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
Assertive Community
Treatment Ontario
Dr Ian Musgrave
Dr Lori
Antidormi
Elias and Associates
Consulting Inc
Dr John Elias
Parkdale Community
Legal Services
Ms Peggy-Gail DeHal
Association of Ontario
Physicians and Dentists in Public Service
Ms Debra Eklove
Dr Federico Allodi
Dr Michael Chan
Dr Bill Komer
Ms Yvonne
Jensen
Citizens Commission
on Human Rights
Mr Robert Dobson-Smith
Mr George Mentis
Mr Don
Barber
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 ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Mr Richard Patten (Ottawa Centre / -Centre L)
Clerk / Greffier
Mr Viktor Kaczkowski
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.
ASSERTIVE COMMUNITY TREATMENT ONTARIO
The Chair (Mr Steve
Gilchrist): Good afternoon, I'd like to call the
committee to order as we continue our deliberations on Bill 68,
An Act, in memory of Brian Smith, to amend the Mental Health Act
and the Health Care Consent Act, 1996.
We have a number of
presenters already in attendance and I'd like to call the first
one forward, Assertive Community Treatment Ontario, Dr Ian
Musgrave. Good afternoon, welcome to the committee. We have 30
minutes for your presentation, and it's up to you to divide as
you see fit between either a presentation or question-and-answer
period.
Dr Ian
Musgrave: Thank you very much, Mr Gilchrist. It's
certainly a privilege and honour to be here today. I'm certainly
very flexible with how my 30 minutes is used. I'll try not to
ramble or talk too much to allow any questions that people would
like to ask during this obviously very brief amount of time. I
have had circulated a little bit of an outline of the things I'd
like to speak to, which hopefully people have in front of them. I
should also highlight that I've used the words "my opinion" on
some of the things I'm going to speak to. I am someone who is
directly employed by the Ministry of Health and Long-Term Care,
but I do see my role as, in some ways, also being an academic
thorn in the side to the government to continue to help inspire
best practices of mental health services in Ontario. I wear that
hat as liberally as I need to in order to inspire mental health
reform etc in this province. I can't say I'm speaking on behalf
of the ministry for a lot of the things I do for a living for
them, including perhaps during this 30 minutes, but I'll do my
best to help in any way I can to contribute to your understanding
of the Bill 68.
Just by way of introduction,
I'm a psychiatrist. I worked for the Brockville Psychiatric
Hospital for about 10 years, primarily on services involved with
very seriously mental ill people referred to that hospital for
long-term care, and indeed was on the first assertive community
treatment team in Ontario, which began approximately 10 years
ago. For the last year and a half I've been seconded by the
Ministry of Health and Long-Term Care to help in the
implementation, site visits, nurturing, inspiring as well as
accreditation of assertive community treatment teams since this
ministry instilled a major public policy shift to involve
assertive community treatment teams in the spectrum of care for
the seriously mentally ill. We're also moving towards eventually
evaluating these teams, and my job includes that mandate as
well.
I have just a few very quick
comments as to why, partly, we're here in this room today, I
believe, some perspectives on the bigger picture of mental health
services and why mental health acts are being amended in various
provinces of Canada.
In 1962, there were
approximately 60,000 patients in provincial psychiatric hospitals
across this country. By 1995, there were less than 13,000 people
involved in long-term stay. We had the advent of general
psychiatry units in the 1960s but nowhere near the same kinds of
bed numbers to supplant the provincial psychiatric hospital
census. In other words, through a great deal of optimism, a great
deal of greater attention to least restrictive environments, to
civil liberties, also with a great deal of optimism towards what
new medications could bring to patients who are seriously
mentally ill, most governments around the western world have been
on quite an agenda of downsizing their long-term beds and indeed
their acute care service beds.
To make a Reader's Digest
version out of what has happened during that 30 years or so, I
would venture to say that many, many people with serious mental
illness have been well served, and adequately served, by the
kinds of programs and services that have been put in place.
However, there are many people who have been left outside of any
kind of community tenure with dignity and respect. A lot of
people have grappled with that problem over the past 30 years and begun to truly
struggle with the ways we can support individuals with such
serious mental illness so that they don't just simply get dumped
out on the street, they don't end up back with their families
without adequate support, they don't end up in the criminal
justice system inappropriately and they don't just simply become
revolving door syndromes.
Ontario has been no stranger,
like other places, to beginning to innovate and ask serious
questions about this. In that sense, I truly honour and respect
this current government's last several years of efforts to begin
revamping services which truly begin to close the gap on that
group of individuals whom we typically refer to as being heavy
users of the mental health system. They can be variously defined,
but I'm talking about individuals who have never yet had the
opportunity to live outside of a long-stay institution, have been
there for perhaps years and years, and also that group of people
who are constantly in and out of general hospital psychiatric
units, sometimes for much longer than 60 days in the last two
years, which is a benchmark that's sometimes used to define
people who are revolving-door-syndrome individuals.
In that respect, assertive
community treatment teams do indeed form an important benchmark
and backbone, if you will, for beginning to address that gap.
We've talked about the principles of mental health reform in
Ontario going back to the Graham report, and they are still
echoed in some of the changes we're making. But it has really
only been in the last several years that we've begun to truly
bring about some major agenda changes. While people can be
critical of just how ambitious the rate of bed closure has been,
we can also praise the current government for the ambitious rate
at which they're beginning to implement assertive community
treatment teams.
One of my punchlines today is
that we've now got cheques from Ms Witmer to the tune of about 50
assertive community treatment teams in Ontario, and a very
conservative estimate of the number we probably need to have is
at least three times that many, probably at least 150, to begin
to epidemiologically close the gap on the number of people who
likely deserve such services. I've seen no indication just yet
that the government has intended to stop financing and resourcing
these types of services. That delights me. I'm also delighted
that it's caught up in the health rubric of evidence-based care
paradigms, in other words, the ability for us to begin to set
standards by which these teams operate, accredit them against
those standards and to truly inspire best practices. That's a big
new thing in health in general, and it's certainly a delight
within bureaucratic circles of the Ministry of Health and
Long-Term Care, to see mental health dollars going out with a
great deal more accountability and desire to see how those
dollars are accounted for. That's a two-way street. Obviously, we
work very hard in Assertive Community Treatment Ontario to make
sure that those teams, the public in general and those being
served all have mechanisms to have their own feedback taken into
account in these implementations.
1540
With respect to community
treatment orders and changes to the Mental Health Act that are
being envisaged for Ontario, off the top I'd like to say that I
support the essence and principle of just about everything that
I've seen in print with regard to those amendments. Indeed, a lot
of what's captured is, as I was suggesting, being captured in
many different jurisdictions' desire to truly not leave people
outside the formal mental health system and not leave them
outside the opportunity to receive necessary and needful
treatment.
I'd like to speak
specifically to just a few things and, as I say, try to keep my
comments as brief as possible to entertain any questions you may
have. It's a natural thing to wonder about what the potential
relationship is between community treatment orders and ACT teams.
So I'm not going to speak to the changes proposed in the Mental
Health Act that have to do with the fourth criteria, if you will,
of making it easier for patients to receive necessary treatment.
I certainly support that issue and that's a by-the-by.
Point number 1 is the
criteria overlap between community treatment orders and assertive
community treatment teams. If you read who might be eligible for
a community treatment order in the proposed legislation, it would
not be that unlike who might be eligible for being entered into
an assertive community treatment team. In fact, assertive
community treatment teams have criteria that are a little bit
heavier-duty often than what's defined in the CTO section of
criteria. But more or less we're talking about the same clientele
who are having an awful lot of trouble either staying out of the
hospital or getting out of the hospital in the first place.
The second punchline of what
I'd like to say to you is that by far the vast majority of people
who you might think not only qualify for a community treatment
order but who might be helped by a community treatment order in
fact will simply be eminently helped by being admitted to an
assertive community treatment team. By "vast majority," it's my
best guess that we're talking about 95%. In other words, as soon
as the state begins to provide the appropriate amount of
resources for intensive, comprehensively based services, whose
description is beyond the time we have to get into just now,
you'll truly, in my opinion, have captured the greatest amount of
good you could possibly do for those individuals you're most
concerned about, who are typically, in most jurisdictions, left
outside of benefitting from community reform.
That having been said,
however, it's my hypothesis, it's my thesis that perhaps for
every 100 people referred to services as intensive as assertive
community treatment teams, about 5% of such individuals will not
benefit from those services unless we enact mandatory, obligatory
treatment in the community. In other words, there's quite a
number of people who, through no fault of their own, by virtue of
their illness, usually through a lack of insight into even
knowing they suffer from a serious mental illness, will continue
to revolve in and out of our mental health system, and even after months, if not
years, of services from an ACT service would continue to revolve
or continue to be found very unwell and returned to hospital.
By ACT services I mean people
kindly and professionally dedicated enough to be visiting that
person on a daily basis, to be bringing physician help and
nursing help and all kinds of help in a treatment rehab and
supportive kind of way, in a very intensive way, not being able
to make a dent in some individual's life, where literally the
families and many other components of society at large are
begging you to be intervening and asking, "Is there anything else
you could be doing to help this person's outcome?" More or less,
the answer has sadly been no. We've usually been in the business
of having to observe and watch such individuals extremely closely
until they meet criteria for being "certified" and brought back
to a facility to receive the necessary treatment at that time. So
I really laud the opportunity that service providers in Ontario
will have to address that small group of individuals, in both the
context presumably of ACT services as well as the context of a
variety of other mental health service providers in Ontario.
Point number 2 is the
voluntary ethos of ACT teams. I'd like to emphasize that it's
very difficult to help people who don't want to be helped.
Indeed, that goes for health services of all stripes. We usually
have a lot more emotional debate in mental health because
sometimes the illness robs the person of appreciating that they
may need help. Nonetheless, we really stress in a democratic
society, obviously, the civil rights of individuals, even when
they lack insight. We go to great pains to put in place all kinds
of opportunities for substitute consent when that capacity is not
there. Clearly this legislation addresses that as comprehensively
as the former addressings of the Mental Health Act have. In that
sense, I simply want to say that I support the legislation from
the point of view that it's asking for people's consent. If they
are not capable of giving consent, it's going after the consent
of a substitute person mandated by law. It's in that context that
I would see assertive community treatment teams being involved,
because they are in the business of not pushing themselves on
people who want nothing to do with them.
I'm going to skip to number
5. I've sort of covered 3 and 4 in stuff I've already said. I
want to speak specifically to a variety of implementation issues
in no particular order or importance. Some of these may apply to
more than just ACT teams. But I'd be remiss if I didn't try to
stress what I believe will be important implementation issues for
us to sort out in the coming months if indeed this legislation is
enacted.
I really like the fact that
an issuing physician, who will have the responsibility to enact
such an order, can't name third parties without their consent. A
lot of people were concerned that there may be opportunity for
community treatment orders to involve other parties. You may be
aware that from time to time judges or probation orders etc have
done that very thing, and it hasn't been terribly fair to the
system as a whole not to be party to the kinds of undertakings
that may be involved. That clearly applies to community treatment
orders.
In fact, point number 2, I
truly believe that the typical scenario for ACT teams will be
that they'll likely be involved in initiating community treatment
orders with their sister health-provider colleagues, from an
in-patient setting for individuals whom they know very well. In
other words, this is not an opportunity to round up or newly
identify patients who haven't already usually been well known to
the system. The good news about that is that there's a finite
number of individuals who would qualify for such community
treatment orders; it's not a black hole of need. Assertive
community treatment teams, for example, will be in an eminently
intimate and knowledgeable position to be able to identify
individuals who might benefit from such enactments of a community
treatment order where their previous services have not. So that,
to me, would be the typical scenario for how a community
treatment order would be initiated. It would not be, in my
opinion, a very wise thing for a typical scenario to be for other
people to be trying to initiate a comprehensive community-based
treatment plan in the context of a CTO without involving
individuals who truly have gotten to know the client him- or
herself.
Point number 3, and this may
be harder for you to appreciate at this point in time, I would
truly stress that new assertive community treatment teams which
are just getting off the ground ought not to feel any pressure to
be taking on or initiating community treatment orders early on in
their mandate. That is because a great deal of training and
nurturing and start-up time has to take place for these kinds of
teams to be truly running on all cylinders, if you will. They are
already, in fact, under a fair bit of public scrutiny and
scrutiny from within the mental health system as a whole. They
are in the spotlight. There's a lot of pressure for them to be
truly turning around a lot of people's lives, and I for one
wouldn't want them to feel excessively burdened with a new
pressure to be initiating CTOs as they are just finding their
way. I think it's only a matter of time before services like this
become well-acquainted with those individuals on their roster who
they truly wish a better outcome for, where a CTO may be worth
considering.
1550
My fourth point in
implementation is that ACT teams will need to feel both
clinically and ethically comfortable with their decision. There's
no question we can't deny that there are a lot people who
disagree even with the concept of community treatment orders on a
personal ethics basis. That has led to a lot of emotional debate,
as you know, and a lot of scrutiny of just what's entailed in a
CTO. It goes without saying that a team will need to feel very
comfortable to proceed with something as clinically complex on
many occasions in dealing with individuals who may ultimately
benefit from a CTO. For example, the physician on the team might
feel a little bit or a lot more comfortable than certain health
care providers on that team, but there's no way that physician
could proceed to enact a
CTO unless the team had come to a collective decision. That's
captured in the changes to the act pretty well with this notion
of a free consultative process to truly figure out what, in fact,
would be such a plan. You won't want to deny teams of mental
health care providers the opportunity to reach a consensus around
how to proceed. It won't be helpful if this is in any way
hammered home by an issuing physician, for example, where other
members of the team who will be quite intensively implicated
aren't at peace with the decision at all.
