has changed their funding, or it could
be that they've changed the nature of the program. It may not
have anything to do with outpatient commitment, but it may have.
But you have no way of saying that with any kind of
certainty.
We find the Bellevue study
provides strong evidence that outpatient commitment has no
intrinsic value, and where it does appear to have an effect it's
because it has forced the mental health system to commit itself
to helping consumers find acceptable and effective treatment for
their illnesses. All other studies of outpatient commitment have
serious methodological flaws, and their results have been
misunderstood and misinterpreted.
I'm going to speak next
about the North Carolina study, which was conducted by Dr Swartz.
It has serious limitations, as I will say, but I will tell you
what it found in a limited sense and then tell you the problems
with it. It agrees in part and disagrees in part with the
Bellevue study. Overall, hospital admissions and days did not
differ significantly for participants randomly assigned to
outpatient commitment of any length and those in the comparison
control group who were not under commitment. But since only the
hospitalization findings have been published, it's not yet
possible to compare the interpretation of the total effect of
outpatient commitment on the quality of life of the participants,
medication compliance and other important concerns.
As I stated before,
short-term outpatient commitment increased hospital use and
decreased patient co-operation in this study. So outpatient
commitment of 180 days or less actually increased hospital use.
Participants on short outpatient commitments spent 35% longer in
the hospital, 38 days on average compared to an average of 28
days for those who were not subject to an outpatient commitment.
The authors attribute this to an increased sense of coercion and
decreased autonomy among participants under outpatient
commitment.
Now we have a very strange
outcome: Long-term outpatient commitment and intensive services
decreased hospital outcomes. This is contrary to what was found
in the Bellevue study. They found reduced hospital stays only for
participants who remained under outpatient commitment for more
than six months and who also received intensive services of a
median of 7.5 services a month. Neither extended outpatient
commitment nor a higher level of services alone reduced the
chance of hospital
admission. The authors state, "These findings suggest that
outpatient commitment may exert most of its effect on providers."
In other words, the outpatient commitment appears to increase the
delivery of services to participants under outpatient commitment.
The authors state, "This use of outpatient commitment is not a
substitute for intensive treatment; it requires a substantial
commitment of treatment resources to be effective."
I will highlight that the
North Carolina study has several weaknesses you should aware of.
First, they've only released findings on the area of hospital
use. Second, of those who were under outpatient commitment for
longer periods, that group for which they found that outpatient
commitment may have had an effect were not randomly assigned. So
again we're at that problem where it could have been some other
factor in the assigning of groups that made a difference. It also
doesn't describe the service use with the group that didn't get
out-patient commitment. So we have no idea whether the services
they were getting are actually comparable.
The other studies cited as
support have even great problems. I have attached our analysis of
those studies to what you've been given. Just to give you an
example, in a number of those studies the sample group was 20
patients. There's no way you can draw any kind of conclusions
from a group of 20 patients. Also, none of them had a control
group and random assignment.
Let me also say that
outpatient commitment is rarely used. It's typically a hurried
response to a tragic incident, like in New York where Kendra
Webdale was pushed in front of the subway by Andrew Goldstein.
The National Association of State Mental Health Program
Directors, NASMHP, which is an independent body that has taken no
position on the use of outpatient commitment, surveyed all 50
states and District of Columbia. they found that while an
overwhelming majority of the states have outpatient commitment
laws, most rarely used them.
We've seen the same result
in New York. When Kendra's Law was first passed, more than six
months ago, the state estimated that at least 10,000 people would
be subject to outpatient commitment orders. We've now seen at
most 100.
We can speculate about why
this might be true, and I think New York's experience might be
illustrative of what's happened. I think after the initial
elation of Kendra's Law passing, people became aware of two very
disturbing facts. First, Andrew Goldstein didn't reject mental
health treatment. The journalists uncovered information that
showed he had diligently and persistently sought treatment that
was not made available to him. So the state had pushed through
legislation designed to force people who were unwilling or unable
to accept treatment to get it, only to realize that it was really
the mental health system that was unwilling or unable to provide
the treatment. So they rushed again, and have now committed
several more millions of dollars to provide mental health
services that they could have done without passing something like
Kendra's Law.
Another thing they've also
done is gone to voluntary agreements. Again, we're only six
months into Kendra's Law. New York City was the first
jurisdiction to come up with voluntary treatments, because they
didn't want to deal with the litigation. They realized that
perhaps they didn't need to have 10,000 outpatient commitment
orders out there, and that it was better to engage the consumer
in voluntary treatment agreements. That's what we're seeing in
far greater numbers than outpatient commitment orders.
Perhaps outpatient
commitment has not been used because it doesn't really deliver on
all of its promises. Perhaps states thought it was a magic bullet
that would help them to reduce costs and help them reduce
violence. Perhaps it's rarely used because service providers, who
entered the profession because they felt they wanted to do some
good and help people, and whose work was really based on
developing these relationships of trust, feel very uncomfortable
about their new role as mental health police and having to report
on all their clients' missteps with treatment. As the Bellevue
study demonstrates, intensive community-based mental health
services are really the key to addressing the needs of people
with serious mental illness.
I just want to talk really
briefly about some of the unintended consequences of outpatient
commitment that we have seen in the States.
First, there is a problem
that I think other people have talked about, which is that it can
become self-perpetuating in that it bumps to the front of the
line people who have orders, which means that services are not
available to people who might voluntarily want them. In the end,
it means the mental health system may not see people until they
are further along in crisis than they would have been had they
seen them earlier.
1940
That also holds true when
we talk about the coercive aspects, which are not benign. The
court process and subsequent monitoring can be very alienating
and frightening, perhaps particularly to people with mental
illness who may not have had good experiences with the mental
health system. Studies have shown that fear and coercion make
people with mental illness far less likely to seek services
voluntarily. So, again, they may not be known to the system until
far later in their illnesses.
Let me point out that no
study thus far has examined the effects of outpatient commitment
on the system as a whole. Even though it can tell you that
perhaps for this group-let's say that some of these studies are
right and that outpatient commitment reduces hospitalization use
for the group of people who have outpatient commitment orders. If
we say that's true, that doesn't tell you anything about its
effect on the entire system. Are you actually reducing
hospitalization rates for everyone in the system? Maybe not.
Maybe you're just reducing them for the small population but
increasing them for other people because you've made voluntary
services less available to other people. It's something to think
about, and no one has studied that issue at all.
There are also the tragic consequences when
people are picked up for not complying with outpatient commitment
orders. Most states allow people to be picked up and evaluated
for not complying with an outpatient commitment order. It may
sound innocuous, but I can assure you that it can be anything
but. A recent call I had was about a gentleman in Michigan who
refused on three occasions to meet with the assertive community
treatment team. A pickup order was issued and the police came to
his house, surrounded his house, broke down his door,
pepper-sprayed him, threw him to the ground, handcuffed him and
dragged him out to their vehicle, to the hospital where he was
forcibly injected with Halidol. He ended up being released a few
days later because he didn't meet the criteria for inpatient
commitment, but it was a very traumatic experience.
There was another recent
case where a woman was so traumatized, because police were
executing a pickup order, that she had a heart attack and died.
Before she died, she was crying and begging the police not to
take her to see any more doctors. This is not anybody who had
been accused of committing acts of violence in the community; she
simply wasn't returning phone calls. Her neighbours said she
appeared fine to them when they saw her. But she had an
outpatient commitment order, and she wasn't complying.
Some states allow people to
be jailed for failing to comply with their outpatient commitment
orders. We know that jails are not therapeutic environments for
people with mental illness, but that's where people may be ending
up.
In conclusion, let me say
that outpatient commitment has been touted as a miracle cure for
everything from homelessness to the high cost of psychiatric
hospitalization for people in crisis. The research we've seen so
far doesn't support those kinds of claims. The experience of the
many states that have tried and abandoned outpatient commitment
doesn't support those claims.
There are no shortcuts to
treating people with mental illness, and I urge this committee to
use its authority and resources to ensure the availability of
appropriate, effective and voluntary mental health services in
the community.
The Chair:
Thank you very much. We appreciate your presentation and for
coming all this way.
We've got only about four
minutes. As much as I'd love to stretch that, I think we're
already facing the prospect at the tail end of barely meeting our
timeline. Under our system we have to rise when the House rises
at 9:30, so I'm going to use my prerogative to available time so
that the Liberals start the rotation and then Ms Lankin. So you
each have two or two and a half minutes.
Mrs
Bountrogianni: I'd like perhaps the government members
or you to answer this question for me, because it'll make a big
difference in how I look at the research, all the research. There
isn't very much of it. I still question whether this research can
actually be done, given this population. But I'll forget that for
a moment.
How similar or dissimilar
are the involuntary outpatient commitments in the States and what
we are proposing in Brian's Law? Are they identical? Are there
differences? I hear there are medical versus legal orders. That
would make a big difference in how I would interpret the
research. I wouldn't generalize it to potential Canadian cases.
Can anyone comment on that? I'm a big believer in research, and I
don't know if this should make me stop and think even more than I
have to.
Mr Clark:
The model being put forth by the ministry here is the
consent-based model. In the United States they'd call it
volunteer-based, I guess. It's a volunteer committal, in essence.
What we're proposing here is a consent-based model for community
treatment orders, for that community treatment agreement. So it's
a medical model, it's not a court-driven model.
Mrs
Bountrogianni: You referred to it as involuntary
outpatient commitment, which would reinforce what Mr Clark just
said.
Ms
Seltzer: I do, although every state has a variation on
outpatient commitment. In some states they do ask that it be
voluntary in the sense that the person who would be subject to
the order has actually said, "Would you consider this?" In those
states typically it's when the criteria are exactly the same as
for in-patient commitment. This would be a less restrictive
situation. When the criteria are different, as they are here,
that's not the situation. There is no situation where a guardian
can make that decision for you in terms of outpatient commitment.
It's not comparable at all.
