31e législature, 2e session

L035 - Tue 11 Apr 1978 / Mar 11 avr 1978

The House resumed at 8:03 p.m.



Hon. Mr. Timbrell moved second reading of Bill 19, An Act to amend the Mental Health Act.

Hon. Mr. Timbrell: Mr. Speaker, I would like to emphasize the significance of Bill 19 and the urgent need for the amendments proposed.

The members will recall, sir, that on April 14, 1977, I advised the House of my intention to introduce proposals for interim changes to the Mental Health Act. At the time I indicated to the hon. members of that Parliament that the whole Mental Health Act was being reviewed by the Council of Health and that, notwithstanding that review, I would not stand behind that as an excuse to not deal with areas which, in the opinion of my advisers and myself and the government, required attention in a more immediate sense. On December 13 last I did just that. I introduced for first reading only a bill to amend the Mental Health Act and again on March 2 of this year.

There are, sir, three principal areas being addressed in these amendments -- civil commitment, confidentiality and the role of the public trustee. Much discussion has taken place since I first introduced the amendments in December but there has been little contention about the intended changes to the Act dealing with two areas, namely confidentiality of psychiatric records and the role of the public trustee. In fact, almost all of the discussion has centred around two areas of concern with the provisions for civil commitment. Most of the people to whom I have spoken, and most of the responses to my letter to every practising physician in Ontario last month -- and may I say that I have had about 1,000 responses to that, it has been a significant response -- have been generally supportive of the bill itself. Most expressed concern over primarily two issues -- the 72-hour period of initial confinement before a second medical opinion is necessary for further detention, and the criteria for certification.

I would like to remind the members that this matter of civil commitment concerns basic and fundamental rights of citizens in our democratic society. In the introduction to his essay “On Liberty,” John Stuart Mill said, and I quote: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self protection. The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”

Mr. Lawlor: Never for his own good.

Hon. Mr. Timbrell: I believe every citizen should have the right to think and to act according to the dictates of his or her own conscience as long as their actions do not interfere with the parallel rights of others. There are few instances when society should interfere with that right unless and until the person interferes or intends to interfere with the rights of another.

In today’s society, much of the fear of the unknown has disappeared, fortunately, from our treatment of the mentally ill. We have come a long way from the days when they were simply locked up, out of sight and out of mind. Today we have only one-third of the number of inpatients in our psychiatric institutions than we had even 15 years ago. In 1963, for instance, we had 15,921 inpatients in our provincial psychiatric hospitals. In 1978, the figure is down to 4,255. Even when people are admitted, they stay for a much shorter period of time now.

At the same time, the numbers of people treated for psychiatric problems on a voluntary basis has increased enormously. Much of this increase can be attributed to the growing recognition of mental illness for what it is; an illness like any other illness, except for the involuntary nature of one aspect of its treatment. Yet this antiquated fear of the unknown leads us to cling to the provision of an outdated Mental Health Act.

When we are dealing with suspected criminals, they are presumed to be innocent until they are proven guilty. Their freedom can be taken from them only for a matter of hours unless they are formally charged with an offence that clearly indicates a threat to society. Under the law, they have recourse to many defence mechanisms.

But when we deal with those we suspect may not be in full control of their reason, we take a different approach. Here the suspect can be incarcerated for 30 days with no recourse if a single medical practitioner determines that the individual poses a risk either to his own safety or to the safety of others.

While I feel that society has the right to protect itself from a real or even perceived danger, I also believe that we should not take away anyone’s freedom for one hour longer than is absolutely essential. Any circumstances that warrant the involuntary commitment of any citizen are, in my view, emergencies. They constitute one of the few examples in our society where a person can be incarcerated without being charged with an offence against society.

The psychiatrists on the committee that recommended this change did not feel that a 72-hour period would be unduly short. In fact, a paper given at the Clarke Institute conference on law and psychiatry last year indicated a worldwide trend toward shorter periods of initial hospitalization and that the period of 72 hours was becoming more common. However, in view of the considerable concern that has been expressed -- and I would have to say that even in the letters of support of the Act there have been many that have expressed concern that in some circumstances a longer time may be needed to make a proper assessment -- I will, when we get to committee, move an amendment to increase the period from 72 hours to five days.

Mr. Lawlor: That is a mistake.

Hon. Mr. Timbrell: On that let me just add that we will, of course, hopefully within the year but in not much more than the year, have both the final report of the Council of Health on the entire Mental Health Act, as well as the better part of a year’s experience with the five-day initial assessment period. Once we can evaluate that experience and review that final report we can then, all of us, decide whether in fact five days is appropriate, or whether the original advice given was more appropriate.

In regard to the second area of concern, the criteria for certification, again this is an issue that deals with the liberty of an individual in a free society. That is what is at stake here, and any confusion underscores the necessity for speaking clearly in an area which is as important as this one.

The criteria for incarceration of criminals are clearly set out in the Criminal Code. Surely those for institutionalization of the mentally ill should be equally clear and equally established.

It is well known that involuntary confinement may result in stigmatization, collapse of esteem, separation from family and community, loss of job, impairment of future employment prospects, and so on. The negative effects, then, of institutionalization almost inevitably leave their mark on the patients of even the finest and the best-run of institutions. My ministry takes the position that individuals should only be subject to involuntary commitment where a threat of physical harm exists.

It has been suggested that persons should be committed to prevent them from squandering large sums of money, or to prevent them from embarrassing their families. Yet, sir, it is unlikely that such persons are certifiable under the current Act. It is unlikely -- perhaps, may I say, highly unlikely -- because many people would not construe the word safety, the criterion for commitment under our current Act, to include economic loss, for instance.

I have to question whether we are justified in risking stigmatizing through commitment persons who do not pose a threat to themselves or to others, but whose idiosyncrasies simply distress their families. I feel that these issues are fundamentally ethical and social, rather than purely mental or legal.

Also, other mechanisms, such as the Mental Incompetency Act, do exist for assisting persons whose minds are sufficiently disturbed to cause them to squander their funds foolishly or embarrass their families. In such cases, perhaps we should remove their control over their estate without taking away their liberty.

Some feel that the amendments are unduly restrictive and that physicians will only be able to commit persons who are demonstrating suicidal or homicidal tendencies. However, persons demonstrating a lack of competence to care for themselves are included among those who can be committed, as well as those threatening bodily harm to themselves or causing others to fear bodily harm from them.


I must emphasize that these amendments are designed to provide for considerable latitude in judgement by physicians. It is important to recognize that physicians are not required to guarantee that serious bodily harm would result before they act. This is very much a judgement call, which is indicated by the word “opinion” in that section. Also, physicians need only be certain that a mental disorder apparently exists. Further, serious bodily harm must be a likely result of the illness.

The matter of predicting future harmful behaviour is of concern, understandably, to physicians because of the threat which is always present; but I’m afraid many of them fear growth in the number of malpractice actions from incorrect decisions. The physicians are being asked only to exercise a medical judgement. They are not expected to make perfect predictions of future behaviour. In law, an error in judgement is not actionable; for a lawsuit to succeed, negligence must first be established. It must be proved that a reasonable physician in the same circumstances would have come to a different decision.

The intent of the proposed amendments is to clarify, not to restrict or constrict. In fact, we believe the amendments give the physician wider latitude than in the present Act. In Ontario, we are continuing to shift the emphasis of our health care resources away from institutions and into community programs, and nowhere is this more evident than in the field of mental health. My ministry’s approach to the need for assistance has included a wide range of alternative community resources, including day care, counselling services, approved homes, sheltered workshops, rehabilitation programs and volunteer programs.

These progressive amendments bring the advantages of present-day thinking to our legislation. We can no longer allow the public or the physicians of Ontario to be subject to the vagueness of the present Act. All parties must be brought to a full understanding of the criteria for commitment so that no one will be committed here inappropriately or without full recourse. We are not out to bar committals; we simply seek to make the ground rules clear.

To my way of thinking, these Mental Health Act amendments represent worthwhile reforms that are long overdue. I believe these reforms are important and I hope the discussion here in the House tonight on second reading, and in committee, will be fruitful and that the House will be able to enact this legislation as expeditiously as is possible. I certainly look forward to the discussion, as I say, not just here but in committee. The critics and I discussed this briefly yesterday and it is my intention, in view of the interest from many quarters, pro and con, to refer this to the standing committee on social development.

Mr. S. Smith: Right off I want to congratulate the minister for bringing in a piece of legislation which I think is in essence very good, particularly keeping in mind the fact that he is going to introduce amendments and that we will have a chance to discuss this in standing committee.

I’m pleased that in standing committee there will be an opportunity for certain members of the medical profession, members of the public generally, members particularly interested in the rights of patients, members in hospital administration, and so on, to give us the benefit of their views. I look forward to a better bill as a consequence. I genuinely wish to commend the minister for taking a stand which I feel shows his own dedication to civil rights and to the fundamental concepts of liberty, for which I believe he deserves commendation.

With regard to those aspects of the bill which relate to the public trustee and to confidentiality of records, I really don’t wish to address any remarks to that this evening. In essence, the principles which are espoused in those portions of the bill are principles which I accept and which I believe the minister has been moving towards since he has taken over his very complex and difficult portfolio.

With regard, however, to the matter of deprivation of liberty, I must say at the outset that I speak not only as a politician and on behalf of my constituents, but also as a person who practised psychiatry for some time as part of a university team and was in charge of an acute inpatient unit at St. Joseph’s Hospital for some eight years.