With regard to something the
government set up with respect to ACT teams across Ontario, a
technical advisory panel, I'd just like to advise you as well
that we also will likely be organizing a system of monitoring ACT
teams, especially with respect to their involvement or
prospective involvement with community treatment orders. We've
already spent a fair bit of time on a little subcommittee of that
panel, beginning to understand community treatment orders, and
will likely continue to want to take an active interest in that.
As you know, other provinces have gone down that route of
figuring out how best to do that.
That's my final point here,
even though it's not within the specific agenda of the act
itself. I think Ontario will do well to globally monitor and
study the value and implementation of CTOs, with the capacity to
refine and optimize their effectiveness from a variety of
perspectives: first and foremost, those being served by them,
their family members, from a caregiver perspective, and also
study them from a point of view of measurements of an outcome
nature, their clinical impact, how the rights protection
mechanisms are working and how these kinds of changes to the
Mental Health Act have truly integrated or not integrated with
other aspects of the mental health system. We somehow have to be
willing and able to proceed cautiously enough that we can make
refinements and changes as we go along and find out things that
we may need to change as time goes on. That probably doesn't mean
the substance of the act itself, but more the nuts and bolts of
how they're used and how they're implemented. Just like the
current Mental Health Act has a cultural context, if you will, of
how it's used, clearly we'll need to help guide and monitor how
community treatment orders are used and how to monitor and study
that so that citizens in Ontario benefit the most from them.
Enough of my ramblings. An
opportunity, with the bit of time remaining, for any questions. I
hope I haven't confused you more than-
The Chair:
Thank you, Doctor. We've got about eight minutes, so we're going
to have to ask everybody to try and keep it to about two and a
half or three minutes each, if they could please, starting with
the Liberals.
Mrs Lyn McLeod
(Thunder Bay-Atikokan): Dr Musgrave, I appreciate the
fact that you've said that, although we're making some progress
with ACT teams, we only have a third of what we need to really
provide more comprehensive assertive community treatment teams.
So much of this is a matter of resources. There are a number of
questions that I wish we had time to ask, like how we staff ACT
teams with psychiatrists, given the shortage of psychiatrists,
even if we had the dollars.
But I guess the question I'll
ask you to focus on is, given the fact that we don't have all the
community supports in place to deal with the full range of people
who have serious mental illness in the community, are you
concerned that the 5% who would meet the criteria for a community
treatment order will end up bumping-and you said that the ACT
team shouldn't be under pressure-will these 5% end up bumping the
rest of the 95%? I guess I'm wondering, do you think it would be
appropriate to not proclaim the community treatment orders of
this act until we're satisfied that there are sufficient
community supports for not only that 5%, but for the other
95%?
Dr Musgrave:
Good questions. You're certainly thinking on some very valuable
aspects. We clearly need to continue to progressively and
deliberately put more and more community-based services truly
intent and capable of addressing the needs of the most seriously
mentally ill. That's by far the number one thing. And we're
behind the eight ball like most western jurisdictions that were
downsizing their beds for the last couple of decades. Ontario is
no exception to that. So by far and away, I'd be just as happy to
see us progressively and deliberately resourcing appropriately
intensive and comprehensive community-based services without the
advent of CTOs in the near future. That's probably a fairly
reasonable thing to do.
However, there is no question
we would be leaving some people without capacity to live a life
of community tenure with dignity who otherwise would have had it.
I don't think it's a question of there being necessarily a
terrible competition between this vast majority who don't need
them versus the few who do. They both merit more intensive and
available and accessible services. We need to continue to
advocate that this government or any government doesn't stop
making sure it's got the right allocation of those services. But
I, for one, am just as happy to see us begin to struggle with how
to use community treatment orders and the other changes to the
Mental Health Act now, as opposed to later.
In other words, we'll
nonetheless gain by the experience of enacting them relatively
contemporaneously, even though I've always been concerned that
there's been just too much pressure on seeing some equation
between ACT teams being enacted in order to justify another
agenda of CTOs. Quite frankly, I don't believe that was ever the
case at all. There isn't hardly even that kind of vision around
where either of those were going. Most governments don't think
that far in advance, from what I can see. It's usually a question
of just a great deal of lobbying going on to see mental health
reform move in the directions it should; some shaming process
when they look at neighbours like Michigan and Wisconsin and
Rhode Island and Vermont. Those are the kind of things that
brought about the changes so that ACT teams were enacted. No doubt, for CTOs the
big agenda is the perceived public safety issue, which is really
not a huge agenda item for community treatment orders. As much as
we would all like to hope and wish that safety will in some way
be impacted upon by them, it's not really the huge issue. The
issue is the ability to serve people in a community setting with
a great deal more dignity and a whole lot less suffering than
previously.
Ms Frances Lankin
(Beaches-East York): Thank you very much. I truly
appreciate your spending the time with us here today. Just a
comment first. The remarks that you made about the need to
monitor I agree with completely. In fact, of two of the
amendments that we will be putting forward, one will look at a
sunset provision that requires a review in order for the
Legislature to receive a qualitative and quantitative review of
the success of this program in order to continue it and/or refine
it as necessary; the second, the establishment of a mental health
advocate's office looking at systemic issues and conducting these
kinds of reviews overall of the system. I think we're coming to
the conclusion that this is going to be a necessary part of
making this work.
Your description at the end
of who CTOs may be helpful for, and the importance for that small
group, I think we are collectively struggling with how to make
the legislation bring effect to that. I personally don't believe
the legislation does that as it's written. It's the intent-I
believe completely it's the government's intent; I think it fails
in terms of the actual language.
I was interested in a couple
of things. You mentioned the ACT criteria are heavier than the
CTO criteria. I'd like to ask you to address that. You mentioned
that you're in the process of developing standards and I've
talked about the need to have standards for CTOs. What are we
talking about out there in terms of intensive community services?
Any of the standardized and controlled studies in the States show
that, for the majority of people, those who receive intensive
community services, whether on CTOs or not, improve. It's not the
CTO; it's the intensive community services. So, the criteria of
the standards.
The last thing is, you said
there's still about 5% of the ACT clients that you wouldn't be
able to help, who would need a CTO. I'd like to know what it is
you think the CTO will actually do that will help those clients,
because I would like to get that crystallized and narrow the
legislation to that aspect.
1600
Dr Musgrave:
Another very good set of questions. We don't have time to get
into them the way you'd like and the way that I would enjoy and
like as well. As you probably appreciate at least as well as I
do, the kinds of criteria for a community treatment order such as
Ontario is proposing is much in keeping with most others. The
evidence shows that nowhere near as many people end up getting
served by them as could theoretically be served. That may not
console you too much, but it's a state of fact that almost every
jurisdiction that's bothered to study it that I've understood
hasn't really used them anywhere nearly as much as they could. As
I say, that's not necessarily a strong argument for trying to
refine exactly who to make them serve, but it's worth at least
bringing that up as a starter.
The fact that ACT criteria
and CTO criteria may be similar also doesn't particularly bother
me. There'll be no mad rush by ACT services to want to again, in
any way, enlist the use of that opportunity, even for somebody
who would qualify, when it's totally not necessary. I'm not
concerned about that at all. I'm not sure what else you wanted me
to comment on-the standards of ACT teams and stuff?
Ms Lankin:
Well, just let me ask, what are CTOs going to do for that 5%? How
will that make the difference?
Dr Musgrave:
It's really hard to know how best to quickly put it in a
nutshell, but as I was suggesting, for every 100 people I've
served on an assertive community treatment team, I can name on
one hand individuals who I've known and struggled with for years
who have had the following scenario: When they're in the hospital
with a major psychotic illness, they respond incredibly well to
their treatment and the services provided. They leave hospital
with every intention to continue that, and for whatever reasons,
but clearly reasons tied up with their illness, they end up not
being able to contain their well-being. We're talking about all
kinds of services and intensity of service that pretty well
approximates everything that's going on in that hospital
setting.
Interjection.
The Chair:
No more supplements.
Ms Lankin: I
just want to know-
Dr Musgrave:
Yes, I'm getting there. I'm just going slower than you'd
like.
You go through that time
after time after time again, year after year, month after month,
if you will. What a community treatment order will do is allow
you to intervene by virtue of the non-compliance with the
treatment plan-I'm using jargon, I guess-by the person not being
able or willing to live up to the covenant of the community
treatment order, which will allow you to bring them back to a
psychiatric facility by that virtue.
The sense of, "Is this worth
the hassle?"-in other words, before, you would wait till they
were reaching high-risk and dangerousness. Now you will be able
to intervene in a far more a timely way, uphold the law on their
behalf and help struggle with that patient to say, "You know,
we're really wishing this to make a difference in your life."
That in itself, according to North Carolina studies, shows that
most people will say: "OK, if it comes to that and you really can
intervene with that kind of sincerity on my behalf, even if I
doubt your agenda or your motive, forget it, I'll take those
medicines you've been so kindly offering." A lot of people would
just be obviated by the hardship of this perpetual roller coaster
ride of wellness and psychosis, just by virtue of having that in
place. That's my sincere and honest feeling for a small handful
of people I've been involved with. I've just cried with their
families on behalf of the current outcome.
Mrs Julia Munro (York North): Thank
you very much for coming here today and providing us, quite
frankly, with a different perspective on this issue. I have a
number of questions to ask you, but I realize the prerogative of
the Chair. One quick question: In the sheet that you provided for
us you mention something about new ACT teams ought not to feel
any pressure to be taking on or initiating CTOs. I wonder if, in
a couple of moments, you could give us some advice on that
issue.
Dr Musgrave:
We've got about 50 ACT teams. I'm convinced that some of them
will be quite shy and ethically not as comfortable to be front
lead and cutting edge of implementing community treatment orders.
There'll be some others who, just by virtue of their
personalities and the makeup and maybe the culture of the
sponsoring agency, will be quite willing to get involved earlier.
I'd welcome that kind of variety and that sense of just letting
this evolve in a naturalistic way, without the teams that aren't
feeling in any way-in other words, we'll all learn together.
It'll be the subject of workshops, I can assure you, at
conferences, and all kinds of other conferences as the years go
on, and we'll clearly refine how best to serve clients with them.
That's mainly what I'm referring to.
Mrs Munro: I
think that's a really important notion in terms of professional
education, if I might use that term. Does that cover what you're
suggesting?
Dr Musgrave:
It's frequently asked of me. I train, I visit all over the
province nurturing new ACT teams. CTOs have been coming up now
for the last many months and everyone wants to know your two
cents' worth on it. By far and away you meet a lot of people who
are less than comfortable with feeling that they need to feel
supported in that. I'm convinced they're going to meet patients
who they are going to struggle with ultimately and really wonder
and consider whether a community treatment order may be in that
person's best interests. That's what I'm referring to, as opposed
to somebody saying, "You've got to do it now."
The Chair:
Thank you, Doctor. We appreciate you taking the time to come
before us here this afternoon.
LORI ANTIDORMI
The Chair:
Our next presentation will be from Ms Lori Antidormi. Good
afternoon, welcome to the committee. We have 10 minutes for your
presentation.
Dr Lori
Antidormi: We are the parents of Zachary Lawrence
Antidormi. At the age of two and a half years, Zachary was
murdered by our neighbour. Our neighbour was a 60-year-old woman
with a long history of serious mental illness that went largely
untreated. In addition, she was one of the small proportion of
individuals with serious mental illness who also demonstrate
violent behaviour. Under the current Mental Health Act, our
neighbour remained in the community, untreated and a danger to
others.
We are in full support of the
proposed amendments to the Mental Health Act. In our view, the
proposed amendments represent responsible action that balances
the needs of patients with public safety. From our experience, it
would seem that public safety has taken a back seat for far too
long. In our personal experience, our safety was never
considered, nor was it ever discussed. In the end, and sadly for
Zachary, it became all too apparent that we were not safe.
At the inquest into Zachary's
death, the Mental Health Act came under close scrutiny,
especially the application of sections 15, 16 and 17.
Of particular relevance to
our situation, and the section with which we have the most
experience, is section 17 of the Mental Health Act regarding
police powers. In our view, the proposed changes to section 17
are essential. One change relates to removing the requirement of
the police office to personally "observe" disorderly conduct
before acting to take a person in for assessment under section
17. The proposed change would allow police officers to intervene
where they have reasonable and probable grounds to believe that
disorderly conduct has occurred and where they have reasonable
cause to believe that the person has threatened harm or behaved
violently.