I can tell you that because
of concerns about all the different standards that are used by
the states and because of the concerns about the research, there
is federal legislation being proposed to study the issue, because
there are serious concerns like what you have raised, and to also
ask that our National Institute of Mental Health study the issue
in a way that it hasn't been studied already. But I would say,
looking at the criteria for Bill 68, so far, from what I've seen,
I would put this in the category of allowing more people to fall
under the umbrella than fewer. It's one of the more encompassing
statutes that I've seen.
Ms Lankin:
I appreciate so much the time you've taken to come and spend with
us and the thought you've put into this.
I want to make a comment
about the differences between this legislation and the US
legislation. People are saying that it's very different, that one
is a court system and one is a medical order system, which is
quite true. In some ways the court system has the ability to
order the provision of treatment options in the States, which
there are no teeth to do here, other than perhaps the forced
medication, but the other nature of supports which can be part of
court orders in the States don't exist here.
Secondly, if you were to
dismiss the research, it would be quite interesting. A lot of
people have been coming forward urging us to do this because all
the research says that this is very effective. Here we've had
testimony that discounts that, and we're talking about the same
research. In fact, we received today a list of studies from the
Treatment Advocacy
Center in the US which say that all of these but two demonstrate
the effectiveness of this treatment mechanism. I understand they
are actually a group that advocates for community treatment
orders in the US.
The other comment I need to
make is in response to what Mr Clark said about this being
consent-based, agreement-based. I'd be interested in how those
work in the States, because as I read this legislation, you have
to meet the criteria for being sent for an assessment for
involuntary committal here in Ontario in order to be put on a
community treatment order. So there is a counterpoint in people's
minds about the effect of not agreeing.
Quite frankly, the two
criteria that are referred to that a doctor must find that you
meet-there are a number of them, but two of them that you must
find-a series of criteria that would send you for an assessment,
including that you lack the capacity to care for yourself, or an
explicit finding of apparent incapacity, and you've heard
comments about getting rid of the word "apparent." It seems to me
when there are implicit and explicit requirements for a finding
of incapacity, no one is capable of consenting to this kind of
treatment. You fall to the substitute decision-maker in that case
and that, I believe, will be the most often experienced. If it
was simply voluntary and someone was seeking that out, it's not
necessary to have an order of any sort. We may be able to get
there with amendments, but I don't think that's what the act
provides.
Could you tell us about the
voluntary approach, where it exists in the States and how it
works?
1950
Ms
Seltzer: Let me make two comments. The first is, I was
sort of struck by that. It seemed that you had to be found to be
incompetent in this proposed legislation and that's not the case
in any of the outpatient commitment legislation in the States. It
all actually assumes competency. That also brings up the issue of
forced medication. People were assuming that because you had an
outpatient commitment order, you could actually force someone to
be medicated. That isn't necessarily the case, because you
haven't found that they have been incapable of making the
decision.
So it's a very different
situation, which leads me to two places. One is that in
Connecticut, where they recently considered this legislation and
rejected it, they decided instead to adopt a pilot project which
would be a completely voluntary peer engagement model, peer
outreach and intensive services. They decided that would be more
effective, or at least they were going to study to see if that
would be more effective or as effective as perhaps outpatient
commitment could be.
There is also the issue of
talking about whether this is medical or court-driven. I think
one thing to keep in mind is that although the court can have
certain coercive aspects, certainly the medical model has its own
coercive aspects. What the court system can bring to it is a
series of checks and balances and independence that perhaps is
not available when you're talking about a purely medical model.
So when you're talking about the courts, you're talking about
someone who is independent, who has to be independent and who has
public oversight, in a way. People also have the right to
counsel, not just to retain their own but it is provided for them
for free. That's a very different situation as well.
Mr Clark:
Mr Chair, with respect to your previous decision-and I have so
much respect for you, sir-it's rare for us to have an expert come
up from the United States and I'd like to ask for the consent of
the committee for me to ask a question.
The Chair:
All right, on the understanding that it may cost you in a future
rotation.
Mr Clark:
We'll see, Mr Chair.
The Chair:
Keep on time.
Mr Clark:
Thank you for appearing today. I'm just going to ram two
questions together for you here. One, you stated earlier that you
do not support outpatient committals, which is the United States
model of, in essence, a community treatment order. Does your
organization support any form of involuntary committal?
Secondly, there was a
document called An Exploration of Outpatient Commitment's Impact
on Victimization of Persons with Severe Mental Illness. I'm not
sure if you're familiar with it. It was written by Hiday, Swanson
and Swartz and it states, "A North Carolina study of 184 subjects
in a randomized controlled trial of persons with diagnoses of
schizophrenia, schizoaffective disorder, other psychosis or a
major affective disorder found that increased days on outpatient
commitment significantly reduces the odds of victimization."
We've had a lot of
discussion around criminalization of the mentally ill. One of my
concerns has been suicide rates and victimization of the mentally
ill, and yet this document supports the fact that there was a
reduction in victimization as a result of outpatient committal.
Do you care to comment on: (a) Do you support any form of
involuntary commitment; and (b) that document itself?
Ms
Seltzer: I'll handle the easy one first, which is that
we do support involuntary inpatient commitment for people who
meet a certain standard and that is a standard of imminent
dangerousness to self or others. We would not oppose commitment
under those circumstances at all, which doesn't necessarily make
us popular, but that is our stance. We believe if somebody is
truly imminently dangerous to self or others, then they should be
hospitalized. I've nothing more to say on that.
The Swartz study, are you
talking about the 1999 one?
Mr Clark:
It was produced for the American Psychology and Law Society, New
Orleans, February 2000.
Ms
Seltzer: That's not the one that I have. I cannot speak
to that particular study, but I'm glad that you actually asked me
that question because it gives me the opportunity to say that
half an hour is an impossible amount of time for us to share
information.
Mr Clark:
I know, and the Chair is hard.
Ms
Seltzer: And the Chair is really tough. I've attached
some information for you, but I would be very happy to assist
this committee and make our research analyst at Bazelon available to you if you
wanted to hear his analysis of that. He may already have done it,
I don't know. It's not information that I have. I'm a lawyer. I'm
not a social scientist, I don't hold myself out as any kind of
social scientist, but I would be happy to make his time available
to the committee as well to assist you because I think it's
important that you have accurate information. However we can best
make that happen, I would be happy to make that happen.
Mr Clark:
Thank you for coming.
The Chair:
Thank you very much. I appreciate that last offer and the fact
that you have come all this way to make your presentation. We
apologize that the sheer number of people who have expressed
interest in speaking particularly here at the Toronto hearings
have prompted us to create a limit, but we do look forward to
further dialogue as the members see fit and hope you enjoy your
all-too-brief stay here in Toronto.
Ms
Seltzer: Thank you very much.
CONSUMER/SURVIVOR AND FAMILY COMMUNITY
DEVELOPMENT PROJECT
The Chair:
That takes us to our next presentation, the Consumer/Survivor and
Family Community Development Project. Welcome to the committee.
We have 20 minutes for your presentation and it's up to you to
divide that as you see fit between an actual presentation or a
question-and-answer period.
Mr Brian
McKinnon: I'm Brian McKinnon. I co-ordinate the
Consumer/Survivor and Family Community Development Project that
basically has me involved in working with these two
constituencies on education and advocacy issues.
I welcome the opportunity
to respond to Bill 68 or, as it is better known in the community,
the "leash law." Right from the get-go, I cannot suggest any
amendments, as I and many of the people I work with believe that
Bill 68 is a human rights travesty and should be thrown out
forthwith.
Instead, I shall pose some
challenges and questions and focus my remarks on a couple of key
topics, that is, the limits to treatment and the likely impact of
community treatment orders on psychiatric survivors, some topic
areas that apparently most MPPs know very little about-not that
you need to know everything, but this bill does require that you
know more than is evident in this drafting.
It is not my expectation
that these remarks are going to impact the direction of the bill,
but some form of opposition has to be registered as this bill
amounts to the proverbial worst nightmare for psychiatric
survivors, community mental health workers and many family
members. They believe that community treatment orders are an
overwrought response to overblown fears and that the Mental
Health Act is sufficient to protect both the public and an
individual at risk. They also see CTOs as highly discriminatory
and that CTOs can only reinforce negative stereotypes and stigma
against people with mental health problems.
The Minister of Health and
a government spokesperson portray the CTO program as a "balance
of rights and safety," and as "empowering," but really that is
patently Orwellian. How can lawmakers revoke the essential rights
and liberties of thousands of CTO-eligible survivors and say that
it is empowering, as if these people are going to thank you for
it? Yes, there are people who will be thankful for relief from
psychosis, and I can understand why they would feel that way. And
I do understand why some desperate family members will say that
the government did the right thing. However, there are many more
so-called "special interests" who know that there far more
thoughtful and respectful ways to proceed with regard to offering
relief and empowerment than to be, sad to say, so extreme and
duplicitous.
CTOs are troubling in and
of themselves, but the commonsense version that has been prepared
for Ontario is uncommonly cruel and unusual punishment for
psychiatric consumers and survivors. I say that because Bill 68
is written as though it is open season on the mentally ill. The
expanded criteria for CTOs include just about everybody who is
dealing with a serious mental illness, particularly
schizophrenia. The terms of Bill 68 are so broad and wide open
that it can only lead to an increased abuse of power and an
intensification of stigma.
2000
The government says CTOs
are not in response to the dangerousness issue; they acknowledge
that on a proportional level the so-called mentally ill are not
more dangerous than mainstream society. Then why are they as a
group being singled out as being undeserving of their rights as
citizens and needing exceptional and draconian measures? Is it
because the mentally ill are generally seen to be needing need
tough love? Is there a strong fiscal motivation? Will CTOs mean
fewer costly hospital beds, as promised by the psychiatric wing
of the Ontario Medical Association?
Myself, I originally
thought that CTOs would be introduced in a limited fashion as a
response to proven dangerousness; not that I would agree with
that, but I thought that they would be applied in a focused
fashion. But doctors themselves say dangerousness is a red
herring and that CTOs are mainly about the treatment imperative,
that so-called incompetent people have an absolute right to
treatment so that they do not die with their boots on, to quote
an SSO spokesperson.
The last reason is at least
honourably motivated-that is, life-saving-but is it premised on
safety and good outcome numbers? We need to focus on the
treatment that is in store for the subjects of CTOs to answer
that question.