In the organization of that unit we deliberately had a short-stay principle so that people could return to their community as quickly as possible. In that unit it was my privilege to offer help of whatever type I was able to give to thousands of acutely ill people from all over the Niagara Peninsula. They would come to my unit before any more chronic facility would be considered for their care.

So I am speaking to some extent from the experience of a person who has been eight years on the front line. I’ll tell you frankly that more often than not I wished there were some civil authority to make these very difficult decisions regarding the restriction of the liberty of a patient. More often than not, it was not a responsibility that I myself wanted or for which I thought I had any special human quality that enabled me to make those kinds of grave, personal decisions that have philosophical as well as medical implications. I know most of my colleagues and myself used to reflect at length on the powers that society had ascribed to us, and on the fact that we really did wish that there were some authority outside the medical field that would make these decisions and we would simply carry out the treatment as prescribed to the best of our scientific ability. I tell you that entering into the philosophical realm and depriving people of liberty is a very difficult matter.

Interestingly, the balance of such difficulties frequently lies not on the side of making a mistake by incarcerating someone but rather if you make a mistake and do not incarcerate someone. All of us found ourselves, from time to time, very seriously concerned about what headline might follow if, in some tragic circumstance, a person who was not considered so severely disturbed as to merit involuntary admission to hospital were to go out and do some harm to himself, herself or other citizens. We all had friends who had, at one point or another, been sued for doing precisely that. I never knew anyone who was sued for admitting someone involuntarily unnecessarily, but I knew several people who were brought up into very difficult circumstances for failing to admit someone involuntarily when the weight of public opinion following the fact might have been on the other side.

So we used to consider these matters at great length. I think frankly that there is no obvious answer to this. The best we can do in the Legislature is create that atmosphere and create those rules within which well-meaning professionals, well-trained and working with their peers and not in some sort of strange isolation, can make the best decisions possible to help society to the greatest extent that is possible.

I certainly feel that the 30-day review has been a good provision, but has been far too long a period to force someone to wait if he or she has any reason whatsoever to believe that they have been hospitalized against their will or without proper foundation for that decision having been made. Frankly, it has always been a point with me that 48 hours was what I thought was the amount of time that should elapse before somebody else ought to be available to that person to be sure that their rights had not been mishandled inadvertently. But I can agree that in certain areas even 72 hours or 48 hours might be very difficult, administratively, where there may not be more than one psychiatrist, or maybe not even one psychiatrist. I can see that there could conceivably be difficulties in some areas.

I was going to postulate that perhaps we could have the law say either 72 hours, but going to five days in exceptional circumstances as regulated by the minister, or 96 hours as a compromise. I have been sort of thinking about this, because there is no magic answer; there is obviously no reason to believe that all the angels are on the side of a particular number of hours.

Generally, the only point I want to make is that I share with the minister his concern that in a country that values and prizes personal liberty, it is awfully important. Frankly, as a psychiatrist, I am sure most of my former colleagues in psychiatry do not mind in any way the idea that they would have to share the responsibility for this deprivation of liberty; and the sooner the better inasmuch as once you are going to get on with the treatment and the decision, you might just as well protect the patient’s rights to the extent that it is administratively feasible and reasonable.

Basically, we will have lots of opportunity in committee to discuss the hours and the administrative problems in different parts of the province. The minister has stated his intention about five days; and that is fine. I can accept that he has undoubtedly done certain study into this which he will share with us in committee.

With respect to the other matter, the matter of the criteria upon which a person might be hospitalized against his or her will, this is a very distressing and difficult matter. There is little doubt, if we look at the record and at the situation as it exists, by the rather wide definition of the word “safety” I guess the possibility for abuse exists, because there is a great degree of subjectivity that enters into one’s definition of safety depending on the circumstances that one is in.

At the same time, I don’t believe the record shows that an enormous amount of abuse has occurred. One is left with a question as to why one wishes to change at all. I can appreciate that it is better in theoretical terms to have a definite measurable objective standard that anybody can come and look at and then leave it to the professional merely to use his or her professional abilities to judge whether or not that standard has been met. That is probably preferable to leaving not only that judgement to the professional but also the very matter of defining the standards. I can understand in theoretical terms it makes a lot of sense to find the hardest data possible to be used as your measuring stick, leaving that way as little latitude as possible in the definition of the measuring stick, and leaving the professional merely to determine whether a certain point on that stick has been passed or not.

The difficulty is when you start to think about real people in real circumstances. One is left with having to choose between making errors too much on the side of allowing the doctors too much freedom possibly to make the wrong decisions, and to deprive people of their freedom -- including their freedom to go untreated, if they so desire -- or making too many mistakes on the side of allowing people who really should be treated to go untreated.

My feeling on this, I must say, is by no means black and white. I agree with the minister when he says, by a narrow definition of safety, that bodily harm and potential for bodily harm can be almost synonymous with safety. In point of fact, some of the broader definitions which doctors have used could conceivably be considered to be in some ways an abuse of the Act, if one takes the narrower definition of safety.


I think of situations which I have seen. I think of people who came to my attention, where, with a very narrow definition of bodily harm to oneself or to someone else, I wonder if one really could take into account the terrible harm on a reputational basis, on the basis of the destruction of the stability of the family, on the basis of the mental cruelty of the most severe kind to children.

I’m thinking of individual cases in my experience -- of the complete waste of one’s lifetime earnings, not only financial earnings but in the sense of a business or professional reputation. I think of people who came to my attention at these times and who, after a few days in hospital, saw very clearly how much better off they were to have been treated and were profusely grateful and have remained so for the rest of their lives. They were grateful for the fact that their families were not permitted to be wrecked and their reputations were not ruined and their businesses not totally lost and destroyed.

I think that part of their illness was not having the judgement at the height of their illness to recognize that these things were at risk. They only recognized it once they had calmed down and their judgement had returned to its normal, reasonable state.

I think of having to stand back handcuffed while these people go and wreck their families, wreck their businesses, wreck their reputations. When I think of individual people and families that I’ve known, I must say I find it very difficult to accept the narrower definition which is being proposed in this new amended Act. Yet at the same time I recognize fully that by leaving it broad in any way at all you open a loophole a mile wide; you open a loophole where less competent doctors perhaps, or people who are on power trips of their own, or heaven knows what, might get into these contests of will with individual patients and determine that somehow they know better than the patient himself or herself and use or abuse the means of involuntary admission as a way of holding power over a patient.

I’m disappointed to say that I’ve heard of instances like this and I’ve even seen them. One is left with the question of deciding is it better to make an error on the one side or the other. Because errors will be made; errors will be made no matter what happens and the question is whether we should balance the scale on one side or the other. It may take the wisdom of a Solomon to decide this. I don’t pretend to have that, but I do hope that during discussions in committee --

Mr. Lawlor: You are very modest.

Mr. S. Smith: Well, you know, it’s late at night.

Mr. Lawlor: So you’re not Solomon.

Mr. G. Taylor: It’s funny, we’re all in agreement.

Mr. Lawlor: I thought earlier today you thought you were.

Mr. Laughren: Who are you?

Mr. Conway: Retirement dawns, Patrick.

Mr. S. Smith: The members of the Legislature, Mr. Speaker, seem shocked to learn that I do not feel, as they obviously do, that I have the wisdom of Solomon. I am more modest; they may be more accurate, of course.

Mr. Lawlor: Why was it even necessary to mention it? I mean, you brought up the subject.

Mr. S. Smith: The real question is whether we might be able, in committee, to have the benefit of whatever is available in the way of information as to what evidence of abuses exist, how widespread they may be; and whether we might have the evidence on the other side as to how many such cases there are of the kind that I’m rhyming off. Remember, these come after thousands of cases over eight years; I’m reminded of them one at a time and they come to half a dozen. Maybe it’s not worth a law which leaves loopholes for people to go through merely because of the half-dozen cases I am thinking of.

It’s a difficult decision. I’m really torn with this decision and I hope the members of the Legislature will recognize that this is not a simple matter to decide. It’s not as black and white as it may seem. It’s not as though we are speaking of incarceration in the sense of imprisonment or some terrible deprivation. It’s usually into the most modern facilities with reasonable help; though not always I’m sorry to say. Yet it is deprivation of liberty and so it is a very vital matter to decide.

My view at this moment, and I am open to being persuaded by the witnesses who will come before the committee and other experts in the ministry and elsewhere, is I do not believe the abuses have been so bad. Given the fact there is going to be a much quicker and a much better review procedure demanding a second opinion and giving the patient a chance to have his or her case understood very quickly, be it three days or be it five days, the need to move the balance all the way over to the other side, where only those narrowly defined as physically dangerous would be confined in this manner, may not be as great. I must say my bias, if you want to call it that, but I do believe I am trying to be objective, is that we not define too narrowly this matter of danger to oneself in physical terms or danger to others.

It may be that we should have a narrow definition in the Act, with a paragraph of some kind saying that in the most exceptional and extreme circumstances the following might also be taken into consideration or something along those lines. It might be something along the way that we handled the family law reform. What was the term used there -- gross repudiation? In other words, if we can find, perhaps, one wording that applies in the vast majority of cases, but with some possibility to make accommodation for those exceptional cases that I have called to mind in my little discussion here today, that might be the way out of this dilemma.

In general terms, I feel we must make those administrative changes which are required with regard to the speed of having the second opinion and the review processed. I would personally prefer a less narrow definition of the grounds for involuntary admission to hospital. I would be willing to share with the minister and with the members of the Legislature generally the very difficult task of arriving at such wording, because I recognize that some basic principles are involved here.