Evidence supporting the
necessity of this change was heard at the inquest into Zachary's
death. Several police officers at the inquest testified that they
did not see any behaviour which would have allowed them to
apprehend our neighbour. Sometimes this reflected a lack of
understanding of the act and the word "disorderly." On other
occasions, when the officers finally arrived at our home,
generally several hours after the call was placed, our neighbour
did not appear to be a threat to us or to herself, and she was
often now behaving in a calm manner. This picture, however, was
quite different from that reported by ourselves and by the
daughter of our neighbour. Yet under the current Mental Health
Act the police officers were restricted from taking our neighbour
to a facility for assessment, as they did not directly observe
disorderly behaviour or were not of the opinion that her
behaviour was indeed disorderly.
1610
Through testimony at the
inquest, we also learned that police officers are trained to use
their discretionary powers while obtaining third-party
collaboration to lay charges under the Criminal Code of Canada.
It is our opinion that similar powers should also be applied when
dealing with a person with a serious mental disorder to apprehend
them under section 17 of the Mental Health Act.
Let me put it this way: The
police did not observe Lucia Piovesan stab Zachary 10 times, yet
they made an arrest. It is our opinion that if they had been able
to act on reasonable and probable grounds, using their
discretionary powers with third-party information, they would
have been able to take our neighbour in for assessment and the
situation would not have escalated to the murder of our
two-and-a-half-year-old son, and Lucia Piovesan would have
received the treatment that her family had tried so hard and so
long to get.
Briefly, I would like to add
that in addition to changes to section 17, we strongly support
removal of the word "imminent" from the current committal criteria.
As the jury at the inquest into Zachary's death revealed, this
word is too easily, and hence too often, misinterpreted. As such,
it represents a stumbling block to correct implementation of the
Mental Health Act.
Lastly, I will suggest that
successful implementation of the proposed changes requires
sharing of information among those involved. At the inquest into
Zachary's death, police officers testified that they did not
share information with admitting physicians as they felt
restricted by legislation regarding sharing of information. In
order for the Mental Health Act to be effectively utilized, all
those involved must feel able to share relevant information.
Thus, in addition to the amendments which address guidelines for
health practitioners and others who provide treatment under a
community treatment order, we recommend the act include
guidelines regarding sharing of information at the apprehension
stage. More specifically, we recommend guidelines for police
officers acting under section 17, and for admitting physicians
making the initial assessment.
Making the Mental Health Act
understandable, easy to apply and somewhat less restrictive is
critical for public safety, and perhaps it is the first step in
ensuring that individuals with serious mental illness, who often
lack insight into their illness, are assessed so that they can
receive the appropriate treatment they need.
In closing, I would just like
to reiterate that, in Zachary's memory and in his honour, we
support the minister's efforts and the proposed changes to the
Mental Health Act. As the jury at the inquest into Zachary's
death urged, it is necessary to implement these changes such that
Zachary's death will not have been in vain.
The Chair:
Thank you very much. That leaves us time for one question and the
rotation up next would be the NDP. Ms Lankin, you have about two,
two and a half minutes.
Ms Lankin: I
thank you for coming today. I know how difficult it is, on a
continuing basis, for you to face this issue, and your strength
and your commitment to seeing change speaks volumes in honour of
your son. We were talking out in the hall and I was saying to you
that we are struggling, in a sense, to ensure that this
legislation actually lives up to the expectations that you have
and doesn't live up to the fears that many others in the
community have put forward. That's the balance we hope to
strike.
Many have said that the
previous legislation, as it was written, actually struck the
right balance, but we've heard from you and others that, whether
the words did or not, the culture and the implementation of it
didn't. Do you have any comments about how we should seek to make
the language more understandable, plainer? For example, dropping
the word "imminent." Some people have suggested replacing that
with what the expectation always was supposed to be, a
three-month period, actually saying "three months." Can we make
this clearer? Because my concern is that as badly as the previous
legislation was interpreted, the changes may be badly interpreted
and we may still remain with the problem.
Dr
Antidormi: I think the changes tried to make it a little
simpler and more understandable and I guess, like we heard at the
inquest, education around what those words mean. Michael Bay
talked at length about what the words mean, and physicians and
police tended to misinterpret, so maybe more objective or almost
measurable types of words rather than abstract words like
"imminent" might help in that regard.
The Chair:
Again, thank you on behalf of all the committee. We very much
appreciate your taking the time to join us and share your
thoughts.
ELIAS AND ASSOCIATES CONSULTING INC.
The Chair:
Our next presenter will be from Elias and Associates Consulting
Inc. Mr Elias, good afternoon. We have 30 minutes for your
presentation. Feel free to divide that between a presentation or
question-and-answer period as you see fit.
Dr John
Elias: I wish to thank your committee for inviting me to
appear to comment on Bill 68. As I am from Saskatchewan, I
consider this a privilege and respect your openness in calling on
people from outside of Ontario to testify concerning this
important legislation.
I support this bill and
congratulate all who have worked to develop it. My only concern
is that it doesn't appear to go quite far enough in establishing
meaningful powers for providers of mental health services to
provide involuntary treatment, either in in-patient facilities or
in the community, to people in serious need who are
non-compliant. I see obstacles and I'm going to identify them as
I proceed.
I now have an independent
consulting practice in organizational psychology, but for 20
years, until 1996, I served in executive management of
Saskatchewan's mental health system and was extensively involved
in the development of Saskatchewan's mental health legislation,
including in 1993 when legislation was passed to enact community
treatment orders. I am here presenting my own personal views. I'm
able to relate some of our experience in Saskatchewan, but I am
no longer employed by the government of Saskatchewan and am not
in a position to make comments on their behalf.
On several occasions since
1994, I have been invited to Ontario to speak about mental health
legislation, specifically about community treatment orders, and
to testify at coroners' inquests in cases where deaths had
occurred as a result of individuals suffering from psychotic
illnesses living untreated in the community.
Failure of sound
system.
Dr Elias: I
had an opportunity to testify at inquests. The first one was in
1994, in Toronto. It was the inquest into the death of Lester
Donaldson-
The Vice-Chair (Mrs
Julia Munro): Excuse me. We'll have a short recess.
The committee recessed
from 1618 to 1620.
The
Vice-Chair: We will resume. Mr Elias, sorry. I must
apologize for technical difficulties here. Please carry on.
Dr Elias: Fine. I had the
opportunity to testify at several inquests in Ontario. The first
inquest was in 1994 in Toronto, the inquest into the death of
Lester Donaldson, which occurred in Toronto, I believe in 1992,
after police were called to a rooming house to deal with a man
with a serious psychotic illness who should have been under
psychiatric treatment and who had become disruptive.
The second inquest was in
1997 in Ottawa, the inquest into the death of Brian Smith, which
occurred in Ottawa in 1995 after the accused, Jeffrey Arenburg,
had been living untreated in the community in a delusional state
and considered the radio station where Mr Smith worked as a
source of his troubles.
Another inquest was in
1997, in Whitby, the inquest into the deaths of two people, a
six-year-old child, Jennifer England, and Marian Johnston, the
79-year-old mother of the accused, Ronald England, which occurred
in 1996 in Bowmanville after the accused had been living in the
community untreated for his psychotic disorder.
These three cases-and I
understand a considerable number of other cases where I don't
have detailed knowledge-raised serious questions about the
provisions in the Mental Health Act and the Health Care Consent
Act. At the time of the inquests, I had three main problems or
issues as I saw them and I testified about these at these
inquests.
First, I viewed the
committal criteria as too narrow. Conditions to be satisfied
before physicians, justices of the peace and police officers
could initiate the process of psychiatric assessment and before
attending physicians in psychiatric facilities could issue
certificates of involuntary admission were overly concerned with
dangerousness in the physical sense.
The second concern was that
too often people were being detained in psychiatric facilities
where there was no authority to provide them with treatment.
Section 10 of the Health Care Consent Act provided that no
treatment is to be given except with the consent of the person,
if competent to give or withhold consent, or the person's
substitute decision-maker, as defined in section 20.
As a result of this manner
of obtaining or failing to obtain consent for treatment, as
that's provided for in section 33 of the Health Care Consent Act,
there appeared to be any number of possibilities for a person who
is in need of treatment to be detained but not treated. This
appeared to lead to many instances of either the absence of
treatment for the person or the misuse of psychiatric facilities
for detention only and not treatment or, thirdly, the discharge
of persons in need of treatment because there did not seem to be
much point in detaining them in hospital because it wasn't
possible to give the treatment.
The third main problem, as
I saw it, was that with respect to persons who were not being
detained but who were outpatients or persons living outside of
hospital, the situation appeared to be the same. There was
provision for leaves of absence but no authority for treatment
while in the community.
At these inquests, I made a
number of recommendations which I have listed for you, and in the
interests of time I'm just going to touch on them very
briefly.
One recommendation was to
broaden the reference to harm in the criteria to be used for both
action to bring a person to examination and also to broaden the
criteria for committal in a psychiatric institution. I advocated
the integration of criteria regarding competency into the
detention criteria so that the question of competency or capacity
to consent is considered at the same time as the other criteria
and that incapacity must be established before detention beyond
the period of examination occurs.
Where incapacity has been
established, I was recommending that you enlarge upon the powers
under section 25 of the Health Care Consent Act to provide
authority for emergency psychiatric treatment until such time as
the question of substitute decision-maker is decided. Then also I
recommended that there be more speedy decision-making procedures
to get a substitute decision-maker established. I also
recommended that where no consent for treatment is obtained,
authority for the detention of the person be nullified. Finally,
I made a recommendation to make provision in the Mental Health
Act for community treatment orders.
Failure of sound
system.
Dr Elias:
I shall move on to more specific comments on Bill 68. Stop me if
you need to.
As I read Bill 68, it
accomplishes a great deal. I applaud those who have developed it.
At the same time, I have some questions and concerns, and except
for the recommendations which I had already submitted at the
coroners' inquests mentioned above, I have not participated in
the debate so I may be missing or misunderstanding some points.
Nevertheless I make the following points.
First, Bill 68 proposes to
broaden the criteria in sections 15, 16 and 17 under which
physicians, justices of the peace and police officers,
respectively, may act to require a person to submit to a
psychiatric examination. It also broadens the committal criteria
in section 20. It would remove the term "imminent" with reference
to "serious physical impairment of the person" and also provides
for a broader definition of "harm" to include the situation where
a person "is likely to suffer substantial mental or physical
deterioration or serious physical impairment." I consider all of
these to be desirable changes. At the same time, I note that the
definition of "harm" is still stricter than that found in many
other similar statutes.
Secondly-and this is the
biggest part of the bill-Bill 68 would make provisions in a
new section, 33.1, for a community treatment order, or CTO, to be
issued. Now I have a few specific comments. Most of these are
very positive features.
The criteria in clause
33.1(2)(a) to be satisfied prior to the issuance of a CTO appear
to be appropriate or at least defensible. It's interesting to me
that your threshold criterion in subclause 33.1(2)(a)(i) is
considerably broader than one adopted in Saskatchewan. You
require only two or more previous admissions to hospital or a
cumulative total of 30 days of hospitalization over the previous
three-year period. It sounds like these admissions could be voluntary admissions. Any
kind of admission would qualify under that criterion. In
Saskatchewan, the threshold requires three previous involuntary
admissions or a cumulative total of 60 days of involuntary stay
in hospital over the immediately preceding two-year period.
I'm not arguing for
differences of time frames, but I do question your use of any
hospitalization or any period of hospitalization to meet that
threshold criterion. It seems to me this would serve to
discourage the voluntary use of hospitals or of health care
providers by those people who need those services. I think it
would be in your interest to limit that threshold criterion to
refer only to involuntary hospitalizations or periods of
involuntary stay.
(b) The requirement in
clause 33.1(2)(b) that the physician, the person or his or her
substitute decision-maker and others collaborate to develop a
community treatment plan is laudable.
(c) The criteria in clause
33.1(2)(c) to be satisfied prior to the issuance of a CTO seem
appropriate and consistent with the best thinking I've seen in
the professional literature, except for one missing item, as I
see it: that the person lacks the capacity to fully understand or
make an informed decision. As I see it, CTOs should only be
issued to apply to persons who lack this capacity. It may end up
that way, but it seems to me that's what it should say.
1630
(d) The involvement of a
rights adviser in advance of the issuance of the CTO, as required
in another clause, appears to me a very progressive step.
(e) The consent of the
person or his or her substitute decision-maker, as required in
clause 33.1(2)(f), is clearly desirable, but I would question
whether this might not be a serious stumbling block. Thinking
back to the several cases leading to the coroners' inquests I
mentioned, it seems to me that all three incidents would likely
still have occurred as a result of the person or his or her
substitute decision-maker withholding consent. It seems to me
unreasonable that what I would consider veto power should be left
in the hands of the person who has been found to be in need of a
CTO. In my mind, CTOs should be issued only with respect to
persons who lack the capacity to consent or withhold consent, as
I already mentioned earlier. Making a CTO, that is, a so-called
community treatment "order" subject to the consent of the person
who's the subject of the order is no order at all but rather an
agreement and one that the person can back out of at any time.
This I see as a real weakness of the bill.
(f) The obligations of the
person who is the subject of a CTO are similar to the obligations
stated in similar legislation in other jurisdictions. I wonder,
though, what powers exist to require that the person meet these
obligations or comply with these requirements. As I read it, if
the person does not comply, he or she may be required to be
re-examined under section 33.3, but in the end there are no
powers of enforcement. Furthermore, under section 33.4, the CTO
may be terminated by the person or his or her substitute
decision-maker simply by withdrawing consent. It seems to me all
the power really is in the hand of the person who would otherwise
be subject to an order, so I don't see this as an order all but
rather an agreement that the person might enter into.