Allowing for the veracity
of schizophrenia as a disease or, more aptly, as a brain
disorder, one would be deluded to think that treatment is a
panacea and, even allowing for the terrible side-effects of the
anti-psychotics, that treatment is sure-fire. Not at all.
Approximately 40% of the people for whom the stuff is prescribed
do not respond in any significant fashion, except for being
heavily drugged. In their case, the worst features of psychosis
may be suppressed but in no way alleviated. In that condition they are by no means
cured. They just become the walking wounded and, as time goes on,
be assured they will become progressively more wounded.
Are you in any way aware of
the effects of the stuff that is commonly referred to as
medication? Even when it is working at its best it is still the
lesser evil. People who can't bear it and stop taking it refer to
it as poison, a neurotoxin. By the same token, I must add that I
am not entirely anti-medication, just pro-informed-consent.
In spite of the
medications' serious faults, there are many people accepting this
treatment because they want relief from psychosis and it is all
that is available. They are frequently living in poverty and
isolation. They can barely tolerate the treatment and now, owing
to CTOs, will face a deepening of stigma and hopelessness. Is it
any wonder that people get paranoid or suicidal?
And what are CTOs going to
do for the people who faithfully take their medications and still
act in ways that are extreme and problematic? The subway pusher,
Mr Cheung, was taking his antipsychotic prescription.
Nonetheless, he was still in crisis, sought help and didn't get
it. CTOs would have done nothing to save the life of that
unfortunate young woman. CTOs would have done nothing to address
Cheung's use of cocaine, his loneliness, his sense of
worthlessness or his deep-seated misogyny.
I visited a family recently
where the man, who happens to be a gentle soul, had faithfully
been taking anti-psychotic medication. Still, I saw in the
bathroom pockmarks where he had been banging on the ceiling with
a baseball bat to get the quiet people upstairs to be quiet.
Later, his discomfort reached a boiling point. He went upstairs
and confronted his quiet neighbours. He reacted to their denials
of noise-making by slapping the woman. This is just to show you
there are clear limits to the value of medication as it relates
to anti-delusional properties and also with regard to
anti-violence properties.
What I am saying is that
weird and tragic things happen to people and to the people around
them, whether they are on or off the anti-psychotic medication.
As the pillar of psychiatric treatment, the anti-psychotics
cannot be relied upon.
The so-called atypical
neuroleptics are by no means problem-free; the risks remain. At a
recent Centre for Addictions and Mental Health forum in London,
ACT team psychiatrists described the problems attached to one
so-called wonder drug, Clozapine. She had to alert the OPP to
find a man who had left town because his blood tests indicated a
critical white blood cell depletion. She was more than a little
relieved they were able to find him in time.
As I acknowledged before,
there will be people who will say: "Thank you for CTOs. They
saved my life." But others will die, and recent deaths at Queen
Street bear this out. Two of the people who died were on
Clozapine and were only in their 30s and 40s. These were people
whose deaths are owing to the treatment, complications attached
to the treatment, as well as to the lack of access to good
medical treatment. The coroner can say they died of natural
causes, ie heart failure, but people in the mental health
community generally know otherwise.
What about the 50,000
suicides that have been recently reported with people on Prozac?
What does that number mean to us? Is that just collateral damage
in the war against mental illness or is that a damning comment on
the excesses of corporate psychiatry as well as medical
irresponsibility? And what if the family member, as the
substitute-decision maker, says no to the ordered treatment?
Simply, they can be overruled as not acting in the ill relative's
best interests.
Imagine if that was the
general rule of procedure with other client groups. Take my
nine-year-old autistic son, for example. He cannot talk and
expresses his frustrations or his anger by smacking himself in
the head. It breaks my heart and I want him to stop it. So what
if in seeking help I encountered a specialist who could order
aversive shock treatment, who said that the treatment was in his
best interests and there was nothing I could do about it? I would
be shocked and horrified and I would want to do bodily injury to
that specialist. That wouldn't happen, you may say, and you are
right, one, because I am basically a non-violent person and, two,
because in most areas of human care that level of professional
power now seems backward. So why is it that throwback behavior
and attitudes against the mentally ill are still countenanced by
psychiatry and the government?
By the way, I'm not saying
I wouldn't want specialists to try to improve my son's condition,
but I'm just saying that sometimes there is not a lot that can be
done to address an intractable condition-I'm not saying that
schizophrenia always is, but sometimes it appears that way-and
that we should not put blind faith in self-important authority
figures who purport to know it all, when in reality they are just
experimenting on people who are profoundly challenged and less
fortunate than those of us whose faculties are in good working
order.
Some of the consequences of
Bill 68 for psychiatric consumers and survivors in Ontario:
People will be hard-wired to prescriptions for potent and risky
psychotropic drugs and will likely get no information about the
long-term adverse effects, ie Parkinsonian disorders and
neuroleptic malignant syndrome. The reassuring analogy that is
made is that this stuff is like your insulin equivalent. You will
just have to take it for the rest of your life-that is, if it
doesn't kill you first in those extreme instances. We may see
psychiatrists ordering regular ECT treatments as part of the CTO
package, and you don't know what you're getting into here.
There will be an
intensification of the already widespread epidemic of brain
damage that relates to the widespread use of neuroleptics. The
media will be complicit in this problem because rarely does the
media say anything more about the anti-psychotics than that they
have terrible side effects. To my knowledge the major media have
never done an in-depth story on the risks and dangers of the
anti-psychotic medications. There will be more willful,
aggressive certitude on the part of the doctors, who shamelessly bully and patronize
their clientele. You may doubt that, but be assured it
happens.
If the entire CTO process
is supposed to be in the patient's best interests, who will be
there for the patient when the psychiatric treatment is running
counter to his medical interests and the psychiatrist is too
proud or neglectful to question the wisdom of the ordered
treatment? There are still far too many people being
over-medicated, even though medical evidence shows that the
minimal dosage is the therapeutic ceiling. What's stopping
doctors from getting on board with that simple truism? Why are
people still so seriously overmedicated? Maybe it's not about
therapy. Maybe it's about control, in many instances. What it is
ultimately going to lead to is that people are going to be forced
to go underground to avoid treatment, or worse, give up and take
their own life.
Some closing remarks: I
acknowledge there are situations where people are in desperate
straits and where forced hospitalization has saved people from
hurting themselves or others. I know that sometimes it is
necessary to take firm and decisive action, especially when it
truly becomes a matter of saving somebody's life. But that is why
we have the current Mental Health Act, which already involves
extraordinary measures for extraordinary circumstance. Why do we
need the drastic overkill represented by community treatment
orders? A charter challenge may well show how misguided and
wrong-headed this whole initiative has been.
The Chair:
Excuse me, Mr McKinnon, we've already hit the 15-minute mark.
Could I ask you to wrap up in less than a minute, please?
Mr
McKinnon: Sure. Two minutes, how about that?
The Chair:
No. How about one minute? I've been very indulgent and, again,
we've got a lot of people waiting behind you.
Mr
McKinnon: All right. That'll be OK. Anyway, it's up to
the courts to determine how wrong-headed this has been.
I'll offer one recent court
decision that may give you cause to reflect on the wisdom of Bill
68. In November 1999, an appeals court in Indianapolis ruled that
a schizophrenic patient cannot forcibly be given medications he
or she objects to unless there is clear and convincing evidence
that it will benefit treatment of the condition and not just
control behaviour. The appeals court said that even with an
involuntarily committed patient, the state must show that the
medication substantially benefits the condition being suffered
and not just in controlling the individual's behavior. It added
that the benefits of treatment must outweigh any risks or
personal concerns of the patient.
For real progress to occur
we will need the government, the Ministry of Health and the
institutional mental health system to fairly address themselves
to the reality of psychiatric survivors' problems and struggles.
Instead, there is the Ministry of Health's talk of a mental
health system second to none that is seamless, coordinated and
integrated-so much hype and happy talk which conflicts horribly
with the impoverished and perpetually challenged lives of those
who have been forced on to the margins of this mean-spirited,
tax-cut-obsessed society that is more rapidly going from bland,
to bad, to mad and worse. Psychiatric survivors, their families
and all of Ontario deserve better.
In closing, let me remind
you to remember your power, exercise it wisely and keep your
minds open. Thank you very much.
The Chair:
Thank you. Forgive me, I should have said at the 20-minute mark
that your session was up, but I appreciate your taking the time
to come before us here today, and appreciate the perspective you
brought to the hearings.
2010
GRAEME BACQUE
The Chair:
That takes us to our next presentation, Mr Graeme Bacque, if Mr
Bacque would come forward, please. Thank you for joining us here
today. You have 10 minutes for your presentation. You could make
it a presentation or a question-and-answer period, as you see
fit.
Mr Graeme
Bacque: My name is Graeme Bacque and I'm a psychiatric
survivor. I will not be using the word "consumer" in my remarks,
since I long ago escaped from and have since successfully evaded
the mental health system for many years. There is also the fact
that the term "consumer" suggests freedom of choice. The truth is
that available, voluntary options within the system are already
severely limited and will disappear altogether if this
legislation is enacted. There are clearly no legitimate choices
made available through coercion.
It is my understanding that
we are here to discuss possible amendments to this draft bill. On
this basis, I will say categorically from the start that there is
only one possible valid amendment for this legislation, but it is
one of the utmost urgency. Simply put, this bill must be amended
by immediately tearing the thing into numerous small pieces, then
ensuring that it is placed on the curb for collection with the
rest of the day's trash. This legislation is, purely and simply,
an irredeemable human rights travesty.
If this government were
serious about community safety or enhancing the quality of life
for persons labelled mentally ill, it would instead enact
Edmond's Law in memory of the late Edmond Yu. This proposed law
would place severe restrictions on the actions of the police or
any others who on occasion may find themselves wielding literally
life-or-death power over ordinary people, and would end forever
the prejudicial targeted policing of disadvantaged
communities.