In summary, I want to say I am happy that the minister is proceeding with this bill. I believe that it is necessary for us in the Legislature to look at these very basic issues of human rights and at the latest views regarding the treatment of mental and emotional illness. I think the minister has done well to bring this forward and the procedure which he has suggested for dealing with this further is an excellent procedure. I hope my remarks will be taken as constructive and I trust that we can in this Legislature work together to produce a bill which will accomplish the purposes and serve the citizens of Ontario well.

Mr. Breaugh: In general, we are in favour of the principle of this bill. That should come as no surprise because through private members’ bills, through speeches during estimates and in speeches outside of this House, many members of this party have pointed out some of the difficulties that were there in the present Act and have pointed to some of the mechanisms the minister has chosen to use and to present to us in some form in these amendments.

It does not take a great deal of scientific skill to zero in on the two most controversial areas: The matter of definition and the matter of what time period will be used for the assessment. Those are matters which in some instances really do require the members of this House to get some expert opinion. The difficulty, of course, is that there seems to be some difficulty among the experts to come to a conclusion on that.

I note that the minister has already addressed himself to the one difficulty in moving or proposing to move an amendment. He says he will move it to five days. That’s a matter that I think certainly deserves a good deal of consideration. The other matter of definition, on which the leader of the Liberal Party has expounded at some length, I think is also going to be a difficult problem before us.

I welcome the opportunity to get this to committee, because I think there are a number of people in Ontario who will now want to make representations before the committee, where previously they had been presenting briefs and having interviews with various critics and with the minister. So it is probably a time to take it to the committee and to deal with those specifics of how we will alter this bill, and I would hope that we would not be faced with the irrational motions through all of this, but rather that we would take it as an occasion when we could sample expert opinions on both the civil liberties point of view -- and I would contend there are some expert opinions being presented; at least, I’ve heard some presented on that point of view -- and on the rather technical aspect, from a psychiatrist’s point of view, of whether they can provide that kind of assessment in that time in all instances. I think that we want to spend some time going through that.

There are a couple of other things, in discussing the principle of the bill, that I think the members of this House at least should be mindful of.

The minister mentioned in his opening statement, on tabling the bill in the House, that he has the Ontario Council of Health doing a thorough review of the Mental Health Act itself. That, I think, is a commendable thing. It’s certainly overdue. I want to add the caution, as we go through our debate on principle and again on clause-by-clause, that we don’t either accept the notion that we abandon everything else and hide it under this review that’s under way or run the other way and say in effect: “The review is no good, or the review will take too long, and therefore we will piecemeal our way through this.” So I think there is a need to exercise some caution as we proceed with this bill.

I know that I have had submitted to me, and have under active consideration, a large number of amendments that could be put to this Act. I think we will make the effort, and show considerable restraint in doing so, being mindful of all of this.

In this debate I want to touch on the major issues as the minister announced them in tabling the bill.

The civil liberties point of view is a great difficulty, I think. It causes me some problems in thinking through the question of whether someone who supposedly or allegedly has some mental disorder should be treated by us as worse than a criminal. I find it inconceivable that we would do that but, nonetheless, I have seen some rather well argued cases that indicate that we do.

The matter of confidentiality has been raised in this bill. I recall some rather embarrassing moments in this House when there were indications, at least to my satisfaction, that that confidentiality had been breached rather severely. I’m pleased to see that the minister has responded in that regard. I think the role of the public trustee in all of this is somewhat clarified by his proposals in these amendments, and I support them.

Frankly, I find it difficult to take this thing in isolation. We not only must deal with the theoretical concept of civil liberties and the rather technical concepts of a psychiatric diagnosis, and whether that’s possible or not, but we also have to deal with the real world.

I want to put on the record, again, what the minister said in introducing this, because this is the point that poses me some difficulty. The minister said:

“The emphasis has been on treating as many people as possible in the community. [In psychiatric hospitals.] There has been a substantial growth both in the establishment of mental health units in public hospitals and in community health programs.”

That’s true to some degree. It’s certainly true that those institutions have been under way. I think we cannot run away and hide from the concept that they are suffering somewhat under budget restraints and that there are a number of programs that are having some difficulty.

When the minister introduced the concept of this bill, when we discuss it in the course of these debates this evening and in future debates at the social development committee meetings, I want to ensure that those services are in place. The minister has made somewhat of a point of saying, “You don’t need to worry about commitment to psychiatric hospitals, because there are a number of other services available in the community to which people can turn.”


I have noticed on a number of occasions, in particular when he responds to psychiatrists who say there’s a difficulty in doing that kind of assessment, he has used the line of argument that other services are available, that in fact they shouldn’t be committing people. Now I happen to agree with that, I simply want some assurances.

I take as an example the minister’s reassurance in his opening statement on this bill this evening that he will ensure those services are in fact available. When he points out there are other Acts under which certain difficulties that people get into might be covered, that’s fine with me; but when he does say that there are other facilities, other places that people could turn to other than having them committed, then I think the onus is on the members of this House to ensure that those services are in fact in place and can provide the services the minister says.

I note there are some controversies about the place. I want to just put into the record some of the correspondence I have had and some of the conversations I have enjoyed with people during the last few weeks in consideration of this bill. The Ontario Medical Association, of course, has been rather strong on the criterion, the 72-hour restriction. They expressed their concerns on behalf of a significant number of mentally ill patients.

I notice, too, in the little blurb which they sent around quoting an editorial from the London Free Press, which deals essentially around the 72-hour debate, that here we find perhaps the source of the five days, suggested by Dr. Barry Boyd, chief of staff at the mental health centre in Penetanguishene and suggesting that that might be about right. I think we would care to entertain some further rationalization in that regard and I hope that we will do so during the committee deliberations.

I think we are all well aware that the member for Parkdale (Mr. Dukszta) has introduced private bills in this House which address themselves very specifically to the problems contained in this particular Act, and I think some credit should go to him for sometimes presenting to this House bills that at the time were met with some scorn, and disrepute was attempted to be dumped on him as a private member of this House for introducing such private bill legislation, but I think we now see that, on occasion at least, those private bills do survive in different forms; and I think we have noticed a substantial change on the part of this government in dealing with these problems. I sense that the greater sensitivity to the problem in its entirety, if I could be so generous about it all, is perhaps due not in some small measure to the member for Parkdale who has persisted in asking questions at the appropriate time and putting forward bills to make our position clear on it.

I want to point out that we, as everyone else I suppose in the House, have had correspondence from around the province of Ontario, in particular from the Hamilton Academy of Medicine which has given us two or three letters on this and several of our members have discussed the mailer with them. I would think that they, as an example, would be an excellent group to have appear before the committee. It strikes me that they do raise some legitimate concerns. They raise matters which are perhaps of a professional nature, but I would caution that again we will be looking to move through that exercise rather carefully, making sure that we do not become a professional or quasi professional group of temporary psychiatrists making this judgement, that we attempt to search out opinions which may not always agree from a professional point of view and that we seek some consensus on that.

I note too that the minister has had forwarded to him some specific instances. There’s an example put forward by Dr. William Marsh, who works at the Sudbury General Hospital; he quotes from some actual cases there where he would have to make those decisions, and it happens that I will be meeting with him tomorrow morning to enter into some discussion. I think it is important in all of this having said that we support the general principle of the bill, that we do exercise considerable restraint in terms of trying to find consensus if we can in those key areas where there are obvious disputes. If we can’t, then some rationality in the process and that’s important.

I notice too that Mental Health Ontario has now rather formally endorsed the principle of the bill. I think it’s important to understand that in their considerations, as in ours, they point out that this isn’t just quite as simple as people might like to put it in some instances. It is a little more than just a clinical judgement. It’s a little more than having, for example, your family doctor deciding whether or not you get a cast or a sling on your arm. It really does involve a form of incarceration. It does involve taking away people’s basic human rights.

I think that that restriction to individual freedom should be paramount in our minds, I would say, in particular in the light of the concept expressed by the minister in his opening statement in tabling the bill and what he has repeated again here this evening, that we are talking about extreme circumstances under which this thing would be exercised. We should continue to look at it in that light. We should not forget that patients are consumers of psychiatric services and they should have some choice in discussing and/or rejecting treatment, save and except those few cases where that choice is not possible.

I notice one interesting statistic which I did run across in the research we did on this one. In 1968, the last year for which Mental Health Ontario has figures, there were 7,000 to 8,000 involuntary admissions to Ontario psychiatric hospitals. That strikes me to be on a scale that certainly does deserve, contrary to what the leader of the Liberal Party said, some careful investigation. That point has been made through the years by a number of people. I would simply like to reiterate that.

In summary, I repeat that we have considerable sympathy with and we will support the principle of the legislation. We are pointing out some areas where there are obvious problems, where there is no consensus and which need to be dealt with in a clear, calm and rational way. I would hope that during the course of committee deliberations we would be allowed that privilege.

Mr. Conway: I too rise to support, in principle, the bill before us, Bill 19, An Act to amend the Mental Health Act. I do so for many of the same reasons that my leader outlined in his remarks earlier this evening. Unlike my leader, I do not share or have a personal experience in this very serious and delicate area of public policy. I must say the government is very properly involved in both this and a more widespread review of the Mental Health Act in this province. Like my leader, I want to commend the Minister of Health for his concern and for his demonstration that, as far as he is concerned, this is a matter of priority. I certainly will do all that I can to encourage in a fair way the passage of these amendments before us here tonight.