(g) The duration of a CTO
for a period of six months, as provided in another section, is
longer, I think, than provided in similar legislation elsewhere.
In Saskatchewan the duration of a CTO is three months.
Nevertheless I see this as defensible as long as the actual
community treatment plan involves frequent contact between the
attending physician, other caregivers and the person who is the
subject of the order, so that there may be a withdrawal of the
order, as provided in section 33.2, in appropriate
circumstances.
I'll skip another point
which is not so critical-I'll skip the next two. You might want
to refer to the other comments, but I'll go to point (h).
(h) To the extent that I
have studied the proposed changes concerning consultation, the
sharing of information, reviews, appeals and matters of
administration, they appear to me to be appropriate.
With respect to the third
major area of change, Bill 68 proposes to makes changes in the
Health Care Consent Act which are intended to streamline
processes of dealing with persons who lack capacity to make
health care decisions. This is an area rather more complicated
than I feel I can fully comment on since I haven't studied it
enough. I've just recently returned to this issue, but I will
make a few general comments.
First, it still seems to me
that the provisions in section 33 of the Health Care Consent Act
will not permit the system to respond to the needs of people with
serious disabling psychiatric disorders who are non-compliant. I
appreciate the thrust of Dr Musgrave's testimony earlier and
applaud all efforts at voluntary services, getting people to
co-operate by making sure services are available, attractive and
relevant. At the same time, there are a small number of instances
where you're dealing with people who simply will not co-operate
unless there are some meaningful powers in the right hands to be
able to ensure they get treatment, whether they or their
substitutes will agree or not.
In dealing with persons
suffering from seriously disabling psychotic disorders, it is
vitally important that psychiatrists and others be given the
authority to provide treatment as quickly as possible. If the
authority for treatment cannot be given by the person himself or
herself, it should come quickly from someone else who is in a
position to provide the authority. If there is no authority to
provide treatment, in my opinion, except in rare instances of
short duration, there should be no use of hospitals, physicians
and other staff in the health care system to detain people.
Health systems exist to provide health services. I do not
consider it appropriate that hospitals and medical and related
professionals be used to detain dangerous people who cannot be
treated. In such cases, the public merits protection, but
responsibility for this should be exercised by other
institutions, not by the health system. I have to question whether
section 33 contains-I think it's section 33 of that
act-provisions that ultimately allow for all providers in the
system, no matter how good their intentions are or how assertive
they may be in their approach, to actually be helpful.
I will conclude now with
very brief reference to some Saskatchewan data. I've said several
times I'm from Saskatchewan. I had a hand in the development of
the legislation there and know something of the experience up
until recently. I can tell you that under the Saskatchewan
system, where provisions for CTOs were enacted on July 1, 1996,
there has been an average of 50 to 60 CTOs per year since that
date. The numbers vary a little bit, but let me remind you that
in Saskatchewan the maximum duration of a CTO is three months. If
you take the number 60 and divide it into four, because you have
four three-month periods in a year, that means that at any given
time we have approximately 15 persons in Saskatchewan subject to
CTOs.
If your experience were to
be similar in Ontario, even with clauses having somewhat
different provisions here and there, you would have something in
the order of 150 in the province, grand total, at any given
moment or a total of 600 actual-well, I don't know if you'd have
600 CTOs issued, because your duration is longer. But if the
provisions were otherwise similar, you'd be having about 150
under CTO provisions at any given time.
Generally, people do not
remain under CTOs for very long periods of time. Generally, there
are one or two renewals after the first one is issued. We don't
have people remaining endlessly under CTOs. It seems that once
people have been under CTOs, they actually experience some
success of living in the community in a treated condition, and
they actually continue being compliant with treatment. It's no
longer necessary to issue CTOs.
There has not been a formal
evaluation of CTO provisions in Saskatchewan. There's been some
research, some of which I've published, together with Dr Richard
O'Reilly of London, Ontario, but there has not been an in-depth
evaluation of that legislation.
In the end then, I would
like to just make this statement: that mental health legislation
needs to strike a balance between the rights of the individual,
protection of society and the interests of caregivers, including
family members, other primary caregivers and professional service
providers. I do not hold to a dogmatic position favouring one of
these three over the others. I have great respect for individual
rights and would allow a wide margin of tolerance for privacy,
idiosyncrasy and eccentricity. But I would draw the line at
serious danger of harm to others, especially where danger is
presented to people who are particularly vulnerable, especially
children and others living in intimate relationship with a person
or who are innocent bystanders. I personally favour strong powers
for state authorities, police, courts and psychiatrists when
providing health services and, simultaneously, serving a control
function, coupled with strong safeguards against abuse of power,
such as strict accountability, monitoring, reviews and appeals
and so on. I see Bill 68 moving in this direction and applaud
again those who have developed the legislation.
As important as mental
health legislation is, it only provides a structure, a legal and
policy framework within which people may act. To be effective, it
must be accompanied by an adequate system of services which are
accessible, responsive, accountable and delivered by qualified
staff with compassion and commitment, intelligence and
discretion, willing to do their duty and to go beyond the call of
duty, even to take risks on behalf of the people whom they
serve.
Thank you for the
opportunity to make the presentation.
1640
The
Vice-Chair: Thank you very much, Mr Elias. We certainly
appreciate you coming here today to provide us with your
commentary. My apologies for some of technical difficulties. We
have however taken, even with allowing extra time-so I'm going to
ask that we just have questions from one caucus. We are in
rotation at the government members.
Mr Brad Clark
(Stoney Creek): Two quick questions, Doctor, if I may.
One deals with a comment you made regarding section 33.1 of the
act. You suggested that perhaps we should be adding the
terminology "has been an involuntary patient in a psychiatric
facility on two or more separate occasions" etc. As opposed to
not clearly delineating whether they're voluntary or involuntary,
you're suggesting that they should be involuntary and remove the
opportunity for voluntary.
The other thing I wanted
you to address for me is, there was a North Carolina study that
dealt with the reduction in victimization as a result of the use
of outpatient commitment or CTOs. Do you have any comments about
the reduction in victimization of mentally ill people who are
actually on outpatient committal?
Dr Elias:
I am not able to give you a real answer to that question on the
basis of the Saskatchewan experience. The literature does state
exactly as you have mentioned in reference to the North Carolina
study. There are quite a number of other studies that are in the
published literature that make exactly that same point.
Unfortunately, in Saskatchewan there has not yet been a formal
evaluation of it, so I cannot say honestly whether we've seen a
reduction of victimization or harm.
Mr Clark:
The other question was, you suggested we should clarify that it
would be an involuntary patient.
Dr Elias:
The recommendation I made was that the threshold criterion which
is written into one of the sections of the bill be made more
specific so that the threshold criterion in referring to number
of previous hospitalizations or number of previous days in
hospital refer only to periods of time when that hospitalization
was involuntary. That is the point I'm making.
The
Vice-Chair: Thank you very much for being here today to
provide us with your insights.
Mr Richard Patten
(Ottawa Centre): Can I ask through you, Madam Chair, if
on behalf of the committee we might request-your research with Dr
O'Reilly, I gather, is
pretty recent, because we haven't seen it. Would you be prepared
to share that with the committee? Not right now; I mean send it
to us.
Dr Elias:
Most certainly. I'll be happy to send that either to Mr Patten or
to the clerk.
The
Vice-Chair: Through the clerk's office would be the
appropriate thing.
Dr Elias:
I'd be happy to do that. I shall send a copy.
The
Vice-Chair: Thank you very much for coming today.
PARKDALE COMMUNITY LEGAL SERVICES
The
Vice-Chair: I'd like to call on Parkdale Community Legal
Services. For the sake of our technical difficulties here, I'm
going to ask you to use one of the microphones on that table
there. Thank you very much and welcome to the public hearings.
You have 20 minutes to give your presentation.
Ms Peggy-Gail
DeHal: My name is Peggy-Gail DeHal. I'm a community
legal worker representing Parkdale Community Legal Services. I'd
just like to let you know that I will submit a copy of what I'm
speaking about today at the end.
I come here today as a
representative of Parkdale Community Legal Services, an
anti-poverty clinic servicing those with low income in the
Parkdale area. Because we're an agency that provides free legal
services to the poor, we frequently work with many individuals
living with mental illness. This is probably due in large part to
the province's largest psychiatric facility being located in our
community.
During the 1970s, there was
a movement to deinstitutionalize individuals by helping them
re-enter the community with the introduction of medications. This
created a spilling of many individuals into a community that was
ill-prepared with resources. The issues of housing, poverty,
unemployment and mental illness became bred as social problems
without an easy or quick fix.
It is our agency's mandate
to work as legal advocates for those marginalized in our
community by poverty. Unfortunately, many of these individuals
are also living with mental illness, emotional distress and, for
some, the everyday strains of living in the margins of their
community.
Today, I not only represent
Parkdale Community Legal Services but the number of psychiatric
survivor and consumer-survivor groups we work with in the
Parkdale community. I stand here today as an advocate for those
living in mental institutions, mothers whose ill children have
been reduced to guinea pigs, five-year-old children lethargic and
vacant from Ritalin.
Mental illness does not
just happen. Susceptibility requires a stressful trigger, such as
deprivation, abuse, violence, incarceration or a history of
psychiatric drug use. Today, an excitable child or one who exerts
too much energy is given such labels as "learning disabled,"
"attention deficit disorder" or "hyperactivity" while frustrated
and tired parents agree to psychiatric medications as behavioural
control without fully understanding or knowing of the damaging
side effects. How can a small body, full of life and requiring a
special kind of love and patience and understanding, start
consuming deadly chemicals that alter their developing minds and
stay trapped in their small organs? The statistics are
staggering. You only need to check how many prescriptions
drugstores fill a day, a week, a year. Take notice of the many
psychiatric prescriptions filled by drugstores for children in
poor communities. How can we not advocate and provide other
resources when there is such a fine line between mental health
and mental illness?
Most people who have gone
through the psychiatric system do not just wake up one day and
feel like their soul was sick. Many end up there because of a
lack of resources, knowledge and general acceptance of illness
that can so drastically alter behaviours. I am referring to those
on our streets, in our hostels, whose poverty limits their
options and forces them into the system, forcibly consuming
medications whose side effects guarantee a chemical dependence so
that they cannot be here to speak for themselves today. This is
the kind of advocate I appear as today.
Parkdale Community Legal
Services endorses the views of the No Force Coalition, the
Psychiatric Patient Advocate Office, the Canadian Mental Health
Association, family groups and medical professionals who are
opposed to the amendments proposed to the Mental Health Act, in
particular the introduction and implementation of community
treatment orders. Our agency feels that any legislation seeking
to take away an individual's choices is a violation of our rights
under section 9 of the Charter of Rights and Freedoms.
We believe the existing
Mental Health Act addresses the issues of treatment for those
unable to make decisions for themselves. Because there is a
process of certifying an individual through forms, the problem is
the understanding and use of the act. There already exist
provisions for detention as a patient can be certified for three
months while in the community in section 27 of the act. The
Substitute Decisions Act will provide an individual the
opportunity to decide the nature of treatment they desire in
times when they are deemed incapable of making such decisions
themselves. If the Substitute Decisions Act and consent to health
care act were used effectively, community treatment orders would
not be necessary. Forcing people into locked facilities until
they are medicated and paroling them in the community is
criminalizing those most vulnerable.
Dr David Goldbloom,
physician in chief at the Centre for Addiction and Mental Health,
states, "The problem is not the current act itself but the
understanding of the act and the use of the act...." If it was
better understood, if it was less cumbersome to use, it would be
used more. The form 1, which any physician in Ontario can fill
out to bring someone to psychiatric hospitalization for up to 72
hours, is a terribly constructed form. It is almost guaranteed in
its crafting to be filled out incorrectly.
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We support the right of
consumers and psychiatric survivors to make their own decisions
about health care. We oppose the treatment of mental illness as
different from the right of individuals to make informed choices
about life-threatening illness or accidents. We strongly believe
that a vital part of making a safe and healthy choice about one's
care would involve real choice: the ability of diverse resources
in the community, not legislation that takes away an individual's
rights because they refuse to be medicated, and because they
refuse to take medication that often has damaging and
immobilizing side effects or provokes a state of lethargy.
Community treatment orders
constitute arbitrary detention, offending an individual's right
as permitted in the Charter of Rights and Freedoms. This
legislation does not recognize that forced medication is chemical
incarceration, whether in a psychiatric ward or in the community.
The side effects can be damaging, particularly for someone who
has been exposed to multiple psychiatric medications over a
period of time. Community mental health services must include the
provision of alternative options to neuroleptics that have
brain-damaging effects such as clozapine, zyprexa and Haldol.
Families should not be put
in the position to make choices for loved ones when the options
are limited to psychiatric drugs, unavailable hospital beds and
limited or non-existent resources. Families need services that
work towards better mental health while maintaining an
individual's rights and dignity and assist in resolving social
inequalities they experience as a result of their illness. The
existing health care system has put families already in a state
of exhaustion where it is easier to accept quick fixes so their
loved ones are spared from being demonized because of their
mental illness.