Another appropriate
legislative proposal would be Cinderella's Law, in memory of
Cinderella Allolouf and the numerous others who have died of
gross neglect or abuse in the Queen Street Mental Health Centre
and similar facilities. Cinderella was a person who found herself
placed at the mercy of shrinks and other medical personnel who were so intently
focused on what they believed to be wrong with her mind that they
apparently forgot to provide for what was happening to her body.
Under Cinderella's Law, these irresponsible hospital personnel
would have found themselves facing court proceedings for their
gross criminal negligence, along with the prospect of being
permanently stripped of their professional status.
Still another helpful
statute would be Jennifer's Law, in honour of 20-year-old
Jennifer Caldwell, who died so horrifically when her makeshift
shelter caught fire this past March. Jennifer's Law would
establish in Ontario, once and for all, the natural, inalienable
human right to decent affordable housing and impose a binding
obligation upon governments at all levels to ensure provision of
such.
In addition to the above
measures at the provincial level, amendments to the Criminal Code
of Canada are required that would extend protection under this
country's anti-hate laws, specifically to persons who bear a
psychiatric label. Such would provide some justice to the late
Joey Pace, a homeless man who was viciously kicked to death under
an Oshawa bridge last November by two men who didn't like how
this quiet, gentle soul presented himself to the world. Such
amendments might also have offered some protection to Michael
Wilson, who was the target of a heinous, unprovoked attack that
left him critically burned just before Christmas of 1999.
Such amendments to criminal
law, if properly enforced, would also hopefully block future
attempts by the province to implement spiteful, stereotype-driven
measures such as these proposed amendments to the Mental Health
Act and the Health Care Consent Act. They might also prevent the
recurrence of the yellow, grossly misinformed journalism that
demonized these innocent human beings and basically set the
public stage for legislation of this kind.
What we as survivors
require for our emotional well-being is no different from anyone
else, namely, decent accommodation; meaningful work at a living
wage or accessible, adequate income supports when steady
employment isn't possible; and the support of a strong, caring
community of friends who respect our wishes and right to make our
own personal decisions. It is along this path that lies personal
empowerment and true emotional healing.
What Brian's Law offers us
instead is arbitrary loss of liberty under the flimsiest of
pretexts, being subjected to forced ingestion of body-destroying,
mind-and-spirit-numbing chemicals, even in our own homes, and
still greater demonization at the hands of politicians, media and
members of the public alike. It imposes a possible sentence of
crippling movement disorders such as tardive dyskinesia or
Parkinsonism upon us, or even a potential verdict of death
through neuroleptic malignant syndrome, increased susceptibility
to heat stroke, immune system compromise, or any of the other
myriad known effects of the commonly used psychotropics.
Even worse is the fact that
it makes the move of singling out a specific sector of innocent
persons from the broader community for rights abrogation and
repression on the basis of criteria that are little better than
superstition.
Ultimately, it is clear
that this legislation is intended to serve as a companion piece
to the Safe Streets Act, the plan to enforce mandatory drug
screening upon social assistance recipients, and a
municipality-administered program of targeted policing of poor
and homeless persons. As such, it represents the latest and most
blatant effort by this government to silence and render invisible
the victims of its earlier policy decisions.
If there is one thing this
government can rest assured of, it is that implementation of this
legislation will be vigorously resisted by survivors and all true
advocates of civil and human rights. Such acts of conscience are
the right and in fact the moral obligation of any responsible
citizen when they are faced with a dangerous, unjust farce of a
policy such as Brian's Law.
I have made copies
available of my presentation to the clerk for anybody who wishes
them. I thank you for your time and attention.
The Chair:
Thank you, Mr Bacque.
JOHN DE SOUSA
The Chair:
Our next presentation is from Mr John De Sousa. I believe Mr De
Sousa is here. Welcome to the committee.
Mr John De
Sousa: Thank you for the chance to present what I've
been witnessing for the last 10 years in regard to my son's life.
I'm going to read it because I don't want even a comma to be
missed.
My name is John De Sousa. I
have a son who has suffered from schizophrenia since 1990. Five
years ago he stopped taking his medication secretly, and as a
consequence commanding voices became active. At the hospital,
while waiting for the psychiatrist on call, I asked him what kind
of commanding voices he was getting. He then said that he had to
save the world, and that in order to do so he had to kill the
devil. When I asked him how he would recognize the devil, he
stood up, pointed to me, and said, "You are Satan."
After he was admitted, my
wife was the only person he would visit with.
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At that time, I was less
afraid for my life than for what he could do to himself should he
carry out the mission. Later, controlled by the medication, he
would realize what he had done and he would kill himself as well
because he loves me.
I am a senior and my wife
is getting there too. When natural death terminates our lives,
the community treatment orders will be the only life-saving
factor in my son's life or other lives. I know. I've seen what
may happen. Confirmation of this presentation can be obtained
from Dr Pendharkar, psychiatrist at Credit Valley Hospital in
Mississauga.
In closing, Brian Smith was
not an isolated accident. Brian was a target of commanding voices
that must be carried
out. The government can make it possible that no other Brian
Smith happens again. Thank you very much, sir. This was my
presentation.
The Chair:
Thank you, Mr De Sousa. You've left us six minutes for questions
if you wish to take them.
Mr De
Sousa: I just have a comment. I'm sad; there is a reason
why no patients who suffer from schizophrenia come themselves to
present their cases. Also I'm sad that although I understand the
survivors of mental health who don't want to be forced to take
medication, what I don't accept is the fact that they are
fighting for their rights; they are taking away rights of people
who don't even know they have rights when they are suffering with
schizophrenia. That's it, sir. I thank you.
The Chair:
Thank you very much. I appreciate your coming down and making
your presentation before us today.
PEOPLE AGAINST COERCIVE TREATMENT
The Chair:
That takes us to our next presentation, People Against Coercive
Treatment, Mr Don Weitz.
Mr Don
Weitz: I have some extra copies of a second submission
that's also from the same group. I'll leave a copy of my own
submission here.
The Chair:
Welcome to the committee. We have 20 minutes for your
presentation.
Mr Weitz:
My name is Don Weitz. I am a psychiatric survivor and also a
person who was once labelled schizophrenic. I certainly know what
it means to be stigmatized and discriminated against and to be
forcibly drugged, humiliated and degraded for many years as a
result of the label. I always thought I was competent and I told
my doctors so. Fortunately, I was never labelled incompetent
while I was locked up for 15 months.
On behalf of People Against
Coercive Treatment, PACT, I am angry but proud to submit this
statement demanding the immediate killing of Bill 68 or Brian's
Law, angry because this bill legislates force and the threat of
force; angry because force and the threat of force are at the
core of coercive involuntary psychiatry; angry because this
committee and government have uncritically accepted psychiatry's
medical model of mental illness and parroted the well-known
psychiatric myth and stereotype about the violent mental patient
and the ideology driving much of this bill, if not all of it.
Interjection.
Mr Weitz:
Yes. I've got it on the right and the left. I certainly am not in
support of the right as you'll soon find out, if you don't know
already. I'm a lefty and a very proud one.
Anyway, that's why this
submission is titled No to Psychiatric Fascism.
First, a few words about
myself and PACT. Almost 50 years ago, I was labelled
"schizophrenic" while going through a normal identity crisis and
was locked up for 15 months in McLean Hospital. That was outside
of Boston. Many of the men I lived with were survivors of
electroshock and/or lobotomy. I was afraid I was going to be
another victim or guinea pig. And I was. Within two months of
admission, I was subjected to the torture of insulin shock, over
50 subcoma shocks and one coma shock in a six-week period.
This so-called treatment
was supposed to cure my "schizophrenia." Instead, it scared the
hell out of me and wasted me. Almost every day as the insulin
lowered my blood sugar to severe hypoglycemia, I suffered
incredibly intense hunger pangs, physical weakness and
convulsions. I once lapsed into a coma and thought I was dying.
The psychiatrists never once warned me of the possibility of
coma, nor of any of these horrendous and debilitating effects.
When I told a psychiatrist the insulin was torturing me and
pleaded with him to stop the treatment, he laughed and said my
complaints were just evidence of my illness or lack of insight,
the same type of response, the same type of duplicity and deceit
I've encountered in many psychiatrists today at Queen Street, at
the Clarke, you name it.
By the mid-1960s, insulin
shock went out of psychiatric fashion, partly because of its high
death rate, which I once read was as high as 5% to 7%. But it was
never banned or outlawed in North America. Dr. Frederick Banting,
co-discoverer of insulin in Toronto, never once publicly
criticized its use in psychiatry. He should have.
Today, though, we have
better treatments, right? Electroshock, ECT, which is much
faster, more efficient than insulin shock in causing brain
damage. The chief targets of electroshock are women, yes, women,
particularly elderly women. I have statistics to back up
everything about shock treatment over the last 15 years in
Ontario. An alarming number of children have also been shocked,
another well-kept secret in North America, but not in England and
other places in Europe. Despite serious criticisms in the medical
literature as well as media protests in Canada and the United
States, electroshock is still legal in every state and province.
It should be banned. It's a crime against humanity.
After release from
incarceration and forced shock treatments, I promised I would
never again become a victim or guinea pig of psychiatry, and I
haven't. Instead, I've become an anti-psychiatry and human rights
activist in the worldwide psychiatric survivor movement called
Support Coalition International, a coalition of approximately 80
survivor and advocacy groups in 11 countries including Canada and
the United States. Since the early 1970s, psychiatric survivors
and human rights activists have been organizing and fighting back
against psychiatric oppression.
People Against Coercive
Treatment is a proud member of SCI and the No Force Coalition in
Toronto. You'll be hearing more about the No Force Coalition, I
believe, when Erick Fabris talks this Wednesday.
2030
PACT is a grassroots
organization of psychiatric survivors who came together in the
winter of 1998 to fight against the Harris government's proposed
amendments to the Mental Health Act. Those proposed changes
included forced
outpatient treatment in other words, forced drugging in the
community. Psychiatric survivors and their advocates at the time
were not invited to participate in the government's five-week
secret consultation on mental health reform approximately two
years ago.