It is something of an amazing feature for many of us who were not involved with the Mental Health Act or mental health procedures prior to our involvement in politics; it was for me at least quite an education to find out that we still do have some rather 19th century attitudes in the areas of mental health. I think these amendments speak to very significant and much-needed improvements in that regard.

The minister indicated that these amendments deal specifically with three areas of improvement. The area of greater involvement for the public trustee, particularly in the matter of outpatient individuals, can certainly be agreed to without any difficulty. The second area, that of confidentiality, is one which probably needs very little reinforcement. There has been a considerable dialogue, both in this Legislature and other assemblies in the land, which speaks to the immediate requirement of tightening up the otherwise loose, or sometimes loose, flow of information which had the potential of very serious damage to those involved. I assume that it is the minister’s intention to consider fully the report of the Krever inquiry when that report is available so as to improve further in lines where the inquiry may demonstrate improvements, further to these amendments tonight.

I must say as a lay person that in the area of real controversy, to which members have made reference, the area of civil commitment, particularly as it relates to involuntary admission, in broad and general terms I see it as a conflict between medical practice in the psychiatric field on the one hand and civil liberties on the other.

Rightly or wrongly, I am the captive of my own environment in this particular matter. I have been involved very personally in one particular case and less so in another, which makes me personally want to come down very sharply on the side of the civil liberties argument and, therefore, keep as restricted as possible the grounds and the criteria for involuntary admission.

On the basis of my experience, I have seen certain things which make me want to extend to the involuntarily committed individual in this respect all the civil liberties that it is in my power within this Legislature to offer that individual. However, I must say that like other members engaged in this debate tonight I am appreciative and certainly anxious to have this matter referred to the committee to be persuaded perhaps away from the position which tonight has me very squarely on the side of a very restricted basis for admission.

There are some aspects of the bill that I would like to comment upon briefly and ask, where appropriate, the minister to consider a response later this evening. One of the very significant improvements this particular bill offers, as I see it, is the aspect of the administrative review board. I think that it provides a mechanism, as I understand it, which will allow the aggrieved party, where that is the case, to have a more immediate recourse than is presently the case with the courts. I think we can all understand and appreciate the difficulty in getting an immediate redress through the court system in our province today. I want to say that for me the administrative review board procedure spoken of on page 10 of the Act -- it’s section 10 as well -- is a very strong and positive step in the right direction.

I would only hope that these administrative review boards can be kept as informal and as non-legalistic as possible because I would have a great fear that if they took on the very adversarial, legalistic form which may very well be possible, they would thereby lose their attraction as a step before the court system. I think in principle the administrative review board spoken of in section 10 is a very good procedure, but I would only hope, and I would strongly urge, that the framework for these review boards be as informal and as non-adversarial as is possible. I would draw that to the minister’s attention for such comments as he may feel he wishes to make at a later time this evening.

I’m just taking things piece by piece, but I must say the minister’s statement tonight that he’s prepared to introduce an amendment in committee allowing for a five-day versus 72-hour period for the involuntary commitment is one which I can appreciate as someone who lives in rural or small-town Ontario where the facilities are just not as extensive as they are in Metropolitan Toronto or in the Niagara Peninsula. It seems to me that is a very useful amendment and one which I will be quite pleased to support.

Like one of the previous speakers, I have received a considerable amount of mail in this respect. I draw to your attention, Mr. Speaker, a recent bit of mail from the Ontario Medical Association in which Dr. Lesser, chairman of the section of psychiatry at the OMA, expresses his reserve about the previous 72-hour framework. Dr. Lesser said, “Involuntary admission should be at least five days.” I was impressed by that when I heard the minister’s comments tonight because, I don’t wish to make any false associations, but I’m glad to see that he’s not only receiving, but presumably paying attention, as seems to be the regular wont over there, to his OMA mail. I applaud him for it in this instance.


I was impressed by that section of the bill, section 5, subsection 3a, on page six of the bill, if I can refer to it as that, in which, and I quote: “An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility,

(a) for not more than two weeks under a certificate of involuntary admission; and

(b) for not more than,

(i) one additional month under a first certificate of renewal,

(ii) two additional months under a second certificate of renewal, and

(iii) three additional months under a third or subsequent certificate of renewal ... ”

I was wondering, and would appreciate any clarifications that the minister might offer tonight, as to how many psychiatrists, physicians, whatever, are considered as a minimum in this particular section. Is it anticipated that in the case where second and third certificates are offered that it will be a requirement that the same physician/psychiatrist who, for example, attended to the first certificate be involved in the second and subsequent certificate issues? I don’t know, but I presume as much. I would appreciate clarification from the minister this evening on that.

Hon. Mr. Timbrell: I’ll answer the question now to perhaps assist the member’s thought processes. It could be any physician in the facility. The requirement is, of course, that on the initial admission there be a second physician who assesses, within what would be the five-day period, whether the person should be detained as an involuntary patient. Of course, the further along you go I think it is unrealistic to suggest that the same physician would by law have to follow, because people do retire, move on to other positions, take ill, whatever. The normal course of case management is that they would try to wherever possible keep the same physician involved, but I don’t think it would be wise to put it into the statute.

Mr. Conway: I appreciate the minister’s comments on that. It seems to be understandable that in certain cases an attending physician may in fact have retired or perhaps moved on or whatever. I would expect that to be very much in a minority of cases. I would certainly want to talk about this further in committee, because if a second and third certificate were issued by a physician not involved in an earlier stage, it seems to me at this stage to go against the grain of much of what is spoken of in other parts of the bill. I appreciate the minister’s comments and that is something that we may very well wish to speak of in committee.

I don’t for a moment suggest that this is a particular substantive point but in a similar way I was interested in sections 2 and 3 of the bill. I read from section 2, subsection 4 on page three -- I think it is easier to refer in that sense -- and I quote: “An application under subsection 1 is not effective unless it is signed by the physician within seven days after he has examined the person who is the subject of the examination.”

Now that is quite understandable. I was wondering whether any consideration of a similar time period was given to those sections dealing with the justice of the peace and the constables, or whether any requirement was felt necessary, because there is no time frame allowed there. It may be that there is a qualitative difference in the mind of the minister. I am prepared to accept that.

It seems to me that it is something that we might wish to consider tightening up since -- and I quote from the same page, only section 3(l) in this case: “Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice ... ” and it goes on to speak of the criteria. There is no time frame talked of in that section in a similar way as was outlined in the section dealing with the physician. Perhaps it is not necessary.

That is something I would like to discuss a little further in committee -- whether you feel that the physician should be kept to a seven-day period and the justice of the peace and/or the constable perhaps would not face the same requirement. It may be a concern. It just struck me at the first and second reading of the bill as an anomaly that I would like to have some comment upon.

In general those represent some of the comments that I would make this evening. I want to say that in principle I think the bill is a very proper step. I accept, and I very much appreciate, the amendments going before the committee.

I wish to be fair to the witnesses who will be called, and to many of the people who have written complaining, particularly the medical profession, who fear that this is becoming a matter that has less medical input and more legal orientation. I suppose there are some of us -- my friend from Brant-Oxford-Norfolk (Mr. Nixon) is not here at the present time -- who would fear the unnecessary involvement of the legal profession in such matters. I don’t for a moment suggest that I am one of them, but it seems to me that many of the physicians with whom I have spoken feel very much that this legislation, particularly the involuntary commitment aspects of the amendments, are being offered because the system as it presently is organized is open to considerable abuse.

My view is that there have been abuses. There is no question in my mind that there is a significant loophole in which to exercise certain things which I think very unfairly impinge upon the civil liberties of many people. I have personal knowledge of some people who I think, and who feel themselves to have been very seriously afflicted by the present legislation.

One of the things I would ask the minister sharing with members at the committee stage to consider at some point in this debate is -- that social development committee is, I think, going to be the place to be for much of this session -- if he would indicate in the jurisdiction over which he has control documented cases of abuse. This might allay the concerns of those in the medical profession who seem to feel, as one of the letters that I have points out, that, “yes we know that in these debates there are two or three well-worn cases -- one in BC, one in Niagara Falls, Ontario; one in Nova Scotia or New Brunswick -- but we never seem to get a great feeling that there is a massive abuse in this jurisdiction such as to require this kind of revision.”

I’m just wondering whether the minister could give some assurance to allay those suspicions and indicate some cases for those who might wish to see them. Perhaps they would have their confidence in the whole process restored, if that’s a fair enough word; it may not be possible. I would only recommend it to the minister since that seems to represent a very considerable thrust of opposition to the change, simply because many of these people in the medical profession are arguing that most of these abuses seem to be imaginary.

My personal experience as one private member is that they are not imaginary. I will agree that it is a generalized personal experience but to the extent I have been involved I have seen cases which frightened me very much. It’s the kind of case which makes me want to come four-square on the side of the civil liberties of those involved, recognizing as I think we all do in this House the very delicate balance that must be struck in this instance.

But I would suggest to the minister that if there is some accommodation that he might make, either specifically or more generally, to indicate the specifics of a pattern of abuse that the ministry or the government has been confronted with, it would materially assist in the disposition of this very important legislation.

As I said earlier, I am very pleased to support this in principle, and I am very delighted it is going to committee for the kind of amendment and the kind of public input that I think it requires.

Mr. Dukszta: Mr. Speaker, the minister is very paradoxical. He and myself have had disagreements all over the place. He and I know that our province has a two-class system which overservices upper and the middle class individuals, even for minor problems in living, while underservicing a large number of lower class persons, often with severe or incapacitating problems. The vast number of individuals with moderate, marked and even severe problems are thus effectively denied access to professional help. Our system is characterized by gross underservicing of long-term ex-patients who remain in various boarding homes, the back wards of the community, without follow-up on rehabilitation. I wanted to put this in a context because what I’m going to say next is all complimentary in effect.