Resources need to be put
into the community to provide real options for those who are
mentally ill or in need of emotional intervention. This
government has cut so many services and social provisions for
cost-effectiveness while the proposed ACT teams cost a
disproportionate amount of money and can only service a limited
number of individuals in need. Those same dollars can be spent
opening up a number of services, enhancing training programs,
providing people with social assistance programs so they can be
adequately housed and fed. If this is not about dollars, then it
has to be about social cleansing. This government must invest in
community resources, not in chemical compliance. Forced treatment
violates the rights of the individual.
I have spent the last seven
years as a front-line worker for homeless youth and men and women
who have been in conflict with the law. It is easy for me to make
the connections around how systemically people can be driven to
mental illness if they are susceptible, as I have seen how single
families and individuals have been reduced to homelessness,
unemployment and illness. Suicidal thoughts have been an
increasingly common response to these circumstances. In our
society, particularly the laws that criminalize the poor and
homeless, are worded and legislated separately, yet so many of
the same individuals are recipients of multiple doses of
legislation that hide them from visibility in prisons and on
psychiatric wards.
Most individuals are not
homeless because they are mentally ill; they are mentally ill
while being homeless. The proposed community treatment orders
target the most marginalized population in our communities,
people who are isolated from supports and who are living in
transience.
During my time as a
front-line worker I saw the increasing impact legislation has had
on those living in poverty. The National Council of Welfare says
the poor are more likely to be arrested, charged, denied bail and
convicted than other people. They are more likely to appear in
court without a lawyer. The city of Toronto food and hunger
action committee's preliminary report finds a growing food crisis
in our city, with 20% of Torontonians unable to afford basic
needs and facing difficult choices such as paying rent or buying
food. The report identifies that cuts by senior levels of
government to social programs and a serious lack of affordable
housing are seen as pushing hunger to a critical point in
Toronto.
Instead of solving
problems, this unnecessary legislation panders to public fear and
ignorance regarding mental health.
In a report on the
consultative review of mental health reform in the province of
Ontario, Dan Newman suggests that while moving ahead to reform
the mental health system our government must use the following
guiding principles:
Our government should focus
mental health reform on the quality of life of individuals with
serious mental health problems;
Our government should
recognize the importance of a holistic approach to the mental
health system, one that addresses the broader determinants of
health, including housing, education, jobs and income
support;
Our government should focus
on creating an integrated and comprehensive system of mental
health services which provide a continuum of care for those who
need it, from prevention to community and in-hospital
treatment.
What conflicts here with
proposed amendments to the Mental Health Act is that these
amendments to the act will not enhance the quality of life for
individuals with serious mental health problems. Forcing human
beings to be drugged without choices violates their rights. Those
with disease and physical illness are given the choice whether to
take medications with damaging side effects or not, just like
those charged with a crime are given a fair trial and a release
date at the time of sentencing.
Community treatment orders
are unnecessary. As the Canadian Mental Health Association points
out, "The Health Care Consent Act and the Substitute Decisions
Act, if used properly, permit treatment of a person found
incapable of consenting to treatment." If both these acts were
made available and accessible to those at concern here, they would be able to
participate in their own treatment and care.
Many will agree that
successful treatment depends on the consented participation of
the individual. How can such an act enhance the quality of life
for individuals when there is no requirement for doctors to
inform their patients of the deadly side effects some of these
medications can have? Further, what about the enormous profits to
be made by pharmaceutical companies that will gain guinea pigs
served up by the state?
The importance of a
holistic approach is also at issue here. How can we trust that
this government shares the same notion of holistic approach as
the community does? The very community agencies that service
marginalized individuals have been struggling for years under
increasing reduction in program and staff funding at the same
time there has been an influx of people with mental health issues
in their offices.
The resources to service
this influx are not there at the community level, at the academic
level or at the medical level. Colleges and universities do not
offer full-time diploma programs focused on community mental
health. How can Mr Newman propose a holistic approach when
communities have seen decreases, not increases, to program
resources?
In recent years, the
introduction of Ontario Works and Ontario disability support
programs disentitled many from financial assistance who were in
need. When, reluctantly, this income is granted, the recipients
are policed and criminalized for needing it.
At the same time that
hundreds of people were disappearing from the system and moving
into hostels and on to the streets, the government took away rent
control, landing many people in a cycle of homelessness,
transience or below minimum standards of accommodation. If the
maximum general welfare cheque is $520, then one can only afford
unpleasant accommodations in a boarding room in Toronto.
Given the restrictions to
social assistance, there are very few people who would choose to
remain dependent on the system on a long-term basis. They cannot
go to the community for help, because reductions in social
spending and community-based programs have long waiting lists,
burnt-out staff, inadequate resources and are busy competing for
the few dollars that have been waved before them. If they happen
to lay their head on a street corner or beg for food or money,
they are thrown into jail under the Safe Streets Act. I am not
willing to participate in stripping people of their dignity
because of illness or distress.
This is a legislation that
has controversial implications. It can be presented as a resource
for families and individuals, but when all other options are
non-existent there are limited choices, especially in the midst
of a crisis.
We at Parkdale Community
Legal Services do not see this legislation as an isolated form of
social control. We couple it with changes to rent control, social
assistance, workers' compensation and employment insurance
provisions, as well as the depleting funds of vital social
services in our communities across the province. The increase in
deaths due to cuts to hospital beds and cost-saving measures is
no longer invisible.
To this end, once again we
raise concerns about the violation of an individual's rights
under the current proposed legislation, since we believe the
existing act makes provisions for care decisions, supervision,
apprehension and detention in a psychiatric facility.
It is of importance that
this government recognize their systemic dismantling of resources
and how this has contributed to homelessness, increased poverty,
unemployment, inaccessible education, health care that can kill
you and the violation of an individual's rights in the name of
public safety.
Have you been held
accountable for the state of poverty you have created and have
you stood trial for the lives you have taken in order to shift
these dollars to the private sector? We all know you have not and
you probably will not. That is not why I am here today. I speak
for those frustrated, affected, marginalized and criminalized
because of oppressive legislation that targets the working class,
the poor and some of society's most vulnerable individuals.
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The Chair:
Thank you very much. That leaves us with about two and a half
minutes for questions. This time I'll give the time to the
Liberals, in the rotation.
Mrs
McLeod: I'm very appreciative of what you said during
the course of your presentation about homelessness and the
mentally ill, and very aware that certainly in my community in
northwestern Ontario it's as true as it is in Toronto-maybe just
of a different magnitude in Toronto-that we do not have the
affordable housing, let alone the supportive housing, that's
needed to provide the living conditions that would be much more
optimal for those with mental illness.
I wanted to ask you, in
your experience, do you feel there are people who, because of
their illness, would not be able to access whatever housing
support or even treatment supports that would be there? I know we
don't have all of this, but even if we had all of the community
supports-the housing, the treatment supports-there would be
people, who, because of their illness, couldn't access that,
couldn't even stay in a supportive housing situation?
Ms DeHal:
Part of what we've noticed is that people's inability to afford
accommodation that they choose has become an issue. There are
certain kinds of housing accommodation available for somebody who
is on ODSPA or Ontario Works. Unfortunately, the provisions for
rent do not allow for acceptable housing, and a lot of times
these very same people do have to move out.
Of course, there are the
issues that happen with an individual who can't keep their
housing because of their illness. We feel, however, that the lack
of resources-and this has been noticed by many other front-line
workers whom I have worked alongside with, and we've done this
work on the streets as counsellors and in various sectors
all over the city. A lot
of us have noticed in the last five years an incredible number of
people who are mentally ill and are being kicked out of their
apartments. Many of their rights are being violated by their
landlords, though, because they can and because they are
vulnerable.
Sure, we'll never be able
to provide the right of amount of resources, but if we could at
least provide intervention services to be able to facilitate
healthy living, we might be able to assist people in making some
choices when they are well. Not eating food every day, having to
go out to the food bank once a month, producing ID to get that
food, and often that food at the food bank isn't-people don't
give away fresh food, and we know that. A lot of people in our
community are dependent on food banks and can't find jobs and
don't have ID at times and go into hospitals services, and
because they've been there so many times, they get kicked out by
emergency staff or they don't receive beds.
So it's more than a
revolving-door cycle; it's about a lack of resources and people's
understanding of what mental illness is. We want to understand
what we see, and it is very horrible what we have seen on our
streets over the last couple of years. Yes, there have been some
violent implications of the lack of resources; however, these are
individuals in our community whom we have as much accountability
to as we do to do those who are living in private
accommodation.
The Chair:
Thank you very much for coming before us this afternoon. We
appreciate your taking the time to be part of our
proceedings.
ASSOCIATION OF ONTARIO PHYSICIANS AND DENTISTS IN
PUBLIC SERVICE
The Chair:
That takes us to our next presentation, the Association of
Ontario Physicians and Dentists in Public Service.
Good afternoon, welcome to
the committee. We have 20 minutes for your presentation. You can
divide that as you see fit between presentation or
question-and-answer period. Perhaps at the outset, as you're
probably planning to, you could introduce yourself for the
purpose of Hansard.
Ms Debra
Eklove: I thank the committee on behalf of the
association for giving us the time to present to you. My name is
Debra Eklove. I'm the executive director of the association. With
me are members of the association who are all psychiatrists
working in the psychiatric hospitals. To my far right is Dr Bill
Komer from St Thomas, Dr Michael Chan from Kingston, and Dr
Federico Allodi from Queen Street, which is now the Centre for
Addiction and Mental Health. Dr Allodi will begin our
presentation.
Dr Federico
Allodi: First of all, I would like to make a general
statement and then we'll go into specifics.
The Association of Ontario
Physicians and Dentists in Public Service would like to express
its support for the proposed legislation, because it is in favour
of providing and improving the care of the severely mentally ill
patient, and particularly those patients who are not covered by
the present section 15 of the Mental Health Act; namely, those
people who, because of their mental illness, pose a physical
danger to themselves or to other persons, or because they put at
risk, imminent risk, their bodily health, and yet these people
who do not comply with treatment may endanger and deteriorate in
their mental health. Those are basically the people this bill,
the legislation proposed by this Legislature, is addressing. We
support that.
We support it for two
reasons. First, although a mechanism already exists to provide
service to those patients who do not fit any of the three main
criteria already existing in the Mental Health Act, they still
pose a risk for deterioration in their mental health. The
mechanism that exists is cumbersome, distressing to the patient,
involves the patient within the judiciary and correctional system
and is dilatory in the treatment of the patient and costly to the
community.
I will not go into the
details of how we have to wait, psychiatrists or physicians
sometimes, until the family, for some reason-and sometimes after
a year or two of persuasion on our part-will consent to
criminally charge this mentally ill young man or young woman
because they have taken the car without permission and driven to
California, to end up in disaster and waste. Then we persuade
them to charge these mentally ill persons so they can come into
the judicial system and then the judge can make a decision to
provide for these people a parole system on condition that they
obtain psychiatric treatment under a psychiatrist. It is only
through this manner of circumvolution we manage to provide
psychiatric treatment for these patients.
The new act intends to
bypass this costly and distressing mechanism. The evidence that
it will be so is first in our cumulative experience as
psychiatrists, and on the research evidence provided by the North
Carolina group and other groups, including Dr O'Reilly, from whom
I have received information. It is indeed a mechanism that will
reduce mental hospital admissions from 50% to a five or six time
reduction. The evidence is very considerable that it will be
effective in providing treatment and reducing admissions.
On the specifics of the
proposed legislation, we have looked at the section tending to
modify and, in our belief, improve section 15 of the act. In fact
we see that what is added is a new or fourth criterion, the
criterion of compelling or assisting these mentally ill persons
to receive treatment on an outpatient basis on the grounds that
non-treatment will increase the risk of deterioration of their
mental health. This is a new criterion, and we are satisfied that
the conditions for the application of this criterion are wise and
sensible, both permitting the implementation and respecting the
freedoms and rights of the individual patient.
There's much less, we have
to say-we in our association agree with the Ontario Medical
Association position that this new service should be implemented
with adequate resources. By "adequate resources" we mean they
have to be appropriate to the intended program.
1710
We do not believe that we
have to delay or that we should ask you to delay the
implementation of the legislation until all resources are in
place and to the satisfaction of everybody. We would be satisfied
that a clear mechanism for responsibility and the delivery of
resources and a statement of commitment to deliver the resources
be made. By "resources" we mean mostly staffing, training of the
personnel, supervision by senior and experienced physicians,
material equipment when necessary and the sufficient and
necessary administrative support. This is what in general terms
the association would like to state. Thank you.
The Chair:
Is that the extent of your comments or would you like to open up
to questions now?
Dr Michael
Chan: If I could just make a few brief points?
The Chair:
Please.
Dr Chan:
Just to continue on, I think this is a long-overdue and necessary
legal tool. I think this will be the linkage or the glue that
will make the community resources or services link up with
patients, especially non-compliant or refusing patients who are
so ill that they are unable to seek out the necessary help
themselves and to get it. I think this legislation will provide
the necessary continuity of care of patients as they move through
the system from the hospital into the community and ensure
continuing treatment. The research from North Carolina and also
Iowa has supported that you need a six-month time frame to really
begin to see benefits, and I think that six-month time frame is
an important one.