In February l998, when Dan
Newman, the legislative assistant to Health Minister Elizabeth
Witmer, chaired a community meeting of over 100 psychiatric
survivors and advocates at the Raging Room restaurant in downtown
Toronto, every one of us who spoke out-and there were close to
30, if I remember correctly-told him we were totally against the
"reforms." Why? Because they featured forced treatment and
threatened our freedom and other human rights, just as Bill 68
threatens to do now. Nevertheless, in their so-called community
consultation report, Newman and Witmer arrogantly and
irresponsibly ignored our flat rejection of their mental health
reforms and caved in to the lobbying of the Schizophrenia Society
of Ontario, the Ontario Medical Association and the Ontario
Psychiatric Association. All these organizations are heavily
funded by the drug companies and support forced drugging and
locking up family relatives and other citizens labelled
schizophrenic or seriously mentally ill-which is the going term
these days, whatever that is; psychiatrists can't even define
what mental illness is, never mind "serious"-people who have
already been seriously abused, permanently damaged and
dehumanized by so-called safe and effective brain-damaging
neuroleptics such as Haldol, Thorazine, Clozapine and Zyprexa;
antidepressants such as Prozac, Paxil and Zoloft as well as
electroshock, physical restraints, solitary confinement and the
daily humiliation, degradation and abuse of psychiatric
incarceration.
Under a community treatment
order, the treatment typically consists of neuroleptics and/or
antidepressants. Both types of so-called medication cause many
serious psychological and physical effects including apathy and
indifference, painful and involuntary movement disorders, brain
damage and death. As listed in PACT's educational package, titled
Justice Rights Freedom Denied, which you should have because it
was passed around as relevant background material, these are the
main effects, not side effects, of psychiatric drugs which the
public generally does not know because the psychiatrists, drug
companies and corporate-controlled mainstream media don't want
you and other citizens to know. They're afraid that if we have
this information, we-that is, the survivors and people locked
up-just might refuse their safe and effective medication, which
would mean less income for doctors and less profit for drug
companies and the media.
Listen to these effects,
all documented in the Compendium of Pharmaceuticals and
Specialties and the Physician's Desk Reference, the standard
reference works in medicine: lethargy, depression, apathy,
nightmares, impaired thinking, vomiting, emotional dullness,
fainting, dizziness, blurred vision, eyes stuck upwards,
drooling, constipation, skin rash, amenorrhea, impotence,
epileptic seizures, liver disease, infections, intestinal
paralysis, heart problems, low blood pressure, painful muscle
cramps and spasms, arching of the back, restlessness,
Parkinsonism, zombie-like effect and sudden death. Since the vast
majority of doctors do not warn or educate their patients about
these many common and serious effects, the ethical-legal
principle of informed consent is routinely and shamelessly
violated.
Members of PACT and the No
Force Coalition and thousands of other psychiatric survivors will
resist any bill or law which subjects us to more forced drugging,
more electroshock, more torture, more incarceration without a
hearing or trial and more violations of our human rights.
In the United States, a
community treatment order is called involuntary outpatient
committal, or IOC, as you just heard from Tammy Seltzer. Both
sanction forced drugging. In the United States, IOC bills
frequently authorize court-ordered treatment. Some people have
died while under this court order. Take Ricky Herron, an
African-American man who was only 35 when he died suddenly while
under a court-ordered treatment in Eugene, Oregon. Here is an
excerpt of a report on Ricky's death:
"Ricky was under a court
order, and was required to take a powerful neuroleptic
drug-Clozapine-over his expressed objections.
"Two eyewitness mental
health workers testify that Ricky complained of side effects, but
higher-ups ordered that his complaints be ignored.... Ricky was
showing signs of a syndrome known as neuroleptic malignant
syndrome, but staff had never received training about this
potentially fatal hazard. Ricky managed to walk into Lane County
Mental Health headquarters, where he collapsed. He died on
January 27, 1995. For a year, no report came out of LCMH, but
anonymous sources directed us to the hospital autopsy report. The
autopsy showed the Clozapine had literally fried Ricky's neuron
cells, causing neuroleptic malignant syndrome.... a lawsuit ...
is pending."
It could just as well have
happened here in Toronto.
Just as alarming, there is
scientific proof that powerful neuroleptics such as Clozapine,
Thorazine, Haldol, Modecate and Zyprexa can change the structure
of the brain, in other words, cause brain damage. I've listed two
major recent very authoritative references you should definitely
read if you're concerned about how so-called safe and effective
these great miracle drugs are while people under court order are
subjected to them. As we speak, thousands of my brothers are in
great danger of developing neuroleptic malignant syndrome, which
has a 25% to 30% mortality rate in Ontario. No one mentions this
in the press-a big secret.
No doubt there are other
Ricky Herrons. Unfortunately, drug-related deaths are rarely
reported or publicized in Canada and the United States. I predict
there will be more such tragic deaths, just as there is an
alarming increase in numbers of homeless deaths, as CTO laws are
soon enforced in Canada, unfortunately, by the police and the 51
assertive community treatment teams, the so-called ACT teams, proposed last
month by Health Minister Elizabeth Witmer. We understand there
are currently over 20.
Bill 68, particularly the
CTO section, is based on and promotes two myths, but I'll
emphasize one because it gets played every time there's a death
involving a psychiatric patient. This is the myth that mental
illness and violence are inextricably linked. The violent mental
patient is on the loose. You have to catch him with CTOs. The
other myth is that psychiatrists or physicians can predict
violent behaviour, when they absolutely cannot. Even the American
Psychiatric Association admitted that they can't in a famous case
in California in 1983.
The myth that the mentally
ill are more violent than sane or normal people is still
irresponsibly propagated by many reporters, editors and producers
in the mainstream media in Canada and the United States. I know
what I'm talking about, because I monitor it a lot on the CBC and
others and in the Star, the Globe and you name it. The frequent
use of the word "order" and the alarming expansion of police
powers targeting allegedly mentally ill citizens in Bill 68
reflect this myth. Here are a few excerpts from scientific
articles published in medical journals over the last four years
exposing and denouncing this myth and cited in the PACT
educational package, which you have:
"The combined evidence ...
indicates that ... persons with psychotic diagnoses are less
likely or at least no more likely to commit violence." I'll just
skip down, because I know that time is running out.
"Most patients with severe
mental illness don't pose a danger to themselves or the
community." It's worth repeating: The vast majority "don't pose a
danger to themselves or the community."
"Sensationalized reporting
by the media whenever a violent act is committed by `a former
mental patient' ... a weak association [exists] between mental
disorders and violence.... Serious violence by people with major
mental disorders appears concentrated in a small fraction....
Mental disorders ... account for a minuscule portion of the
violence that afflicts American society." That's from the
well-known and frequently quoted Monahan and Arnold consensus
study.
"There was no significant
difference between the prevalence of violence by patients without
symptoms of substance abuse and the prevalence of violence by
others living in the same neighborhoods who were also without
symptoms of substance abuse.... `Discharged mental patients' do
not form a homogeneous group in relation to violence in the
community."
I'll skip down, because
you've seen others here.
"People who suffer from
depression, anxiety, schizophrenia, an eating disorder or any
other type of mental disorder are somehow more violent"-that's
the stereotype-"than others." This simply isn't true.
The main trigger for
violence for many people is substance abuse, that is, some kind
of addiction. It has nothing to do with so-called mental
illness.
2040
In medicine, there is
absolutely no justification for forced treatment without informed
consent, except in cases of life-and-death emergencies.
Psychiatric emergencies and "mental illness" are in the minds of
the controllers. Drugging, electroshocking or lobotomizing people
against their will or without informed consent, I remind you, is
assault, an offence under the Criminal Code of Canada.
Just to wind up, I want to
say that I was privileged to be an invited juror at the
international Foucault Tribunal in Berlin, Germany, in May 1998.
I insist that I have to read this because this is not known. This
has never been published in Canada. This is a historic statement
against the use of force in psychiatry under any circumstances.
This was an international, 11-member jury from four countries:
Germany, Israel, the United States and Canada. It goes like
this:
"We conclude that, being
unwilling to renounce the use of force, violence and coercion,
psychiatry is guilty of crimes against humanity: the deliberate
destruction of dignity, liberty and life. Most of all through the
legal category of "mental patient" which permits a total
deprivation of human and civil rights and the laws of natural
justice.
"Furthermore, psychiatry
cannot pretend to the art of healing, having violated the
Hippocratic oath through a conscious use of harmful drugs, which
caused in particular the worldwide epidemic of tardive
dyskinesia, as well as other interventions which we recognize as
tortures: involuntary confinement, forced drugging, four-point
restraints, electroshock, all forms of psychosurgery and
outpatient commitment.
"These practices and
ideology allowed the psychiatrists during the Nazi era to go to
the extreme of systematic mass murder of inmates under the
pretext of `treatment.'
"Psychiatry not only
refuses to renounce the force it has historically obtained from
the state, it even takes on the role of a highly paid and
respected agent of social control and international police force
over behaviour and the repression of political and social
dissent.
"We find psychiatry guilty
of the combination of force and unaccountability," and you've got
the rest of the statement.
In conclusion, I have to
say that this bill is one of the most repressive and unjust. I've
lived in Toronto for over 30 years, and I've been active. This
cannot be justified on humane or ethical grounds.
My major recommendation is
this: Bill 68 must be killed. It shouldn't see the light of day.
If you don't want to withdraw it, then this committee and
government will risk being labeled a promoter of psychiatric
fascism. PACT and other survivor and advocacy groups will not be
silent. We will not be passive. We will actively resist this bill
by any means necessary, because this bill authorizes forced
treatment and directly attacks our human rights. We're sick and
tired of being targeted, and we will not be targeted any more by this or any
other bill from your government. That's all I've got to say.
The Chair:
We've actually gone slightly over time, but we appreciate your
making the presentation.
JOSEPH TEDESKO
AL BIRNEY
The Chair:
Our next group is shown on your schedule as one individual, but
apparently two individuals have agreed to split their time. Could
Mr Joseph Tedesko and Mr Al Birney come forward, please. We have
10 minutes for their presentation, to be split as they see
fit.
Mr Joseph
Tedesko: My name is Joseph Tedesko. I welcome hearing
about the proposed government changes in this bill.