It almost hurts me, but I’ll say it. It’s a very good bill, I am pleased to say that and pleased to see it, and I will support it fully. I do want to go over a couple of points. To start somewhere, maybe it needs to be put in the perspective of how the present Act developed, the one which we are amending, and what went on before, which made it so difficult to function under and which deprived people even more intensely of liberty than the present Act does.

I remember, because I worked under both systems, it was very easy 10 years ago to deprive an individual of civil liberty and incarcerate him in a psychiatric hospital without much reason. Usually the reasons given were so-called mental illness. The Mental Health Act which came in a few years back changed that, because it changed a major principle on which an individual can be certified or can be deprived of his liberty and put into an institution for treatment. It changed from the point of view of looking at an individual as an individual with mental illness and looking at an individual with a major social problem. It may seem minor to discuss it this way, but the definition was very important because it implied a change in definition of what is a psychiatric problem and moved towards describing it as a problem in living.

It is that Act, which Barry Swadron was part author of, which moved us towards accepting that maybe the only way for us to treat an individual who has this type of a problem is on social criteria. The two major criteria were always that an individual is dangerous to himself or herself or the individual is dangerous to others.

The present Act, the one on which we are working now to amend, erred in three respects. I think we need to go over them to understand what the present Act accomplishes, and maybe a couple of things which still need to be changed. The present Act, above all, had a lack of basic accountability on the part of the physician signing certificates of form 1, or other forms for that matter. Two, there was excessive reliance on the discretionary power of the physician and psychiatrist in dealing with the individuals who either want to injure themselves or others without recourse to a formal legal process. Three, there was -- and soon I hope no more -- a looseness of procedure that sprang largely from the above two points.

For example, form 1, which is the most common form used to deprive individuals of their liberty, has been used as a shortcut for compelling an individual to take treatment. Forms are full of clinical clichés. A recent legal study suggests that 70 per cent of form 1s were illegal documents that did not specify the fact that an individual is dangerous to himself or others. The present form 1 of the Mental Health Act allows an individual to be detained against his or her will for 30 days. At the expiry of that time, the individual can be detained, if a psychiatrist considers him or her to be still dangerous for an extended period of time, virtually forever.

Each individual who is deprived of his liberty by a psychiatrist or a physician who completes form 1 must -- and that is a modification which is missing in the present Act -- receive due process of law. The individual who is being deprived of his or her rights must be treated in that sense as any other individual who is being arrested. Though being mentally ill or having a problem in living is not quite the same as having committed an illegal act, nevertheless this individual who is being deprived of his liberty must not be treated less fairly than someone who is committing an illegal act.


In that sense, a psychiatrist or physician who deprives this individual of their liberty must warn or tell the individual what is happening and there must be some kind of a protection extended to an individual by having the certificate sent either to the Attorney General’s office or to a duly appointed counsel who can produce an immediate check on whether the form was properly filed and introduces a certain protection in terms of the civil rights.

I think that any type of change in the Act, maybe we could try to introduce in an amendment during the committee stage, would provide the necessary protection of civil rights for an individual who is being deprived of their liberty. Specifically it speaks to the general McRuer approach towards the civil rights for individuals who live in Ontario.

“Being detained,” on form 1, however necessary it may be for the sake of the individual or others, is always a traumatic event. But the provision of this two fault course would reduce the incidence of certifying individuals, temper the discretionary power of the physician and psychiatrist, and introduce the significant corrective action of the due process of law.

I am also, like the member for Hamilton West (Mr. S. Smith), both a psychiatrist and a legislator. I have found when I am speaking on this subject that I am in no conflict in terms of my two roles. I have worked as a psychiatrist in the community, in private practice, and I have worked in the hospitals. I am going to mention a couple of my experiences to show why I support the bill strongly and also perhaps, to provide some answers to the questions and to objections to some of the parts of the present bill, by a number of people, specifically in my own profession. I have recently had a case of an individual, a male student who was referred to me by a family physician but largely in effect by the parents. The individual has not been studying, has not been working, has not in fact has been going out and has had many of the problems which are associated with being described as psychiatrically ill. He has a major problem in living. One of the things which we discussed when we had a family session, was that this patient also had not washed himself, which if you don’t do it for a number of days can become a major problem

I accepted to see this individual for a period of time, and continued seeing him until a couple of weeks ago when the individual confronted me with a statement that I was -- on the one hand I was exerting all the pressure from the family on him so that he should behave himself, and yet he read some of my statements on psychiatry and on the question of commitment of people and the role of psychiatrists generally and he said that I was completely inconsistent with my approach.

On the one hand, I was exerting the pressure that he should conform to society and on the other hand I believed very strongly in civil rights; and he was right. The individual was right, that in effect one plunges to the physician or the psychiatrist role; one plunges into the role which is incompatible in the long run with the absolute welfare of the patient. I assumed a responsibility which was not mine to assume. I assumed an overriding interest and direction, as if that individual was a child, I should add that in my opinion, and that of everyone there, it was not considered that this individual was dangerous in any sense to himself or to others. There is no reason why I could possibly, in that sense, send him to a hospital.

Incidentally, 10 or so years ago, he could have been certified on the very grounds which I have mentioned to you and which originally brought him to me. So I am glad that it was changed. In fact we parted. He said, “I really don’t want to see you,” and I agreed. It was his problem, he had to work it out. And if it didn’t work out, if those things continued, then in his relationship between himself and his parents they would have to work out whether he stayed at home, and who was going to maintain him; but it is not the responsibility of a psychiatrist or physician to take over and do those things.

And that can be extended, that in many respects the physician, the psychiatrist, maybe especially, extends his responsibility to cover a number of problems in living which are, in effect, none of their business.

When I was working in the hospital where I was responsible for an acute admission unit which admitted something like 750 people to the unit per year -- I worked, and it is no secret, at the Queen Street Mental Health Centre -- many individuals were certified to come in there who maybe could have been treated if there were facilities available outside. There were also a number of people who were difficult to handle and who were dangerous. Appropriately enough they were admitted to that hospital. But, of course, the majority of people who were there did not have the major problems which we associate with psychiatry, which is that they are, “crazy, dangerous, self-destructive” et cetera. It was always the small minority of people.

There are people who object to this loosening of present rules in this present Act, of reducing the limit of the first certificate, originally to 72 hours and now to five days, who probably react to some preconceived notion of what it means to have a mental illness, to have a psychiatric problem, and not to the reality of it. This does not deny, and I think I would be the last one to deny it, that there are problems, indeed, when people are dangerous -- dangerous to themselves or dangerous to others. There are always people in all societies -- it’s endemic in some, maybe -- who are individuals described by our society as in need of some kind of intervention, due to the response of the community at large or because they are capable of communicating this themselves.

There will always be this problem which we have to deal with. But it is important that when we’re dealing with this type of problem that we do not ruthlessly deprive people of liberty on the question that this is for treatment, or for their benefit, because more often than not for most of those individuals, it is not, in fact, for their benefit. Only in those unique cases which we have talked about does the individual need to be deprived of his liberty. It is almost worth repeating what the bill says, because I accept that there are probably only three criteria on which an individual must be deprived of his or her liberty.

These points are repeated in a number of sections of the new amended bill. The first one says that the individual “has threatened, or attempted or is threatening or attempting to cause bodily harm to himself” or herself, or “has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him,” or he “has shown or is showing a lack of competence to care for himself.”

I don’t believe, unlike maybe my professional colleague on those two counts, that it is restrictive, too narrow a definition. I actually insist, and I repeat this again and again, that these are the only criteria we must have and that any extension of it -- and I hope to oppose it if anyone introduces an extension of this definition -- any other extension of this will diffuse the concept of what is a major social problem or what is a problem of living which demands an individual should be deprived of his or her liberty.

I believe we must not retreat to a time when it was easy for a physician, or two physicians, to deprive individuals of their liberty, often on the slightest provocation. We must not go back to that time. And for this reason, the bill is a very important one and should be kept as it is.

I’m stressing this because I know that a number of individuals, including members of the OMA and others, have reacted negatively to some aspects of the bill. The minister maybe has been conscious of that pressure and, for once -- well, not for once; he seems to have needed a lot of support almost everywhere today and yesterday -- but on that he needs the fullest support that I can possibly give him, which maybe I wasn’t prepared to give either.

I don’t want to put this into the context of what needs to be done because this is not a fully appropriate response to what needs to be done to provide comprehensive psychiatrical care in Ontario. Some of it has to be said. It is clear that it is not enough for us only to be concerned about that one aspect of the psychiatric field. We need to be concerned about what we do with people who are receiving acute care; who delivers that acute care, at what place they are getting it, and also what happens to the people with long-term chronic problems in living. Clearly our system, especially the provincially-supported system, which now is grossly deprived of funds, is inadequate in dealing with many of those problems.

We grossly abuse our general hospitals. They tend to provide care only for people who often have minimal psychiatric problems and often, if not most of the time, for individuals who are of middle class or upper class origin. At the same time we put all the lower class individuals in the provincial hospitals where they get inferior treatment. Our large system of psychiatric hospitals does not provide any backup services in the community, either in terms of rehabilitation, sheltered workshops, industrial therapy or those things which are now considered more essential in rehabilitating individuals with psychiatric problems than any type of more medically oriented system.