My own background in
Kingston is in the forensic system. People have called us a
parallel framework for ensuring continuity of care, and I've seen
it work and work well. Once people are hooked up and linked in
with the system, once linkages are there, the services can flow
smoothly and the patients are usually very grateful.
I would agree with previous
speakers who emphasized the need for community resources to make
this framework successful. The literature clearly has also
stressed that.
One other point that the
literature has made, and Mr Clark raised that, was that the
Swanson study, coming out of North Carolina and reported a month
ago in the British Journal of Psychiatry, made the very strong
conclusion that it reduces victimization and it reduces criminal
recidivism in the community. Really, with an ideal and properly
resourced psychiatric system, the forensic system would perhaps
go out of business, an important point to make. The forensic
system reflects inadequacies elsewhere in the system.
The community treatment
order model I think has to be clear and has to be easily
implementable, with clear entry points, clear mechanisms for care
pathways and also a way of enforcing it should it break down with
respect to compliance. I believe that the procedural safeguards
with respect to rights advice and appeal mechanisms to the review
board are adequate. I've also seen those appeal mechanisms
significantly delay much-needed treatment of people already on
the in-patient side.
In general I would be very
supportive and I would say this is long-overdue. Our neighbours
to the south have been ahead of us, and I would strongly urge
this Legislature to proceed with both the changes to the
commitment criteria and to section 33 on the community treatment
orders.
Dr Bill
Komer: I just have a couple of points to add, just to
emphasize again that I think the legislation is long overdue.
Since about 1960, we've seen the numbers of individuals in
psychiatric hospitals significantly decrease, and the provision
of treatment is more in the community than it is in the hospital.
The Mental Health Act, however, has not kept pace with that
change and typically provides a framework for treatment and
management of patients inside of a hospital. It does not have any
framework for management outside of the hospital. I think in
default, because the legislation hasn't evolved as the treatment
has evolved, we've seen the Criminal Code acting as that Mental
Health Act last resort, so we've seen individuals being
criminalized.
Just as a general point, I
think you should try to have the legislation as simple as
possible so that the practising front-line physicians and
clinicians can understand it and use it practically.
I want to emphasize again
the issue of resources. One wants to have a framework in place
but one also wants to make sure the resources are there so that
these orders are actually made.
The Chair:
Thank you very much. That leaves us with about seven minutes for
questions. This time the rotation will start with Ms Lankin.
Ms Lankin:
Thank you very much. I appreciate your presence here today.
If we started from a
premise that we all agree with the intent of getting help to that
very small population that a lot of people have talked about that
currently is falling through cracks, I think we would also agree
that we want to make sure that the actual words in the law we're
passing do that. I want to put to you a concern that I have with
the words, not the intent. I'm not going to differ with anything
you've said. I just want to see if you have any similar concerns
with how we get to the end goal.
The law as it's written, as
I read it, allows a doctor in the community to determine that a
patient meets form 1 criteria, simply that that person meets the
criteria that could compel them to be taken for an assessment.
They don't have to fill out a form 1, they don't have to send the
person for an assessment, a psychiatrist doesn't have to be
involved, no assessment has to be done, and the person would be
put on the community treatment order if they meet those criteria
and some other criteria.
Some of those other
criteria are things like, they have been in a psychiatric
facility before, not even detained in, as in the Saskatchewan
legislation, involuntarily detained; they've gone voluntarily. If
they've been in before, that helps meet some of the criteria.
Surely-let me not prejudice this. In my view, I don't think that
describes the population you're talking about.
I'm interested in ensuring that we have someone get
a psychiatric assessment, that a psychiatrist is involved in
building a plan, that they are involved in the assessment that
says this person first of all warrants committal, that this is a
less restrictive way and this person can be successful in the
community with these conditions. I feel that the current steps
that are set out are too broad in some ways and too narrow in
other ways. Have you looked at the detail-you say you support the
legislation-the detail words? Are you comfortable with that
process I've described in the legislation, or is it the intent
that you're saying that you support?
Dr Allodi:
It is basically the intent, but also, without being a lawyer, I'm
familiar with this form of procedure and am satisfied, as far as
I can see, that it's adequate.
Your specific concern with
the criterion or the necessity of being a mental hospital
admission not necessarily involuntarily I think is adequate in
the sense that mental hospital admissions are very rare these
days for people who have not a very severe mental illness. Then
they may shorten the necessity to select carefully the patient
for admission to a mental hospital. I would say that almost all
of them are severely mentally ill and need admission because of
severe crisis and severe disruption of their mental function in
the community life. So the fact that it is simply an admission,
not necessarily a previous involuntary admission, nowadays
doesn't make a great deal of difference. The thing is that it's
strong criterion still.
The fact that it is an MD,
not a specialized psychiatrist, who would be able to certify a
patient is balanced by the fact that it's are only three days,
which go very quickly, and immediately, in fact the same day, a
psychiatrist will be consulted upon the admission of this
person.
The Chair:
Ten seconds. We've already gone well into the time of the other
parties.
1720
Ms Lankin:
In fact, what I'm telling you is that the legislation does not
compel the person to go for three days to see a psychiatrist.
It's simply saying, if I think as a doctor that you meet the
criteria that I could send you for an assessment, I can put you
on a CTO without the assessment or a psychiatrist being
involved.
Dr Allodi:
But if the patient refuses the alternative information-
The Chair:
Thank you, Ms Lankin. We have time for very brief questions from
each of the other two parties. Mr Clark.
Mr Clark:
A brief question. Section 33 of the act proposed-this question
has come up before and I'm wondering if we can get a comment from
you-states that "a physician may issue or renew a community
treatment order under this section," and then it goes into a
number of clauses. The question that has come up before is, do
physicians, general practitioners, have the capabilities and
understanding of mental illness? Do they have that ability to
issue that community treatment order? The act simply states that
a physician may do it. So should it be a qualified physician,
that there should be some, I don't know, certification process
that a physician would have to take in order to be able to do it,
or can a general practitioner do it? A comment from you
folks?
Dr Komer:
I think ideally you want to have a psychiatrist, but there are
going to be situations throughout the province where you're not
going to have a psychiatrist, and one would not want to have this
treatment order not be available to a person who needs it because
there's not a psychiatrist. But I would agree; I think by and
large a psychiatrist is the most trained to do that. There are
some family physicians who have much more of an interest in
mental health issues and there are some that do not. That's why I
think one should try to keep it as simple as possible for people
to understand the forms and to complete them.
I wanted to pick up on a
question that's related somewhat, because it is about section 33.
I think one doesn't want to get too complex. I think
33.1(2)(a)(i) talks about the patient previously, over the last
three years, having been in hospital. I think that gets a little
too specific and arbitrary. I think it would be important to look
at mainly the criteria that are in (b) and (c) and below that
deal with the person's need to be on this order. My reading of it
is that a physician needs to at least do an assessment and come
to an opinion that this person needs to be on this order because
of certain needs of that person. I think there are the safeguards
that you are concerned about. At least it says in there that
there needs to be the opinion of the physician that the person
has a mental disorder and needs treatment.
The Chair:
If I could ask you to keep your answer fairly brief, please.
Dr Allodi:
The current application of the Mental Health Act, if anything,
really shows how shy physicians and psychiatrists are in applying
that section. Last month a family physician who knew this patient
very well for many years, and also a group of physicians who do
emergency visits, both refused to visit the patient in their home
and issue a certificate of involuntary admission. If anything,
this new procedure is going to be used very rarely. If the
physician is unwilling because of lack of familiarity, he or she
will seek a consultation or refer the case to a psychiatrist,
which is the usual mechanism. On the other hand, we should not
underestimate the new training of medical school students, in
which I have participated over the past 20 years. In resources,
we should make sure this is adequately covered in the finishing
year of the medical students.
Mr Patten:
Thank you for coming today. I'll have to be quick because we're
running out of time, but I want to establish one thing: Those who
are against this legislation continue to say that there are
provisions already, that section 27 provides the option. There
was a quote this afternoon referring to Dr Goldbloom. I have a
paper by Dr Goldbloom, who is the physician in chief at the
Centre for Addiction and Mental Health, where he says, in
applying section 27 in his particular institution, that it was
reviewed by a board hearing at the centre and was not upheld as being used as a
community-based treatment of a certified patient, which is one of
the motivations, in fact, to attempt to deal with this. But that
mythology continues to perpetuate in the community, especially
for those working on a community basis. Would you comment on
that, please.
Dr Allodi:
I must add, and question the date of that document of Dr
Goldbloom's, because Dr Goldbloom changed his mind after that
paper and was in favour after he conducted with a colleague of
his, Dr Zipursky-
Mr Patten:
This is that paper. I'm saying he's-
Dr Allodi:
You say he supports it.
Mr Patten:
I'm saying he's supporting the CTO or CTA of whatever you want to
call it on the basis of the leave not being permissible. Section
27.
DrAllodi: Section 27 leave of absence is rarely
used and not fully utilized. Correct.
Mr Patten:
That's right. OK.
Dr Allodi:
The only mechanism I am aware of that has a similar continuity of
care is the forensic system, which is based on the federal
Criminal Code. To enter that system you have to be criminalized.
You have to go through the criminal justice system, be
incarcerated sometimes and eventually get across to the
psychiatric end of the system. It's a very costly way to go about
it. I think if there is a direct link into psychiatric services,
and not necessarily going through the criminal justice system,
that's the way to go. I think that's what this is about.
The Chair:
Thank you very much, gentlemen and madam, doctors all, for coming
before us. We very much appreciate the expertise you brought to
these hearings.
YVONNE JENSEN
The Chair:
Our next presentation, Ms Yvonne Jensen. Please come forward.
Good afternoon and welcome to the committee. We have 10 minutes
for your presentation.
Ms Yvonne
Jensen: I'd like to begin by saying that I have worked
at what used to be called the Queen Street Mental Health Centre
for a total of 16 years. I have worked in the capacity of
psychiatric nurse, clinical instructor in psychiatry for nurses
and as the chaplain. As you see, I am also a survivor. When I
first decided that I wanted to address this issue, it was for
that reason, because if CTOs had been in effect in 1971, I would
not be here today, nor would I have had the chance to continue
with my education. I am grateful for this opportunity.
About a year ago, I took a
leave of absence from that institution, Queen Street, where I was
working as the chaplain, because I had a great deal of difficulty
with feeling that I was part of legitimating that institution. I
was visiting every week a woman on a ward who was receiving
treatment against her wishes and who died on the table receiving
ECT. She was revived and she continued to receive ECT against her
wishes. I visited her every week and said, "I will see you next
week." The woman sat in terror from one week to the next, saying,
"If they don't kill me this next time, you will see me." To me,
it is unthinkable that anyone should be sitting that way week
after week, month after month, fearing for their life.
James Hillman, a very
famous psychologist, has said we have had psychotherapy and we
have had psychiatry "for a hundred years and the world is getting
worse." Psychiatry has become the gatekeeper for society.
Psychiatry decides who is in and out and has the status and
prestige of a science. But the way diagnostic categories are
arrived at is not scientific, and mistakes are made all the time.
This is well documented-there is a mistake in the reference-by
Paula Caplan in her book They Say You're Crazy: How the World's
Most Powerful Psychiatrists Decide Who Is Normal.
1730
However, once a person has
been diagnosed and is prescribed treatment, it's very rarely
without drugs, because people who refuse drugs when seeking help
and/or admission are often asked, "If you don't want medication,
why are you here?" I have heard this; I worked for five years in
the admitting department of Queen Street Mental Health Centre:
"We are the experts. If you won't follow our advice, why are you
here?"
The patient is administered
drugs which are often dangerous and once into the treatment
process, there is no way to correct the situation. People are
trapped in the treatment process with no possibility of
reassessment. I'm not saying a person isn't regularly reassessed;
they are. But once they receive these debilitating drugs, they
are no longer the person they were.
In 1971, I had one of these
injections, my first and last. I was discharged, and after two
weeks when the medication wore off the hospital phoned me up and
said, "Unless you come back and receive another injection, you
will become very ill." But that was the very worst two weeks of
my life. I could not imagine how I could not kill myself because
of the way that drug felt.
I had to hide from the
system for years. It was lonely, and it was frightening. I am
speaking here today because I am afraid that with CTOs in effect,
many people are not going to seek treatment. They are going to be
afraid to seek treatment to discuss what kinds of thoughts and
feelings they are having. We're just going to create a whole
underground of people who cannot access the resources that the
taxpayers think they are paying for in order to protect the
vulnerable. Also, there are dangerous physical side effects of
psychotropic drugs, which I'm sure you are well acquainted with
at this time.
In Touched With Fire, a
book that talks about people with mood disorders, there are
numerous accounts of our most famous artists, musicians, writers
and poets, all diagnosed with mental illness, all of whom could
have been medicated, in which case we would not now be enjoying
the fruits of their labours. Schubert, Van Gogh, Emerson, they're
all in there. You name the artist and you can almost be sure they
are in there, and you can read that for yourselves.
Some patients commit suicide because their
lifestyle becomes such that life isn't worth living. One patient
managed to get better, to the point where he was ready to start
his own business, creating and selling fine jewellery. He had a
relapse related to his environment and was restarted on
neuroleptics. Neuroleptics inhibit right-brain function. They
decrease creativity, they decrease motivation and they inhibit
the ability to imagine. This man ended his life. These are just a
very few cases. There are many, many people who are victimized
like this.