I have a son, who was
confirmed as a schizophrenic in 1983 at North York General
Hospital. At the time he was brought in for assessment, Dr Clark
confirmed that he was supposed to go to Whitby. He kept him at
North York for three weeks. He was on drugs there, like a zombie,
and it was pathetic. I couldn't believe that this was the way
they would help him, but they said that was the start of it.
However, in the three weeks he showed little improvement. I
begged Dr Clark not to send him to Whitby and he said, "That's
the only course I have." I said, "Well, I don't want him to go
there."
They finally discharged him
in the fourth week, and he came home to myself and my wife. We
split up. My wife thought I was harsh and hurting my son, and she
moved out with my son. He got worse and worse. I couldn't help
him. While I was away, she was keeping him, saying, "No, he
didn't go on medication." He was missing school. However, he was
mistreating her, he was seeing things, he had delusions. Nobody
helped him. I called the doctor again-North York General
Hospital-and he said, "If he doesn't want to come in, we can't do
anything."
This went on for three
years. In 1985, I had him committed again, because he broke my
car windows and threatened to kill me. Whether it was true or
not, I was afraid. They picked him up again and confined him a
little while in Queen Street. He wouldn't co-operate, and they
let him out. I said, "Why let him out?" They said, "Let him go
out and burn himself out." That's the answer.
He stayed with his mother.
His mother is older than I am. She's in a seniors' residence, and
he's been going in with her. He's been informed many times that
Metro would kick her out because she cannot have him there. I
bought an old truck and I gave it to him. He's sleeping in an old
truck today. Now he's 37 years old. This is nearly 18 years
now.
He needs accommodation. The
pension he's on-naturally everybody says it's not enough, but
what is enough? He doesn't have rent. You can't get rent of $100
a week. He won't stay with me. He'll stay with his mother, but
she can't take him. She can't live with him. He's abusing her,
and I know that.
He's violent at times. He's
been in court so many times. He's been in court on assault
charges, and they let him go on probation. Every time, the judges
let him off, with a little kindness and a good lawyer. They don't
let him off because he's good; he's not good. Right now he's on
probation, and he's living in a truck on the street. His main
course is, he needs accommodation. Who's going to give him
accommodation?
I agree with this bill.
Hopefully, if it's a reasonable bill, he might be able to go on
medication. How are they going to go about it? I don't know. But
I'm hoping that something will happen before he either gets
shot-I don't think he'll kill anybody, but he's abusing his
mother to the point where I think she won't last long. I can't
take it.
We've gone into debt so
often for so much, it's caused a divorce in our family, and here
I am today pleading, like other parents. I'm bewildered to hear
some people oppose what the government tried to do-not to force
it to a point, but I know there's help. Why are they opposing it?
They don't live in a house where people are like that. They don't
realize. They have a point to say they have rights. Well, what
rights? We all have rights. So I'm pleading.
I'm giving up a little more
time than what I want to say. I could write 10 sheets of
submissions, but I'm going to hand it over to Al Birney, a friend
of mine who has a son in the same situation.
Mr Al
Birney: It is indeed a pleasure to be here this evening.
I appreciate the five minutes you are allotting me.
One thing I would like to
mention is that we're here on behalf of the seriously mentally
ill, not the worried well. I am so happy tonight that we heard
some testimony from the back of the hall saying how they've been
cured. Well, if they've been cured of this disease called
schizophrenia or mental illness or whatever the case may be, then
they are adding to society. They're obviously working people, so
they don't need government aid. We are not here looking for
government aid. We are here to get our kids off the streets.
2050
This won't do me very much
good, to be very honest with you, because I really have a story
to tell. I started two and a half years ago to try and get a
fence on the Bloor Street Viaduct. We have lost over 400 people
there. We have lost an armful of mentally ill people. We hear the
same thing all the time: "If you put a fence on this bridge,
where are we going to jump? We have a right to jump where we want
to jump." This is not important. If you were putting lights in
downtown Toronto, you'd have the same people coming, making the
same presentation.
Three seriously mentally
ill people in every 25 homes, 46% attempt suicide, 12% succeed,
and the majority of these people are not on medication. If they
were, we wouldn't have this problem on the streets in downtown
Toronto. We're not advocating picking up everybody on the
streets, no. But as parents, we have a right.
I have a very brief
statement here I would like to read.
"My wife and I would like to say how grateful we
are to your government, sir, and to the members of the
opposition, for having the courage to deal with long-overdue
changes to the Ontario Mental Health Act.
"Our son has a serious
mental illness called schizophrenia. This is a cruel and
debilitating disease. Its symptoms include hallucinations,
delusions, low energy, memory and concentration problems,
paranoia and thoughts of suicide. Because there is so little
understanding of schizophrenia, there is so little sympathy. As
long as our son was on medication he could cope. He enjoyed a
good quality of life. He enjoyed his family, his work and leisure
time. He had a good rapport with his business associates. Our son
had a charismatic personality," perhaps a little like his old man
here-I'm just adding that.
"However, when he neglected
taking his medication, he became an entirely different person.
His thought processes became impaired and his health gradually
deteriorated to a point where he had to be hospitalized. Like so
many patients, he took the advice of street professionals who
advised him that medication was not necessary for his
health."
These are the doctors who
are walking the streets who have the right to come to our kids
and tell them: "Go off medication. It's going to destroy your
mind." Remember that. However, when he neglected the medication,
this is what happened:
"As parents of an ill
child, we know the part of his brain that is impaired by the
illness is the same part that is expected to decide sensibly on
whether or not to take medication. It is so difficult for us to
stomach the patients' advocates who blatantly deny this
truth.
"As a result of our son's
illness and the hopelessness of his condition, he sought to end
his suffering by jumping off a bridge. We are still awaiting a
phone call or a get-well card from those Philadelphia lawyers who
oppose medication without consequences."
They have never even phoned
our son to see how he is or how he's doing, with a back broken in
a couple of places and just absolutely messed up. You know what
it's like when you jump a length on to a bridge. But these people
never even sent him a get-well card.
"As parents and caregivers,
we beg you to listen to the families of the mentally ill. We are
not paid for our opinions and we are not on the government
payroll. Our opinions are formed from the pain and suffering of
our family experiences, not propaganda. It is distressing for us
to think that some patient advocates and indeed some seriously
mentally ill patients could possibly stifle this much-needed
legislation-CTOs.
"Parents do have an
intimate interest in the well-being of their children. They
should be given every encouragement and every right to seek what
is best for their ill child. Our dream is to see all those
suffering with schizophrenia, and indeed all mental diseases,
restored to health and strength to become functioning members of
society.
"Too many of our loved ones
roam the streets, exiled from health and society, lost in time as
if in a medieval city. Meanwhile, our government does far more to
protect their liberties, including the right to refuse
medication, than to preserve their very lives.
"As family members, we are
not advocating CTOs for all mentally ill patients or homeless,
simply, those ill patients who are a danger to themselves and to
society or have a long history of repeated hospitalization due to
their failure to take medication.
"Patients should have the
right to medical treatment, to have the newest, best medications,
to receive adequate community services when discharged from the
hospital. Many do not enjoy this support due to the inclusion of
the word `imminent' in the Mental Health Act. It is impossible to
reach the second and third bases of recovery when the word
`imminent' keeps patients from the first base of medical
treatment. This word is a hindrance and should be removed from
the Ontario Mental Health Act.
"It is ironic for a
seriously ill patient to tell his doctor he does not require
medication. The very symptoms of schizophrenia are delusions and
paranoia-false beliefs that doctors and parents are part of a
conspiracy to harm the patient.
"Please expand the criteria
for outpatient committal so patients can and must take medication
after they go home. Please represent our family on this most
important life-saving matter. Pass the newly proposed amendments
to the Mental Health Act with swiftness and pride. Many, many
families have been waiting too long for these urgent changes.
There are three mentally ill patients in every 25 homes. Almost
half of those ill patients will attempt suicide and 12% will take
their own lives. Time is of the essence. We need your help.
"Sincerely, Al and Kathleen
Birney."
This is my wife right here
and we've taken the time. We have just arrived in from Europe, so
we've got a bit of jetlag. I want to thank you all so much for
listening. We appreciate this. Our kids need your help.
The Chair:
Thank you both for coming forward and joining us here today and
for the perspective you've brought to our hearings.
QUEEN STREET PATIENTS COUNCIL
The Chair:
Our next group up is the Queen Street Patients Council, if you
could come forward please. Welcome to the committee this evening.
As a group representative, you have 20 minutes for your
presentation, to be divided as you see fit between either a
presentation or question-and-answer period.
Ms Jennifer
Chambers: The Queen Street Patients Council is a
non-profit board of psychiatric consumers and survivors who act
as a voice for the same in the Queen Street catchment area, which
is the GTA now. I'm the outreach advocacy education coordinator
for the Queen Street Patients Council. My job description keeps
getting longer.
Despite public safety
having been mentioned repeatedly in the ministry's consultation
document, this legislation does not in fact address issues of
public safety or restrict itself to forcing treatment on to the
so-called seriously mentally ill. Dangerousness and incapacity
are addressed under the current legislation, as are leaves of
absence and powers of attorney. "Imminent" is interpreted by the
courts to mean within months.
What this legislation does
allow is a much larger cross-section of the population of people
with psychiatric histories to be held in custody and to be
released only after the threat of continued custody extorts
consent to a community treatment order. For example, someone who
spent only two days in a psychiatric facility years before or 30
days three years ago can now be incarcerated or forced to comply
with harmful treatment without having caused any kind of problem
for anyone.
I understand if the Ontario
Medical Association has its way, forced treatment won't even be
restricted to people who have in fact been in psychiatric
institutions. This does not, as they suggest, destigmatize our
population any more than locking innocent people in jail would
destigmatize the criminal population.
People's capable wishes can
be overridden in this new legislation. The family can be removed
as substitute decision-makers if they do not agree with the
doctor. Families can be required to force compliance or to report
on their relatives.