Having said that, let me just say that this aspect is obviously to be dealt with in another section. It does not change the fact that our system stinks as a means of providing psychiatric care for individuals who are in need of it, but this bill, in respect, is a major advance.

Mr. Kerrio: Mr. Speaker, I have before me a fair amount of documentation that was given to me by an acquaintance from Niagara Falls, a medical doctor, who writes the column “The Doctor Game” under the name of W. Gifford Jones, MD. I am very pleased to be able to pass on to the good doctor the information that this particular debate will go to a standing committee where those people who are expert in these matters will be able to address themselves to every aspect of the bill. But in this documentation, and through you to the minister, I would like to indicate my concerns that so many people in the medical profession, indeed those in the specialized aspect of the medical profession as it relates to psychiatric treatment, would have the kind of input from the minister that would compel them to write letters such as I have before me.

As I said before, I am pleased that the good doctor will be able to appear before the standing committee and get into many aspects of the bill as they relate to his concerns.

But I would like to put one of these letters on the record. It would indicate the kind of concern we have here as to the kind of rapport that exists between the ministry and those people in the profession. This letter was directed to Dr. Gifford Jones and it reads as follows:

“Dear Sir:

“I read your article of March 9, 1978. I would like to express my gratitude for your open statements. I concur with every single one of them. I have been practising psychiatry in Sault Ste. Marie for 17 years now. The next mental hospital is 300 miles away and I have had to handle any psychotic emergency myself.

“When the Mental Health Act of 1967 was published, at first everything was easy. If patients were a danger to themselves or someone else, there was no difficulty in getting a justice of the peace involved. However, things have changed. The Mental Health Act has been reinterpreted by judges and justices of the peace to the point where I am no longer vigorously backed by the authorities.

“The proposed changes to the Act will make it infinitely worse and I will have no choice but to simply withdraw into my shell and let the police and the courts worry about the mentally ill. I find this most frustrating, because it goes directly against my duties and obligations as a doctor of medicine.”


Because some of the same kind of documents were delivered to the minister, and I have his reaction, I would be so pleased when the minister addresses himself to the concerns of people such as the doctor that the minister will in fact have them made aware of the specifics in the bill and the areas that they may have misinterpreted to some degree. But when we get doctors who write such letters -- and this is one among many; it is not a single letter that I have taken out. We have documentation from 42 professional people, including psychiatrists, physicians, a dermatologist, three or four general practitioners and registered nurses who have worked in psychiatric wards. So the minister can see that we do have a fair amount of documentation from those people who have been very close to the problem.

I don’t imagine there are too many of us in this Legislature who haven’t at some time or another had either a friend, an acquaintance or someone close to us who hasn’t been touched by some form of mental illness. The concerns that have been raised here seem to revolve around two particular aspects of the bill, having to do with involuntary commitment and the kind of time that would be given to the assessment of those commitments. I am very pleased that the minister has seen fit to consider an amendment to that part of the bill that would raise that period to five days as opposed to 72 hours.

The very narrow description as it relates to serious bodily harm should be reconsidered, because in many instances those people who have mental disorders do great harm to their families and their friends in terms of the other aspects of mental illness, other than serious bodily harm.

As I said before, I am extremely pleased that this bill is going to standing committee, that in this instance a person who is much more able is going to make a presentation and that there will be an exchange where the minister can explain some of the differences where there may be some inconsistencies or misunderstanding of the bill.

In conclusion, I hope that we will not have to address ourselves to the kind of thinking that prevails among many professional people out there who are well thought of in their community and who would write and suggest that we do not pass this legislation and that we need less law, less red tape and more common sense in this area.

I think a comment that the good doctor makes is worth putting on the record: “In my years of practising medicine, I have never met one doctor who wanted to commit a person without good reason.”

When we bring into perspective some of the concerns of the civil libertarians and the kind of comparisons they make, I think we have to be very careful that due consideration is given to changes in this very important law as proposed in this Act to amend the Mental Health Act. The time for those people who are experts in this field to present themselves at the standing committee will certainly benefit all of us in the Legislature and the people of the province in terms of meaningful input to the amendment to the Mental Health Act.

Mr. Lawlor: Mr. Speaker, mental health is what one does with his or her own sickness.

Mr. T. P. Reid: Stop there, Patrick.

Mr. Lawlor: Everyone to some degree is mentally unhealthy. Everyone to some degree has some sovereignty or control over that. But to pretend that there are thoroughly healthy people is ridiculous. First of all, it would somehow separate you from the rest of the human race. To be cognizant of what the source of this illness is in oneself is the only method of therapy or cure. So let us feel in some alliance with those about whom we’re speaking tonight.

I spoke to a psychologist the other day and he said politicians are the least apt to do so. He felt there was some kind of natural resistance in the political animal against admitting his own fallacies, whether of mind or of matter.

Mr. Makarchuk: Self-defence.

Mr. Lawlor: I think it’s a pretty prevalent form of disease which occasionally even permeates this particular chamber.

Mr. Makarchuk: Name names.

Mr. Lewis: Or portions thereof.

Mr. Lawlor: Sometimes a kind of hysteria merges up as for instance at 3:15 this afternoon.

I have some misgivings about the 72 hours, quite frankly. I wish the minister had left it alone for the time being until we got the testimony, instead of yielding to pressure from the powers that be and going the other way and possibly having to pull back.

The reasons here are in the interests of civil liberties of course. The shortest conceivable, at the same time reasonable, time in which an individual is confined for this or any other reason, but particularly for this as it imports no moral fault, the better it would be. Then, if subsequent to that time, a greater period of confinement as objectively arrived at -- and I have a word to say about that -- is necessary for that individual, so be it. On the whole I rather commend that.

I’ve heard the practical reasons given for it -- the weekends, the unavailability of doctors and a number of other reasons like that. I wouldn’t have thought the expediency would have overcome the basic doctrine of liberty involved. The minister delighted in quoting, to initiate his remarks, some statements from John Stuart Mill. I won’t go deeply into Johnny tonight, but he didn’t quote the whole thing. He stopped along the way and talked about the harm to others in the introductory section of that essay. He read this portion: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”

Listen to Mill. I’m quoting him just to repudiate the minister.

Mr. T. P. Reid: That takes a certain amount of humility.

Mr. Lawlor: He says: “His own good” -- the good of the individual -- “either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear because it would be better for him to do so, because it will make him happier, because in the opinion of others to do so would be wise or even right. These are good reasons for remonstrating with him or reasoning with him or persuading him or entreating him, but not for compelling him or visiting him with any evil in case he does otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil in someone else. The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part that merely concerns himself, his independence is as of right absolute. Over himself, over his own body and mind, the individual is sovereign.”

Mr. Lewis: Amazing. You are the only ministry that even doctors John Stuart Mill. It is unbelievable.

Mr. Lawlor: Do you know how far Mill is prepared to carry this? I’m not going to spend a lot of time on it but that particular doctrine used to be what was called liberalism in the 19th century, to which I don’t think a single Liberal in this House would any longer adhere.

Mr. T. P. Reid: It is conservatism in the 20th century.

Mr. Lawlor: Such is the power of socialism, such is the power of our recognition of our responsibility to others and that what we do on our own individual ride is not self-determining, that we are responsible and beholden to others for practically every thought that we as individuals have. That was the dawning realization and that came with a deeper sense of community as the century developed.

I just wanted to point out Mill goes this far in the section of the essay “On Liberty,” which by the way nobody ever reads; the last chapter, where he makes an application. He says, “On the other hand, there are questions relating to interference with trade which are essentially questions of liberty ... ” Of course, Mill wrote this when he was fairly young. He died, bless his soul, a socialist. He pretty well repudiated all these earlier positions.

“Questions of liberty such as the main law.” That is a law having to do with temperance in England, already touched upon. “The prohibition of the importation of opium into China is a restriction on the sale of poison.” He says if people want to buy poison, if they want to import opium into China, you have no right to interfere. The law may not intervene in these particular circumstances.

Mr. Makarchuk: Besides, it is bad for business

Mr. T. P. Reid: Is this party policy?

Mr. Foulds: Liberal Party policy.

Mr. T. P. Reid: Nineteenth century liberalism.

Mr. Lawlor: It was the basic Liberal position -- the whole of 19th century liberalism. As I say, you don’t know your own roots. You don’t know where you came from.

Mr. Makarchuk: The opium trade.

Mr. Lawlor: You hardly know who your father is.

Mr. T. P. Reid: And you were called the Utopian socialist.

Mr. Lawlor: Liberals in the modern world are all illegitimate. They can’t put their finger on it.

Mr. T. P. Reid: Not all of us.

Mr. Lawlor: Just a couple of points. Whether I get to the committee or not at least it will be on the record. It bothers me slightly and I just bring it up for what it is worth.

I notice you use “a physician” -- not necessarily a psychiatrist or psychotherapist or a man specially trained in this particular art, but a physician, a GP. By and large, I suppose again expediency dictates. You have to take him to somebody in a hurry I suppose. But you may as well take him in many instances to the local clergyman. You may as well take him even to the local lawyer, bless his soul. He’s got as much competence with respect to the very thing we’re talking about as the average physician has. At least in my opinion, he has. These doctors are no better equipped than anybody else.

So when you are revamping legislation perhaps an eye should be given to a somewhat broader range of at least qualified people in the community who are not necessarily allied to a physician.

Many people who have no medical training whatsoever -- and this comes up into your Psychology Act -- are far better equipped, in terms of empathy and pure human understanding and by natural gifts, to deal with mentally ill people as any doctor trained to look after some insipid liver. I use the word liver in a double sense.