The violence myth: The
media would have us believe-every time there is a mentally ill
person who commits a violent act, it says in the newspaper, "This
person was mentally ill." But in all other cases of violence
reported in the newspaper, when the person is not diagnosed with
a mental illness, the newspaper does not say, "This person was
not mentally ill." I would suggest that we start asking, "What
kind of a society are we that generates so many people who simply
cannot adjust to our society?"
The fact that violence
among the mentally ill is a myth, or that there is a greater
danger there, has led me to question the motivation behind this
proposed legislation. I think it's political rather than rooted
in deep compassion and a real desire to help people who are
mentally ill.
Mentally ill people know
what they need and are asking for what meets their needs, but
we're not asking them, "What do you need?" because once a person
has been diagnosed with a mental illness, they are already a
write-off. Their judgment is off, and they are not taken
seriously. People need adequate housing, food, meaningful work,
the right to education and mutual respect, just like all the rest
of us.
In Recovery from
Schizophrenia-and this book is used as a textbook at the
University of Toronto, the School of Social Work-Dr Richard
Warner, medical director of the Mental Health Center in Colorado
and associate professor at the university, argues: "We have been
too pessimistic about the cause of untreated schizophrenia, and
overconfident about the benefits of modern treatment. Despite the
increased use of new anti-psychotic drugs and massive annual
investment in the treatment of schizophrenia, the outcome from
the illness in modern industrial society is no better than in the
Third World. Much of what is called community treatment is, in
fact, the antithesis of treatment, resulting in people with
psychosis living a life in which even the basic needs, such as
food and shelter, are not met"-and such as security. Any one of
us has only to visit some of the boarding homes over in Parkdale
that I have had the privilege of visiting people in while I
worked as a chaplain.
Since the media have
targeted mainly the schizophrenic person, the following
recommendations will address this population. We have far to go
before schizophrenic persons are welcome in our society and
before they can view themselves as equal, useful members of
society. Until such a time, schizophrenia is likely to be a
malignant condition. We have the knowledge to render this
condition benign.
The recommendations are on
the front page. We need to address concerns around psychiatry as
a scientific profession. They make mistakes in diagnosis, with
ensuing dangerous drug treatment. We need to look at the effects
of medications. We need to treat the acute phase of the illness
in small, domestic, non-coercive settings which reflect the
humane principles of moral treatment. We need to ensure adequate
psychological and clinical support in the community, including a
full range of independent and supervised, non-institutional
accommodation, and give recognition and support for the care
offered by the schizophrenic person's family and provide family
education and counseling.
We need to provide jobs and
training for the mentally disabled, work which is neither too
demeaning nor too stressful. We need to establish economic
incentives to work and a more gradual reduction of disability
benefits for disabled workers and wage subsidies for the severely
handicapped. We need to encourage economic and social advancement
through consumer-cooperative business, housing and services. We
need to fight for the rights of people with schizophrenia and
their families to participate as fully integrated members of our
society, taking the issue before the public through the media,
and then to use the anti-psychotic drugs as a supplement to all
these measures, not-as often happens these days-as a substitute
for all these measures.
The problem is so much
bigger than focusing on the people we call the mentally ill,
because if we were going to do all these good things for people
with schizophrenia, we would also have to do them for all those
people we call the poor people. We really all have the same
needs, and if we did all those things for the poor people, then
we wouldn't have an increase in people being labelled as mentally
ill. We wouldn't have such a need for these CTOs even to be under
discussion.
I have worked, as I said
before, at the hospital, and I think the word "imminent" should
definitely be left in the Mental Health Act. I think that if a
person is imminently at risk we should intervene, but if they are
not imminently at risk, we should ask them what they need.
1740
Parts of this plan would be
expensive, but overall it may cost little more than our current
vast expenditure on treatment and support of schizophrenic people
and on the associated disruption, crime and imprisonment which
result from inadequate care. Our society is inherently unequal,
however, and to provide such a quality of life for the person
with schizophrenia is scarcely feasible since such a large
proportion of the population, including an army of unemployed,
would be left in worse circumstances. To render schizophrenia
benign, we may in essence have to restructure our provisions for
all of the poor.
In ending, the
recommendation I would make for all poor people, for all people
in distress-it has worked for me; this is very personal, and this
is why I am a chaplain-is prayer and a faith in a transcendent,
merciful, benevolent being. A hope for the coming of that kind of
life moved by those
sentiments on the earth is what helps most of all.
The
Vice-Chair: Thank you very much for coming here today.
You have taken the time that is available, and we certainly
appreciate the insight that you've been able to bring to our
deliberations.
CITIZENS COMMISSION ON HUMAN RIGHTS
The
Vice-Chair: I'd like to call on the Citizens Commission
on Human Rights, Robert Dobson-Smith and George Mentis. Thank you
very much for coming here. I would just ask, for purposes of
Hansard, that you would introduce yourselves.
Mr Robert
Dobson-Smith: My name is Bob Dobson-Smith. I'm the
president of the Citizens Commission on Human Rights. This is Mr
George Mentis, who is the executive director of the Citizens
Commission on Human Rights. I'll begin.
The Ontario government has
introduced Bill 68, known as Brian's Law, an act to amend the
mental health and informed consent laws of this province.
One official speaking for
the government at a recent public consultation on this hill in
Toronto stated that this bill was intended to affect 60 to 70
people at most in Ontario, yet its ramifications are
far-reaching. Bill 68 will affect everyone in this province, in
all sectors of society. Moreover, Bill 68, which includes the
introduction of community treatment orders, will lead to
widespread abuse of civil liberties and fraud.
At the root of community
treatment orders are involuntary commitment laws. In addition to
the violations of civil rights that such laws facilitate, there
is ample evidence which shows that involuntary outpatient
commitment does not lower hospitalization rates, nor does it
result in increased public safety. A study done in New York City
on December 4, 1998, by Policy Research Associates for Bellevue
Hospital found that outpatient commitment had no statistically
significant effect on rehospitalization rates or days spent in
hospital. The study 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 Bazelon Center, a
clearing house on mental health issues based in Washington, DC,
describes the New York City study as one of the most
comprehensive and best designed studies of outpatient commitment
released to date. The study sought to answer whether an
outpatient commitment order contributed to any additional
beneficial results when compared with patients who received
intensive services without such an order. The findings, which the
Bazelon Center describes as conclusive, found no additional
improvement in patient compliance with treatment, no additional
increase in continuation of treatment, no differences in rates of
hospitalization, no differences in lengths of hospital stay and
no differences in arrests or violent acts committed.
In the only released
controlled study of the subject, it was found that individuals
given the option of enhanced community services did just as well
as those under commitment orders who had access to the same
services.
Closer to home, when we
examine the data from Ontario, we see a steady increase in people
involuntarily committed to provincial psychiatric hospitals from
1990 to 1995. In 1990, some 13,365 people were involuntarily
committed to psychiatric hospitals. By 1995, that number
ballooned to 16,817. This translates into 48 people a day being
locked up against their will in a psychiatric hospital. It is
estimated that currently there are more than 70 involuntary
commitments across Ontario every day. These statistics show that
under the current legislation an alarming number of citizens are
being committed, which contradicts the argument that stronger
legislation is needed.
A basic assumption of Bill
68 is the fallacy that psychiatric drugs emptied the institutions
and hospitals. Lacking any other evidence, this assumption-and it
is nothing more than that-is relied upon to demonstrate the
efficacy of these psychotropic substances. This proposition is a
myth. It is true that psychiatric patients were sent out of
psychiatric hospitals; what is not true is that this was caused
by the efficacy of the drugs. What actually happened is that the
media, human rights groups and others exposed widespread abuses
in institutions across the country, and the psychiatric community
found itself vulnerable. After all, before that time, patients
were warehoused, heavily medicated, electroshocked, experimented
on and worse, all without the slightest hint of public
scrutiny.
Instead of cleaning up
their act and providing medical treatment, psychiatrists moved
patients into thousands of group homes across the province, like
the homes for special care. Whether for-profit or non-profit,
these facilities earned a lot of people a lot of money. There
were approximately 21,000 psychiatric patients in Ontario prior
to the homes for special care program being implemented.
Afterwards, around 14,000 were transferred to approximately 2,500
of these private homes. Psychiatrists implied that these patients
benefited from treatment, yet what occurred is that patients were
taken out of regulated facilities and placed in ones where they
were virtually out of sight.
These homes were, and are,
little more than human warehouses for patients who are rarely
seen by a health care practitioner and who are constantly kept in
a heavily drugged state so that they will not be a management
problem. This reduces costs and increases profits. After all, the
highest expenditure in any health facility is labour. The Queen
Street Mental Health Centre promoted a few years ago that they
had a re-admission rate of 75%. If patients cannot be cured in a
major psychiatric institution with tens of millions of tax
dollars in funding every year, how will they be cured in a
private home with nothing more than mind-altering drugs?
"We do not know the cause
of even one major psychiatric disorder nor can we cure in a
reliable way those people who suffer psychiatric illness," stated
Dr Paul Garfinkel of the Clarke Institute in 1996.
Dr Fred A. Baughman, a
board-certified neurologist, said so-called biochemical disorders
of the brain are a "fraud." Dr Baughman has discovered real
neurological diseases and had his findings published in
peer-reviewed medical and scientific journals.
"The fact that
psychiatrists do not perform physical or neurological
examinations by which diseases of the brain and nervous system
are diagnosed make their claims of diagnosing and treating
`biologically-based' brain diseases unbelievable, a fraud. There
is no physical or chemical abnormality to be found during life or
at autopsy in `depression,' `bipolar disorder,' `attention
deficit hyperactivity disorder' ... or in any other `mental
illness.'"
The Charter of Rights and
Freedoms protects from discrimination on the basis of age,
colour, sex, religion and mental or physical disability. Clearly,
Bill 68 is a revocation of this charter and will undoubtedly
generate numerous legal battles, as it has in the US. The United
States Supreme Court has ruled that involuntary commitment to a
psychiatric hospital is "a massive curtailment of liberty." The
court also emphasized that "involuntary commitment to a mental
hospital, like involuntary confinement of an individual for any
reason, is a deprivation of liberty which the state cannot
accomplish without due process of law." Moreover, the court has
clearly stated that there is "no constitutional basis for
confining such persons involuntarily if they are dangerous to no
one and can live safely in freedom." Interestingly, the US
decision is extremely similar to the Canadian Charter of Rights
and Freedoms, which we're all familiar with.
1750
The proposed Ontario
legislation wants to eliminate the "imminent danger" criteria
from the Mental Health Act, based on the assumption that
psychiatrists can somehow predict future dangerousness. This
couldn't be further from the truth.
Whether the assessment of
imminent danger is done by a police officer or a mental health
worker, even the psychiatric profession admits that predicting
dangerousness involves nothing more than a craps shoot. A brief
filed by the American Psychiatric Association before the US
Supreme Court stated that "such predictions are fundamentally of
very low reliability." If, as the APA states, predictions of
dangerousness are not reliable, this contradicts the whole basis
for community treatment orders legislation, which is based on the
premise that psychiatric patients must be forced to take
medication or they will become violent.
According to a prominent US
professor of psychology, Dr Margaret Hagen, who wrote the book
Whores of the Court, the predictions of psychologists in court
are wrong two thirds of the time, a statistic significantly worse
than that of the general population.
In a case documented in
1977 by CCHR, a man in his late 40s was picked up by three
members of an assertive community treatment team from his home in
Scarborough and taken to the psychiatric ward of a local general
hospital. Without explaining anything to him-this is a mentally
competent man-the man was forcibly injected with a mind-altering
drug by a psychiatrist. Upon leaving the room he told the
patient, "There's not a court in the world that can touch
me."
It is important to note
that these are not just isolated incidents being complained about
by victims and advocates. Illegalities have been known to the
authorities for years as being widespread.
A case in point: In 1997,
the Provincial Auditor of Ontario exposed abuses at the Whitby
Mental Health Centre. His report, submitted to the Ontario
Legislature, stated:
"From a sample of patients
considered capable of consenting to treatment, we found that: the
assessment of mental capacity to consent to treatment was not
documented in 76% of the clinical records we reviewed; informed
consent was not documented in 88% of the cases we reviewed; 60%
of the capable patients we interviewed stated that no one at the
centre had explained the side effects of their medications before
they were asked to take the medications, another 13% did not know
whether they had received explanations, and 39% of the capable
patients we interviewed did not know the medication they were
taking and 41% did not know what would happen if they did not
take their medication. Many of these patients stated that there
would be no change if they stopped taking their medication." To
date no one has been charged, although this violated the informed
consent regulations.
According to the law, a
patient must be informed about the nature of the treatment,
expected benefits, risks, side effects, alternative courses of
action and the consequences of not having the treatment. Yet this
is violated as a matter of routine, in both the public and
private mental health sectors and other areas, such as our
schools.
The
Vice-Chair: Excuse me. I see the light flashing. We will
take a recess. The committee will continue after our vote.
The committee recessed
from 1754 to 1822.
The
Vice-Chair: Ladies and gentlemen, sorry for the
interruption. You have five minutes remaining.