I'm going to address some
of the popular myths that are held in society that support the
belief that expanded committal criteria and community treatment
orders are necessary. The first and most important myth that's
widely socially believed is the myth about dangerousness. It's
difficult to pick up a paper or to look at movie ads without
seeing some association between "psycho" and "killer."
Unfortunately, this tends to be applied to our entire
community.
Recently in Ontario a few
isolated cases of violence by people with psychiatric histories
have resulted in enormous publicity, exaggerating people's fears
about lunatics out of all proportion to reality, ironically
enough. In fact, research shows that people who have psychiatric
histories and are living in the community along with other people
are not more violent than the other people in the same community,
unless they also have a substance abuse problem, which is an
entirely different issue and should be addressed in its own
right.
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Furthermore, psychiatrists
cannot reliably predict dangerousness. Science research has shown
that they cannot predict whether a person will act in a dangerous
manner. In fact, their predictions on an individual level are
wrong over 80% of the time. Even the best research, for example,
the new violence risk assessment guide, hasn't been able to
surpass this on an individual level.
Reading from some of
Canada's foremost researchers in the area of violence, Grant
Harris and Marni Rice at the Penetanguishene Mental Health
Centre, they observe that for offenders at lowest risk, evidence
suggests that supervision, detention and treatment actually
increase the risk of violence.
Diagnosis of schizophrenia
is associated with a lower risk of violence and offenders with
schizophrenia were less likely than a matched control group of
non-schizophrenic offenders to commit further criminal and
violent offences. Recidivism in each group was predicted by the
same variables and these variables are not associated with mental
illness; they are in fact related to age, history of criminality
and violence, interpersonal hostility, rule-breaking etc. They
suggest that what should actually be addressed are changeable
features, such as people's substance abuse problems and hanging
out with criminal peers.
There is a confusion of
cause and effect in the public's mind, in that there is a belief
that mental illness causes homelessness. In fact, the research
shows the other way around is the way that the cause-and-effect
relationship actually flows. People who are homeless become
emotionally and mentally disordered as a result of their
continual vulnerability, the ability to constantly be victimized
by crime without any safe place to retreat to. Research also
shows that more important to someone in any mental health service
is their ability to have stable housing.
The result of this is that
the solution for people living on the street is actually
affordable and subsidized housing, not psychiatric treatment.
Provide the affordable and subsidized housing and then see what
else people need from that point.
The other belief about
people with a psychiatric history is that crises are caused by
problems entirely in their own heads. Even if someone has as
psychiatric history, crises tend to come from life events:
loneliness, poor health, unemployment, lack of decent housing,
poverty. All of these things are what trigger personal crises in
people.
Another commonly believed
myth is that psychiatric drugs are a kind of magic-bullet
solution for people. When we're talking about forced treatments,
I'm fairly certain we're talking primarily about psychiatric
drugs, usually neuroleptics. I also feel I need to mention that
many of the people who presented here today are people who have
had the label "schizophrenia" at some point in their lives and
function without any kind of psychiatric treatment today.
Research shows on average
that neuroleptics, which are the drugs commonly used to treat
people with a diagnosis of schizophrenia, are helpful for a
minority of people, approximately 34%. For this number of people
they delay relapses. Some evidence suggests that even in this
case, neuroleptics are equivalent to placebos or simple
sedatives.
There has been other
research showing that more effective than putting someone in a
psychiatric institution is putting people in supportive housing
in which, in a very small number of cases, psychiatric drugs are
used, but people get the help of non-professional, supportive
individuals who help them work through their crises and their
trauma. There was a study done of this alternative that compared
that approach with putting people in the psychiatric hospital where 100% of them
received psychiatric drugs. In the short run they did equally
well. In the long run the people in the housing did better on
social integration, having friends, that sort of thing. There is
a psychological term that gets applied but I forget what it
is.
As you've heard at some
length today, people are also at considerable danger of harm from
psychiatric treatments despite their success rate being so low.
Side effects will be experienced by 90% of people; 30% of those
people will have side effects that are permanent. When you're
talking about people's brains, this is a very serious situation
to have.
Some other research that's
little discussed is that people who receive a diagnosis of
schizophrenia actually have a fair chance of considerable
improvement, even without psychiatric treatment. There is a study
that found that 27% of people in even a chronic, back ward case
improved completely and had no further psychiatric treatment.
Psychiatric diagnoses have
been shown repeatedly in research to be highly unreliable and
therefore lacking in scientific validity. There is great
inconsistency in the diagnoses that people receive if they simply
go from one doctor to another. The treatment that they receive
flows from these diagnoses, making that also very scientifically
unreliable.
I think people have
explained well and at length today the problems of forcing
treatment on someone. What you may not be aware of is that most
people who are in the psychiatric system are survivors of abuse.
To retraumatize people by forcing substances into their unwilling
bodies is abusive and certainly cannot help facilitate any kind
of therapeutic relationship with someone who might help them to
heal.
It's erroneously assumed
that there are all sorts of good resources available that people
have to be forced to take advantage of. There are resources
people have been asking for for years, that people feel will help
them, that are not available: more non-medical crisis centres,
like the Gerstein centre where there are mobile crisis teams and
safe beds and people who will problem-solve; affordable housing
for people, with supports available to people as they want to use
them; livable levels of income support. There was a study finding
simply supplying people with more money reduced their use of
in-patient hospital beds, actually saving millions of dollars.
Jobs, including consumer-survivor initiatives, provide
incomparable value for social support; real jobs and self-help
advocacies. Self-help and peer support groups vastly reduce the
in-patient hospital days that an individual spends in a year,
again saving the government millions of dollars.
We need accountability for
services-for example, mental health and advocacy-to the people
they exist to serve, consumers and survivors. Among other things,
this also ensures value for money.
I'm going to read a little
excerpt. Something that's popularly believed, and hopefully,
you'll tell me if we're wrong, is that the people who will be
enforcing the community treatment orders are the new ACT teams
that have been funded. There has been some new research coming
out of the United States, a review of the literature on PAC teams
in the US from which the ACTT model originates. I want to tell
you about some of the negative effects of PACT that have been
found in the research.
There is a large study, a
randomized control trial, of 200 homeless, seriously mentally
ill, leaving an urban jail system by Solomon and Draine. It aims
to test the effectiveness of PACT compared to individual case
management and to a no-intervention control group. This study
noticed the high recidivism rate, 56% among the PACT group,
compared to 22% among case-managed individuals, and 36% among the
control group.
It suggests that coercive
case management may defeat the goal of increased independence and
is antithetical to the general principle of client
self-determination. A second negative effect possibly related to
the coercive elements of PACT is increased incidence of suicide
in PACT settings. One study reports eight clear-cut and one
possible suicide among the subjects. It was a long-term study
conducted by the PACT originators. There may have been one
additional suicide in that study as well. It's hard to
determine.
Another study, by Hoult and
colleagues, reports that during the eight months presenting at
Macquire Hospital 10% of the project, but none of the control
patients, were reported by relatives as having attempted suicide.
Another study found in the cohort of 189 patients, five died of
self-harm in the 20-month study, three PACT, two control. Several
PACT patients were judged to be improved by a PACT expert
immediately before they committed suicide. This points to the
problematic nature of psychiatric evaluations. Psychiatric tools
appear to be unreliable, both in preventing suicides and in
identifying suicidal individuals. These three PACT suicidal
patients had unusually persistent care, which raises the question
of whether coercive scrutiny can be counter-therapeutic.
All the research that I've
presented in our paper is available to you. I've brought some
articles along today, if you have any interest in exploring these
issues further. You're welcome to contact us for any more
information that you want.
The Chair:
Thank you very much. That leaves us about two and a half minutes
per caucus for questioning. Ms Lankin, the rotation starts with
you this time.
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Ms Lankin:
My apologies. I was trying to ascertain whether Wednesday's
Hansard is available yet. I don't actually desperately need it
for tonight, but I would like to have that as soon as they can be
done. I understand the competing needs of the House with night
sittings, how much that is, but it's helpful as we are going
through these to be able to refer to some of the things people
say, not just what's on the printed text that we receive.
One of the questions I
would like to put to you, given your role in advocacy and
patients' counsel work within the system, is to get your comments
on a proposal I have been floating at the hearings so far about
establishing a mental
health advocate's office, a concept similar to the British
Columbia office of mental health advocacy. From my understanding
it's similar to the office of the child advocate here in Ontario.
It is not a patients' advocacy. We have those in the system and
they play an important role, but it's to look overall at the
mental health system, to understand where our system is not
serving people well. I think maybe the only unifying issue out
there between those who support and those who oppose community
treatment orders is an understanding that there is a lack of
resources and that individual patients looking for help and
resources and family members looking for help for their family
members have a difficult time.
I think it might be
advantageous to have someone overseeing that, monitoring that and
reporting back to the ministry and the Legislature so that
information becomes available. It also, if this legislation is
passed, could provide the role of monitoring the implementation
of the legislation so that we understand in the long term what is
happening. Is it working? Is it living up to the promise that
those who so desperately want to get help for their family
members believe it will live up to? Is it living up to the
horrors and the nightmares of those who are so afraid of the
imposition of this kind of regime? I have no doubt that if the
government proceeds, we will all do what we can to make this work
well as opposed to badly, but to have some kind of a monitoring
mechanism of that and resources in the system.
Do you have any comments
about that, how it would work, and whether you think it would be
helpful?
Ms
Chambers: You're talking about basically a systemic
advocacy program that might also have, say, a research
component?
Ms Lankin:
Yes.
Ms
Chambers: It sounds like a good idea. I would hope that
it would have significant involvement of people who have been
recipients of psychiatric services.
Mr Clark:
First, just to correct the record, at no time have assertive
community treatment teams been touted as the enforcers for
community treatment orders. I'm not sure where that came from,
but at no time has the government proposed that. Assertive
community treatment teams may play a role or a component in
providing service to a patient that has an agreement with a
physician or psychiatrist for a CTO, but they're not the
enforcers. It was never proposed that they would be.
One of the concerns I have
had throughout this process, and my colleagues here can attest to
that, is the issue of victimization and the issue of high suicide
rates among the seriously mentally ill. It's never been, for me
personally, an issue of protecting society. I know that's what
the press has portrayed it as; I understand that. I think there's
a larger degree of concern for me about the number of suicides
that occur.