Mr. T. P. Reid: Which are fairly important in themselves.

Mr. Lawlor: Or maybe too profligate a liver, depending on how you want to deal with him. It is a point worthy of being taken into consideration. I wish you would.

Mr. T. P. Reid: They used to hang punsters in the 19th century, around John Mill’s time.

Mr. Lawlor: One of the other members mentioned the grossness of the legislation in terms of its attention to the physical or external aspects of mental illness. It will certainly have to stand revision before very long. The real dangers of mental illness are not these overt matters at all. It is in the increasingly psychotic state into which people fall.

Mr. G. Taylor: Patrick, if you don’t say anything they will surely not know it.


Mr. Lawlor: The declensions from states of mild neuroses down to a really catatonic condition are all along a graph. There are not differences in kind, there are differences in degrees, and one falls if there isn’t proper attention paid. The individual tends to decline or relax more and more into perhaps schizophrenic, certainly more withdrawn conditions all the way along the line, which is a condition that you and I and particularly the Minister of Health are most jealous to prevent. That is the kind of thing. But nothing of it is taken account of, the internal psychical damage and harm taking place, within the terms of your legislation at all. It simply does not take that into account. The furthest you go is speaking of a third criterion -- apart from self-damage and damage to others -- of a lack of competence. I suppose the states which I describe would be symptomized in certain lacks of competence in a business way or in a way of dealing with other human beings and which might qualify within the definition that you have.

But you repeat, time after time, with constables, with JPs, with the ordinary initial confinements by a physician and subsequently on the review process, the three, I call them gross or obvious categories. Of course they have to be there, but I think that you can do a little better than that, particularly on the review requirements.

As to the review requirements, that board of review, may I caution you -- it’s under section 27 of the extant Act -- but you’ve retained it and defined it somewhat, and again set up your terms of guidance for this board. I don’t know what the present situation is on these boards, but there must be a psychiatrist, there must be a solicitor or a barrister or lawyer on the board, and then some other person appointed by the Lieutenant Governor. Three could constitute a quorum. Sometimes it’s three, sometimes it’s five.

None of those individuals -- the psychiatrist or physician or psychologist involved on that review board -- must be totally independent, although I trust they are, of the mental hospital or the confining facility, as must anyone on that board be of government. In order to give the full weight to the civil liberties aspects of these things, this board must be autonomous and totally at arm’s length with everybody else. This is the last barricade or defender of the basic liberties here, the last forum to which one can turn against physicians who tend to be self-protective.

Once they have confined an individual they are hardly going to make a change; except under their own voluntary release power, but their tendency if questioned would be self-serving of course. They will say, “Yes they are confined, and they will continue to be confined for very good reasons, because I think they are a danger. I think they are mentally ill.”

We all, in this House, are now exquisitely aware of what happens in Soviet Russia and the use of asylums and state institutions for the perfectly sane, but slightly seditious, to fall under the surveillance of this new form of human slavery. And we are not above it. Our laws are there to forfend against that possibility. To the extent that this law does that -- and again it can be investigated more deeply in committee -- then all to the good.

The final thing I would mention would be the whole of the law of habeas corpus. It’s been with us for a thousand years. It is the last buttress of our liberty. Habeas corpus, where a person in any form of confinement, may take a matter to a superior court and ask for a review under proper affidavit or other viva voce testimony to justify their keeping him there.

I would take it that the legislation says nothing about it. I would like to see a clause inserted in some point in the legislation specifically preserving the rights of habeas corpus. It may be that the minister would argue that he doesn’t feel that is necessary, that’s there anyhow. It runs parallel with this kind of legislation, in no way does the legislation, although it lays down mandatory periods of time, supersede that more basic and fundamental liberty or right. Maybe; I don’t know what supersedes what any more, I’ve lost all track of these things. Therefore, as an extra defence mechanism, it wouldn’t do any harm, let’s put it this way, to put that into the legislation.

Those are the basic concepts as I see them. It’s good legislation as far as it goes. It stops somewhat short. Perhaps the minister can broaden it out and give it even more efficacy than it has.

Mrs. Campbell: I am pleased to rise to enter the debate with reference to this bill. I must say, having been so bitterly disillusioned by some of the performances of this ministry in the last two days, it is at least good to be able to stand here in support of this bill.

It is often difficult, I think, for a member of my profession, as a lawyer, to view any medical bill or any bill involving the medical profession without a great deal of soul-searching, because the tradition between the two professions creates a profound difference in approach.

I suppose that is of necessity. It goes back, in my experience, to the day when Dr. Gallie was at the head of the medical profession and Chief Justice McRuer was his opposite number in the legal profession. Their dialogues were very significant and, I think, indicated very clearly the different approaches between the two professions. In the case of Dr. Gallie, I can recall his statement at a dinner involving the medical-legal society to which I belonged in those days. Dr. Gallie’s opinion was that any doctor who would give evidence against another doctor in a malpractice suit was a pariah.

I suppose this attitude has a profound effect on any of us as we view a bill of this kind. I say this because I think it is important to understand that, so far as I’m concerned, it has therefore caused me perhaps more soul-searching than it might others who didn’t start off with this basic and inherent problem.

I have read very carefully the submissions to me by the medical profession, as I have also read the submissions to me by members of the public who have urged upon me support of this legislation. I suppose also because I’m a lawyer I may be one of those comparatively few members in this House who have seen the abuses of the present system. I think there is no doubt in the mind of anyone that if one sees a person who has been virtually seized and held incommunicado, one has a great concern about rights. This, of course, has been going on; I have seen cases of this kind myself.

I must say that in the early letters to me from the medical profession, I was rather disturbed because it seemed that the thrust of their particular position was that it would be inconvenient to doctors, they would find it difficult to sort out their schedules. Particularly, both doctors and hospitals would find it difficult if someone were committed, if you like, over a weekend. I had to search my own thinking and say when it comes down to a question of the convenience of a doctor or the hospital and the civil rights of the human being, I had to come down on the side of civil rights.

However, latterly there have been some submissions made by the medical profession to me which have caused me great concern, because I think there is certainly some validity in their concerns that perhaps some of those who may be in deep trouble and may be of deep concern to their families may not have the type of service that they perhaps ought to have within the meaning of this bill. I think this is something that ought to be sorted out at the committee. It seems to me that the purport of the bill is not to cut back on assistance of a psychiatric nature to those in need of that kind of service. I hope that the medical profession will come before that committee and make their point. I, for one, sitting in if I am able to do so, will be most interested to hear the course of that debate and that discussion.

There are other matters in the bill which I feel should have further exploration, as I have said in the past. I don’t think that just because it is a government bill that it is necessarily perfect. But I do want to commend the minister on the thrust of this bill in general terms and the coming to grips with what I see as a problem, particularly in the Metropolitan Toronto area. Some of my colleagues, I am sure, have some concerns about the time sequences, particularly as they come from areas far from Toronto, where they feel that perhaps the provisions of 72 hours and other such similar provisions may not be as realistic as they seem to be to us in this city in this area. I hope that too will be given ample consideration when the matter goes to committee.

At a time in our society when there are many people who are free to roam, many very violent people who are not found to be in any psychiatric or other such need, it seems to me we have to guard the rights of the individual very closely and very carefully. It is always a difficult thing for me personally coming to grips with a matter which is essentially that of another profession, because I am very conscious of the fact that I do not want to make mistakes which could have a very severe effect upon members of the public.


But, at this point in time, having had the opportunity to discuss the matter with both of our members of the psychiatric profession in the House and having the benefit of their support of this bill, it makes it very much easier for me, and I’m appreciative of the opportunity for such discussion. May it get to the committee and may we have the input that we need from both the public and the profession and, hopefully, produce a bill which in the final analysis will be a bill which is highly protective of the civil rights of people in our community whilst still protecting those who need the protection of the medical profession.

Mr. McClellan: I’m happy to take part in this debate on second reading.

Mr. Lawlor: You insisted.

Mr. McClellan: Yes, I was asked to speak on the bill.

Mr. Foulds: By popular demand.

Mr. McClellan: By popular demand. I’m pleased to speak in support of a bill, which after all does embody many of the things we have been arguing for in this caucus for many years and which were put forward most recently by the member for Parkdale (Mr. Dukszta) in his private member’s bill.

Mr. Lawlor: Is it all right to heckle you?

Mr. McClellan: Yes, it is. Feel free to heckle me. A useful way of addressing this bill in the debate on principle is within the overall context of social development policy. We have been arguing with respect to other ministries and with respect to the Ministry of Health against institutional incarceration as a mode of treating people. What this signifies to me, and I think to all of us in this caucus, is that the Ministry of Health is edging away, moving away slowly, as the Ministry of Community and Social Services is moving away slowly, from the traditional, historical reliance on institutional incarceration as a way of dealing with certain categories of people towards more humane, comprehensive, community-based treatment and care systems.

We still have an awful long way to go. When the history of western industrial capitalism is written in 400 or 500 years, I suspect its worst crime will be seen to be the way it dealt with marginal people, with people who were not able to fit themselves into the iron disciplines required of the assembly line of the rigidities of capitalist production. The way that we in our society have handled these kinds of people, whether they’re the aged, the retired or the mentally ill or single-parent people or enormous numbers of people who are surplus to capitalist production, has been to put them into institutions, to incarcerate them. We have done this as well with the mentally ill as with other groups of so-called surplus people, surplus to the needs of capitalist production. We are still locked into that modality with respect to treating the mentally ill. When people become subject to so-called mental illness, our normal instinct has been to lock them up.