Mr
Dobson-Smith: I have eight minutes, I think.
The
Vice-Chair: I have you beginning at 5:40.
Mr
Dobson-Smith: No, we started at 5:45, actually. The
other fellow ran on. We have 20 minutes, I understand.
The
Vice-Chair: Yes, you do. Continue.
Mr
Dobson-Smith: Thank you.
I was explaining when we
left off, just to refresh your memory, about the report of the
Provincial Auditor of Ontario and giving you the various
statistics. I basically said that there had been no informed
consent in many circumstances at the Whitby Psychiatric Hospital,
with 76% of the cases and 88% of the cases etc, and that these
people did not understand their medications, whether they should take them or not
and what would happen if they didn't take them. To date, because
there was no informed consent in this vast number of individuals,
no charges have ever been laid; no one has ever been brought to
say why this occurred.
According to the law, a
patient must be informed about the nature of the treatment,
expected benefits, risks, side effects, alternative courses of
action and the consequences of not having the treatment. Yet this
is violated as a matter of routine, in both the public and
private mental health sectors and other areas, such as our
schools.
Earlier this year, at a
small school near Brantford, a couple was shocked to discover
that their son had been sent for a psychological assessment
without their knowledge. They discovered that the school had a
policy to prevent disclosure to parents. The policy, known as
"referral process," stated, "Do not get a signed consent form
from parents."
In conclusion, every aspect
of the community treatment order initiative will lead to abuse of
patients and taxpayers. A real solution would include changing
mental health laws to better protect patients. As an example,
Ontario could implement videotaped consent procedures. This
low-cost measure would ensure that patients are given proper
informed consent in accordance with the law.
There should also be a
written information sheet for every single psychiatric treatment
and medication that will provide a standard minimum level of
information to a patient in lay, understandable terms. This would
protect every patient and it would also protect every
practitioner.
Another valuable amendment
would be mandatory medical testing to pre-screen for physical
ailments, as it is known that many physical illnesses manifest
symptoms that appear to be of the mind, yet they are of the body.
This would help ensure that whatever condition the patient is
suffering from would actually be addressed.
After all, if a
psychiatrist does not diagnose without thorough testing, he or
she cannot really be sure what is wrong, as without a full,
searching, medical examination, a medical practitioner cannot
establish the nature of the illness and thus provide a truly
informed consent.
We firmly believe that a
truly informed consent means the patient and/or his substitute
decision-maker, his family member, fully understanding any
medical condition that could be manifesting these things also,
which is why a medical examination is necessary. Often, the
patient is just looked at, and he's considered to have a bipolar
disorder or whatever with just cursory observation.
In closing, I would like to
say that if informed consent is not being applied in this
province after more than two decades of it being written into law
in the Mental Health Act, how can we ever expect psychiatrists
not to abuse the vast powers granted to them with community
treatment orders? Community treatment orders will do nothing more
than legitimize the illegalities and abuses occurring in
psychiatric facilities in Ontario every single day. Every single
week we get calls.
The
Vice-Chair: Thank you very much. We have about two
minutes. Mr Clark, do you want to begin?
Mr Clark:
I'll defer to Mr Patten.
Mr Patten:
So I gather you support the legislation. No, I'm just kidding,
obviously.
Mr George
Mentis: We do support amendments to it.
Mr Patten:
You do, OK. By the way, the Citizen's Commission; are you
connected with the Church of Scientology?
Mr Mentis:
Yes, we were established by the church in 1969.
Mr
Dobson-Smith: We're currently separately
incorporated.
Mr Patten:
You're separately incorporated. Because this is twice; I had a
group called this as well, but they didn't disclose that until
they arrived in the office. Can I ask you-
Mr
Dobson-Smith: Are you suggesting there's something
improper about-
Mr Patten:
No, not at all. I'm just saying, why is it that there isn't an
upfrontness about saying that you are connected-
Mr
Dobson-Smith: We're not connected.
Mr Patten:
So you're no longer connected with them.
Mr Mentis:
It's not that, sir. That's like someone coming up here and you
asking them questions such as, what is their religion? I myself
am a Scientologist; however, we are an independent body.
Mr Patten:
No, I mean there are church councils who come; there are
different groups. Anyway, I don't want to dwell on that.
You cited a lot of pieces
of legislation, some I'm familiar with. I'd review that Bellevue
piece of legislation as well, in saying that if indeed there was
an analysis done by two completely different populations that
showed that there was no distinguishable difference between the
record of voluntary treatment and people who indeed were far more
severely ill, I would arrive at a positive conclusion.
However, in your own
particular minds, are there circumstances under which people who
may be offered services, may have access to services, but in fact
do not have the mental capacity at a particular time? Are there
circumstances under which you would support involuntary
treatment?
Mr Mentis:
Yes, yes. There are clear circumstances where a person does need
to be restrained. If a person is a danger to themselves or other
people, obviously for the good of the person, his family and
everybody around him, that person would need to be restrained.
However, having said that, it's also very important to note that
a very careful review of the past 400 cases of public violence-in
each case, including the Taber shooting, the Columbine school
shooting etc, psychiatric treatment preceded the crime. That was
the only common denominator in every single instance. So
although, yes, I will say that someone has to be restrained,
other than the period of danger, once the danger subsides we
should go into a regimen of standard medical treatment.
Otherwise you're feeding the same thing.
Some of these drugs, as has
been exposed in the media-for example, some people brought up
this North Carolina study. If one examines what has gone on in
North Carolina just in the past 12 months, as has been exposed on
60 Minutes, you'll find that a lot of the patients in these
psychiatric facilities are horrendously abused.
A case in point is Charter
Medical Corp, which was the largest provider of mental health
services in the entire country, where you had in one facility
alone 24 deaths which were as a result of restraint. In case
after case in the medical records it would say "death due to
asphyxiation." However, what would actually happen in a lot of
the cases is that the person, the kid, the adolescent, whatever,
would be on a psychiatric drug, they would be normally overdosed,
and then when a physical restraint would occur, what normally
would not kill that person, in this particular case would. As a
result, as I speak, the US government is now reviewing restraints
in facilities across the country.
The
Vice-Chair: Thank you both for coming here today. We
appreciate your comments.
1830
DON BARBER
The
Vice-Chair: Our last presenter is Don Barber. Welcome,
Mr Barber. You have 10 minutes in which to make your
presentation.
Mr Don
Barber: In expressing my concerns about Bill 68, I would
like to address the issue from two points of view: the general
negative trends in our society and my personal life. I am among
the many who believe this bill will lay the foundation for
Canadians to be wrongfully arrested more often.
In 1994, I started for the
first time to become involved in government as a community
representative and to try and save a local, old-growth urban
forest, the Cawthra Bush in Mississauga. My main focus and
efforts were more on human and democratic rights than
environmental and to get the facts to the public and then to try
to get the right for the community to make an informed decision
by way of vote. Over the years, I came to a new understanding
about how Canadian law was enforced regarding human and
democratic rights. Unlike many apathetic Canadians, I came to see
that our country was not so great that politicians couldn't ruin
it, if we let them.
Some of the first-hand
examples provided are while dealing with Hazel McCallion, a
politician who doesn't care how she wins, just as long as she
wins, and should be used by this committee while reviewing the
possible negative side effects of Bill 68. Many abuses of this
bill will be by the government, but members of the public,
bullies generally speaking, will also find uses for this bill
which are not the intentions of lawmakers.
First of all, what has been
lost by governments of the day? That is, what is a human being
and what does the human animal need for a quality life? This is
the most basic question that is not asked. There's no single body
of work the government can point to and say, "That is our best
understanding of our kind and its needs." Why should it exist?
Because to make quality decisions in government you need to know
who you are making them for and what people really need.
The mentally challenged
belong in our society, just as much as the elderly do. They are a
part of the world we are created to live in, and it is
dehumanizing for all of us to try and purge the streets of their
existence. Governments have often made hard decisions regarding
what people want and what is best. The wisdom of the ages has
guided many. It is better to err on the side of caution and often
the truth is the exact opposite of the popular perception.
In the case of human
beings, the best overall statement to make is our lives should be
as close to the balance between chaos and order as reasonably
possible. Too much of either can destroy not only the individual
life but whole societies as well. To say to a government that too
much order can destroy the quality of a person's life, their
culture, society, if not the very country they live in, is a hard
sell.
Another important element
in good government decisions should be made understanding there
are acceptable losses in our society, or how many people are we
willing to lose before action is taken? To put that another way,
if you try and save everyone, you have to try to control
everyone. Over-control leads to its own losses. Human and
democratic rights come at the cost of human lives. We should try
not to be motivated by do-gooders who overreact to events, start
up a media-driven bandwagon to influence our emotions and ignore
the intellect. The role of good government is to be far-sighted
and to understand that the loss of a few should not be used as a
power grab in our lives while grandstanding for votes.
Once laws are passed, they
have a habit of growing, linking with other laws and legal
precedents to become even more intrusive. With the whole body of
human history to review, let us look at a good example of how
some of these principles have been applied in other governments,
some that they thought were too big to fall as a result of them,
such as the USSR, a country that thought ruling from the centre
would be the best way to do things, with a grand list of laws
enforced by unaccountable bureaucrats. The USSR did label those
who disagreed as mentally ill in many cases, and there is reason
to believe the same would happen in Canada. The use of this bill
begins the same process. Under the guise of doing good, a
political weapon is created against the most important group to a
dynamic society, and those who would oppose are threatened.
Good government depends on
accountability. The current government has downsized that factor
and removed it in the case of the police complaints process. The
possibility of taking a police officer to court has been removed
and a tribunal of
persons the government selects, some of whom have made large
donations to the current government, replaces trained legal
professionals. In general, bureaucrats are very unaccountable and
the police are little more than gun-carrying bureaucrats.
Members of the public have
often been bullied by the government because they are poor or
lack the knowledge to stand up for their rights. Added to this,
the poor can't fight back, a fact known by the poor and recently
reported by the National Council of Welfare. Our legal system
discriminates against the poor from start to finish. This is the
most important point, as many would boast that there are laws to
protect Canadians' rights. The truth is they have to be bought.
You have to buy justice in Canada. If you can't afford lawyers to
fight back, our lives are just flushed.
The bill is about making
the public more accountable to doctors and police, but nowhere
does it try to make doctors and police more accountable to the
public. There's no effort for a balance here. With the creation
of newly privatized or privately run facilities like prisons, it
would appear the government wants to fill them at our
expense.
One of the key elements for
accountability in regard to police, doctors and bureaucrats is
that they make interpretations regarding events and then force
them on members of the public. The only way it can be challenged
is in court. If there is no money, it can't be challenged. The
bureaucratic mindset is one that builds like records and reports
on top of existing ones. Rarely does a bureaucrat stand out from
the crowd by saying records in the past are wrong and should not
apply. Often wrong interpretations are made because it is known
the person can't afford court or any legal method to fight back.
Nowhere does this government address this fundamental failure of
our legal system. Instead, it passes new laws that only the
well-off can afford to avoid-the old idea of a class system.
To use events in my life, I
hope to show how dangerous it is to be poor and how unaccountable
and unjust government can be towards a stand-up kind of person,
as well as the politically active. When I tried to used the
freedom of information act to get city of Mississauga records for
the public's use, the mayor personally stepped in and shut down
the act. I was poor and could do nothing. In time, they accused
me of being a frivolous and vexatious abuser of the freedom of
information act. In the inquiry that followed, the Canadian
Environmental Law Association bent their own rules to make a
submission, as it recognized the importance of the issue I was
appealing, but a bureaucrat knowingly made a wrong decision,
knowing I couldn't appeal. This injustice will stand until I can
find thousands of dollars to fight it.
The next point is one of
the most important ones that I've been trying to make. Next, city
politicians sent the police to my door because they didn't like
my demeanour-nothing else. Not only was it direct harassment
against me, but the same politicians who enlisted the police made
a point of telling the public the police had been sent to my door
in an effort to publicly discredit me. Again, I am poor with no
chance to fight back. This is the way of the future: politicians
abusing the law and their power, knowing the public can't fight
back.
As I have made a point of
not backing down, even when the police are present, when it comes
to standing up for my rights-and it is based on what I have read
in their notes about the event and whatnot and what they had said
at the time-it is very clear to me that if this bill had been in
place they would have arrested me for a bad attitude towards
politicians.
Another example is the
matter of a sadistic bully who uses the law as a weapon against
me. This person-
The
Vice-Chair: Mr Barber, I just want to inform you that
you have about 30 seconds left in your 10 minutes.
Mr Barber:
OK. Thirty seconds? Can't get two minutes or anything?
The
Vice-Chair: No, sorry. If you'd just give us a few final
comments.
Mr Barber:
Basically, the idea is that bullies use the law as a weapon
against you. The police are then faced with individuals who are
consummate liars and manipulators and you actually have to prove
your innocence.
I'll have to submit the
rest in writing. Generally speaking, this law opens up the
opportunity for a great many more people who are not the target
of the bill to become vulnerable just simply because there are
more laws for people to be arrested. I'm very concerned that if
politicians can send the police to your door because they don't
like your attitude, this bill will be simply extended to
arresting people whose attitude they don't like.
The
Vice-Chair: Thank you for coming here to our committee.
We stand adjourned.