I have to tell you, I had a
lady visit me whose son was caught in the revolving door, and he
eventually committed suicide. He's not the only one. I've had
three or four come to me in my own constituency office. Do you
feel that a community treatment order wouldn't help individuals
like that, where they're simply refusing to take their treatment?
You can't possibly be telling me that they have a right to commit
suicide.
Ms
Chambers: I don't think that community treatment orders
would reduce the risk of suicide. I think what this study shows,
for example, is that coercive relationships between service
providers and their clients actually seem to increase the risk of
suicide. In addition, psychiatric drugs such as antidepressants,
for example, have often been shown to increase the risk of
suicide. In fact, they're often used to commit suicide.
What reduces suicide risk
is primarily social connection, self-help, having a meaningful
opportunity to do something like work just to give you a reason
to get up in the morning, living in housing that isn't a
nightmare to live in. We have to try these measures to reduce
people's risk of suicide before we do anything to impose
something on someone, which can only reduce their sense of
self-esteem and self-worth and their ability to trust others.
Mr Clark:
You can understand the difficulty the families might have, where
they've seen their son or daughter react fine to the medication;
there are no suicide attempts while they're on the medication.
They come off it and that's when they become suicidal. You can
see why they would believe that being on the medication is the
only thing that's saving their son or daughter's life. You could
understand that.
Ms
Chambers: Yes. Every case is different. Sudden
withdrawal from drugs, for example, can also cause people to have
severe reactions. I can't really address these particular
people's cases.
Mr Patten:
You referred to examples where part of the population may not
respond to drugs or some parts have adverse effects, and I don't
dispute that. What we're really talking about, relatively
speaking, is a very small, perhaps less than 2%, 1% of
hospitalized individuals. It's 1% maybe of the 1% of the whole
population with mental illness. It's that group, for me-my
motivation in attempting to deal with this is to put a stop to or
to try to get someone treatment; not to control them, for God's
sake, but to get them treatment, because every time they go into
the hospital-and it's happened. I've got case after case; in some
cases, 155 times, if you can imagine. The person has never been
able to be well because as soon as the person is stabilized-not
well, just stabilized-that person is able to say, "Thank you. I'm
out of here," and has a right to leave. The person leaves, goes
somewhere, whatever it is, maybe feels better, maybe doesn't, and
the meds are down the toilet. Three months later, four months
later, boom, he's back in the hospital again.
That revolving-door
syndrome, as you know, is a very tiny percentage of the total
population, even in the mentally ill category. It's a subgroup.
It is a group where there are people who are desperate, either
for themselves, the worry of a family or what have you. We heard
tonight from a couple of parents. I hear this all the time. Three
weeks ago I had a phone call that one young fellow had committed suicide, finally. He
was never able to get the treatment. I'm asking you-
Interruption.
Mr Patten:
No, I don't understand that.
The Chair:
Come to order.
Interruption.
The Chair:
Mr Weitz, you're out of order. This is your last warning, please.
We listened to your presentation.
Interruption.
The Chair:
You started with the trampling on the rights of free speech. Mr
Patten is just as entitled to his point of view and his question.
I'd ask you to reflect on that and the somewhat ironic position
you're putting yourself in. Please come to order or I'll have
security remove you. Mr Patten.
Mr Patten:
My question is about that tiny group who have responded well in
the past. Do you have a response to that or do you just say, no,
everyone is totally free to even place themselves in a continual
non-well situation?
Ms
Chambers: With respect, sir, the legislation actually
does allow a very broad section of people to be coerced. The way
this legislation reads, it would allow a much broader section of
the population to be institutionalized and subsequently to be
treated because it doesn't require the person to be any kind of
danger to themselves or anyone else. All it requires is that at
some indefinable point in the future they're liable to physically
or mentally deteriorate. Actually, the way the legislation reads
does not restrict it to a very small percentage of people.
I question whether if
something is considered to be very helpful from the perspective
of the individual, they would stop being involved with it. In my
experience, if people on an individual level find something to be
very helpful, they do continue with it. There is some research
that shows that a lack of what's called treatment compliance is
actually a difference between the service provider and the care
receiver's view of what's important and what's being addressed.
In my experience, if the person is actually getting the problems
they consider to be important addressed, they will continue with
whatever the caring relationship is providing them.
The Chair:
Thank you, Ms Chambers, for coming before us here today. We
appreciate your presentation.
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PATRICIA TESKEY
The Chair:
That takes us to our final presenter for this evening, Ms
Patricia Teskey. I'd ask you to come forward, please. We have 10
minutes for your presentation, to be divided as you see fit.
Welcome to the committee.
Ms Patricia
Teskey: My name is Patricia Teskey. I'm speaking as the
mother, primary caregiver and substitute decision-maker for my
son who has schizophrenia. I am a single parent and he is my only
child. My son lives with me in my home, but has been in hospital
since March 15. He's going to be discharged this coming Friday,
May 19.
My son is not homeless or
on the street. He does not lack social services. My son is ill
and he needs treatment. My son had his first psychotic episode in
September 1996, three and a half years ago. At that time, he was
23 years old and was about to begin his fourth year at York
University. He was looking forward to graduating with a bachelor
of science degree in environmental studies. He was an A student,
and several professors had commented on the quality of his
research and writing. That summer of 1996, he had a summer job in
the field that promised to lead to professional employment after
graduation. He was manager and co-captain of the local ball
hockey team. He was a popular young man with many friends.
In September 1996,
everything changed. My son began experiencing paranoid delusions.
He began being tormented by messages on the radio and television.
He began thinking there was a widespread conspiracy against him
and that the people in control of the conspiracy were a family in
our neighbourhood. I was worried. I took him to our local general
hospital in east Toronto where he was diagnosed as having
schizophrenia. Since September 1996, the world has been a
nightmare of suffering for my son and myself. He has been
hospitalized eight times in less than four years. The last four
hospitalizations have been traumatic for both of us, requiring
that I go to the justice of the peace for a form 2 and call the
police to take him to hospital. Today, at 26, my son is
unemployed. He was unable to complete his university degree. His
former friends no longer phone, visit or invite him out. Most of
our family members avoid contact.
Why has he deteriorated and
suffered so much when new medications are available that have
minimal side effects and when research shows that early
intervention with appropriate treatment can reduce symptoms to
the point where the afflicted person can function well?
During his
hospitalizations, the present Mental Health Act has allowed my
son to be treated while at the same time protecting his rights
through an appeal system. The Consent and Capacity Review Board
has conducted two hearings for my son, both of which have found
him incapable of understanding that he is ill or the consequences
of accepting or rejecting medication. After each hearing, as his
substitute decision-maker, I have consented to his receiving
medication. He has been given the new anti-psychotic medications,
Risperdal, Seroquel and olanzapine, and has not experienced any
adverse side effects. On these medications, his delusions
subsided, his paranoia subsided and his ability to function
significantly improved. In fact, he was able to manage a
part-time job for about a year and a half on the medications. The
problem is that at present no legal mechanism exists to ensure
that my son continues his medication after discharge from
hospital. This is the importance of Brian's Law.
A total of five different
doctors have told my son and I that it is imperative that after
discharge from hospital my son stay on medication and continue
treatment in order to remain stable and able to function.
Unfortunately, the disease itself confuses him and prevents him
from taking his medication. Every time he has been discharged
from hospital, he has gone off medication and his condition has
deteriorated again, leading to yet another psychotic breakdown
and another hospitalization.
As his mother and
substitute decision-maker, I do know that he suffers terribly
from this disease. He is continuously tormented by the voices. He
thinks I can stop them. He begs me to help him. I try to help
him. I take him to the hospital, to doctors. He is given
medication and stabilized and then the present mental health law
lets him down. He is discharged from hospital with nothing to
ensure that his treatment will continue. The cycle of suffering
continues. He has told me that he has wanted to take his
medication, but the voices tell him not to. The disease itself
sabotages him. My son is only 26. What he has expressed all his
life is that he wants to be employed, to enjoy relationships, to
lead a satisfying, productive and fulfilled life. All of his
doctors have agreed that none of these things is possible for him
without his medication.
That is why I'm here today,
to urge you to support community treatment orders. My son is
confused by the voices. He responds well when structure and
clear-cut imperatives are given to him. He does not have the
ability to make decisions. Bill 68 would ensure that my son
continues to receive medication and treatment after discharge
from hospital. Community treatment orders would enable him to
live in the community and, instead of deteriorating, to function
well with his symptoms under control.
Critics of Brian's Law say
there are not sufficient community resources to carry out
community treatment orders. However, in east Toronto, where we
live, there is an ACT team that has already taken my son as a
client. Nurses and social workers on the ACT team have already
visited him in our home and in the hospital and are establishing
a relationship with him. I have seen them establish contact and a
relationship with my son, and you have to be impressed with their
ability. They go into the home where there's a person who is
psychotic. They know what to say, how to act and how to establish
a relationship. The psychiatrist on the ACT team is also on the
staff at the hospital and is able to provide a smooth transition
from hospital to home and community.
People like my son deserve
more than to be abandoned to the ravages of their disease.
Critics of Brian's Law talk about respect for fundamental rights.
What kind of respect does it show if we, as a society, have for
so long stood by and watched them deteriorate, become
impoverished and homeless, suicidal and in some cases a danger to
others, all because of the false notion that medical intervention
would be a violation of their right to choose?
My son did not choose to
become ill. People with schizophrenia do not choose to live with
this disease. They do not choose their tormented, lonely,
impoverished and empty lives. Four in 10 people suffering from
schizophrenia attempt suicide and one in 10 is successful in
ending his or her own life. That is the prognosis for people like
my son if they do not receive appropriate treatment.
On behalf of my son, and
others like him, I urge you to please support Bill 68.
The Chair:
Thank you very much for your presentation. We've used the 10
minutes, but we genuinely appreciate you taking the time to come
down and share those very poignant words with us tonight.
Committee, we stand
adjourned until Wednesday at 3:30, back in this room.