I can remember in 1973 I joined in a small and unsuccessful coalition with the member for Parkdale (Mr. Dukszta). I think it was called Mental Health Tomorrow. We were trying to argue against the construction of additional high-rise towers on the site of 999 Queen Street. I am one who applauded publicly the Minister of Government Services (Mrs. Scrivener) when she knocked down the lunatic asylum. I believe I volunteered to man the wrecking ball if she would let me. I still have a brick from that building in my office.

Hon. Mr. Timbrell: I think she had a different relationship to the ball.

Mr. McClellan: We won’t go into that.

It was a useful move just to knock that blank-blank place down. It was very unfortunate that the government then proceeded to replace that historic jail -- that’s what it was -- by a new set of institutional structures which, it seems to us, simply reinforced the institutional base of mental health treatment rather than to develop other kinds of mental health care which don’t rely on institutionalization or incarceration.

Nevertheless, this bill represents a major move away from our historic reliance on institutional incarceration for the mentally ill. To that extent, it is a major step forward. I support the definition as it stands. I am open to listening to the testimony in committee -- and I am sure we will get a great deal of it -- around why the definition should be tightened. But I think I said when we debated the member for Parkdale’s bill that while society does have the right for its own protection to deny people their freedom, that loss of freedom which society exacts must be hedged in by laws and circumscribed most narrowly. I think myself that this definition is as broad as we want to go. As I said, I am open to other views, but I am comfortable with the definition as it stands now.

I think as well that the time period is adequate as redefined by the minister. Again, I am open to testimony from people who will be appearing before our committee, but it may well be that 72 hours was too short a time and that five days is not an unnecessarily long time. We will try to keep an open mind on that issue as well.

We still have a long way to go. The member for Parkdale talked about the class basis of mental health care, saying that it is the rich in our society who receive the intensive, one-to-one, personal mental health treatment, usually outside of institutions, and by and large it is low-income people -- people who in many respects are marginal to our economy; people who are moving in and out of the labour force, underemployed, semi-employed, unemployed people -- who constitute in the main the population of provincial institutions and who are the main victims of involuntary incarceration. That is the historical fact of which I spoke and it is still with us today.

The most recent figures I am aware of are for 1968, I believe, and the volume of involuntary incarcerations was something between 7,000 and 8,000 for the province of Ontario. I would be interested to have from the minister, either now or when we go into committee --

Hon. Mr. Timbrell: Mr. Speaker, this is the second time the point has been raised. It might be worthwhile putting on the record now that in 1977, of approximately 13,000 admissions to provincial psychiatric hospitals, there were 3,400 involuntary admissions.

Mr. McClellan: Progress does get made. That’s useful to know. There is still much to do and a long way to go. We still rely far too much on institutional care in the treatment of the mentally ill, as we do in the treatment of the mentally retarded, as we do with senior citizens, as we do with a number of other people who cannot accommodate themselves easily into the rigid demands of our kind of economy.

I won’t digress tangentially too far. Leave it to say that we support the bill as a major step forward. We expect to see the bill, inasmuch as it reflects an anti-institutional bias, matched with anti-institutional programming with respect to mental health care. That will be the test of the ministry’s intentions. That will be the acid test -- not the passage of some legislation which purports to give civil rights in the abstract.

It goes back to what the member for St. George (Mrs. Campbell) was saying. It is not a question of giving civil rights in the abstract to the mentally ill, it is a question of providing mental health care and mental health treatment to the mentally ill outside of institutions and outside of the historic requirements of incarceration. That will be the minister’s task to achieve. That will be the task of his government to achieve. The law is simply an interesting abstraction, apart from the provision of adequate community-based non-institutional and non-compulsory mental health care. The minister will be judged not on the words on this paper, but on the programs which he develops and on the programs which he provides.

Mr. T. P. Reid: It is with some trepidation that I rise to take part in this debate, for a number of reasons. If my recollection of history serves me right, the site on which the legislative chamber sits was the site of an earlier -- in those days they called it an “insane asylum.”

Hon. Mr. Timbrell: Some would say the use hasn’t changed.

Mr. T. P. Reid: There are those who would not only say that the use has not changed, but I would say this afternoon’s histrionics, if I may use that word, were liable to underscore that fact.

Probably one of the more famous quotes that have come out of this Legislature -- it was before my time and I am sure before the member for Lakeshore’s (Mr. Lawlor) time -- was when Mitch Hepburn was having his running feud with the federal Liberals in Ottawa, Mackenzie King in particular, during the war. One of his more quotable quotes, if I recall correctly, was that the federal House of Commons was an insane asylum which was being run by the inmates. Some times, again this afternoon, might indicate that.

As I said, it is with some trepidation that I rise to speak on this bill, particularly after having listened to the member for Lakeshore and his definition of what mental health was. I am one of those, few in number no doubt, who have some trouble following the mental peregrinations of the member for Lakeshore, not to say mental absurdities. If I understood him correctly, his definition of mental health was, if you boiled it down, anyone who thinks he is mentally healthy is really very sick.

Mr. Lewis: That is an excellent definition, Patrick.

Mr. Lawlor: Where do you fit in? Do you think you are healthy or do you think you are sick? You are caught no matter which way you go.


Mr. T. P. Reid: Obviously after listening to the member for Lakeshore, nobody is going to accuse him of thinking that he is mentally healthy.

After listening to the member for Lakeshore and other speakers I will address myself to the particular matter in the bill of the involuntary incarceration -- to use my friend’s word -- of 72 hours. It seems to me that that is not adequate. But sometimes, although in the last few years it has changed somewhat we are incarcerated in this place for periods sometimes of three and a half to four years, Mr. Speaker, and everybody complains about that, it seems; particularly those, if I may say so, on the outside.

Mr. Lawlor: Some of us even longer.

Mr. T. P. Reid: There’s an interesting point that I’d just like to have on the record, as my friend again from Lakeshore would say, for the historical record in perspective. I would say that when the Liberal caucus discussed this bill, it was interesting the almost commonality of the experiences the individual members had had in dealing with the situation we are trying to deal with in this bill.

I recall personally some years ago someone in the social welfare field coming to see me. It touched me very deeply at the time because he was a very rabid Tory. He came to me and said he had been out to see someone who had been referred to him and that this particular person he had visited to offer assistance to had threatened my informant that when he next saw Pat Reid he was going to break his back -- not that he was going to shoot me or anything like that, but that in fact he was going to break my back. He went on to say that this particular person, when he went into his house, had a 30.30 Winchester rifle leaning up against the window which looked out upon the driveway on which this person had come up.

As I say, I think most of us as members of the Legislature have had this experience that our lives have been threatened one way or another by people who are mentally ill because of the authority, supposedly, that rests in us as members of the Legislature. In my particular case I didn’t know the gentleman nor would I know him if he walked into the chamber tonight.

It’s also interesting to note that this legislative building in itself seems to attract a number of mentally ill people because they look upon this as the place where they can come to have their problems, as they see them, resolved. This is unfortunate and I think we’re fortunate that nothing untoward has happened here.

I want to refer particularly to the two matters that have already been touched upon. One is the 72 hours for the involuntary patient. I would just reiterate what people on all sides have said, that in northern Ontario and certain rural areas, there just is not the personnel available to make it at all realistic to have a second opinion within a 72-hour period. In fact, from some parts of my riding it’s a day’s journey to get someone to the Lakehead Psychiatric Hospital, depending on the area you’re in in my riding. To get somebody there and to go through the process would almost be impossible. I would suggest that 30 days is perhaps too much, but certainly 72 hours is too little. So I would recommend to the minister that he expand the time available for the second opinion, to expand the 72-hour time.

There has also been some concern about the somewhat stricter definition under the Act of people who are suffering from a mental disorder. Not being a lawyer I find that perhaps on second and third readings the bill is wide enough to accommodate most of the concerns that have been expressed by people. But the concern still exists that those people who have mental illness or mental disorder not only affect themselves or other people in a safety sense, but they can also wreak psychological and economic harm as well.

I’m sure the minister has had countless repetitions of people who have sold the family farm, or the family house or the belongings in the house, or the car or whatever, or run up debts that they would not otherwise do or caused psychological embarrassment or trauma to other people within the family and community. I would think that particular aspect might be reviewed in the committee of the whole House.

I have just one other comment to make. I have some concern about the provisions relating to justices of the peace. I appreciate the fact that some of these occasions take place when an ordinary provincial court judge is not available to sign an order for an involuntary incarceration. However, I’m frightened somewhat that the justices of the peace may not have the depth of background, the depth of legal knowledge and certainly not the depth of medical knowledge to be able to make those kinds of decisions whether or not these people should be involuntarily incarcerated. I would raise that particular matter with the minister and await his reply as to whether he thinks that that competence, legally or otherwise, should reside in justices of the peace.

We’re faced in this particular bill, as has been outlined by other speakers before me, with the classical balancing act between the civil liberties of the individual as opposed to the community at large and its safety and protection. There is no easy answer to this and I’m not sure the bill solves all the problems in this regard. How do you protect the rights of the individual, his feelings, his emotions, his thoughts and his whole psychological well-being in a society in which obviously we can’t even define very closely or very narrowly what constitutes a mental disorder, as opposed to the health, safety and mental well-being of the rest of the community?

I’m not sure there is any easy answer, but I would hope the minister would consider in committee the representations made to him by myself and others that the rights of the individual be balanced against those of society and that possibly he err on the side of the individual to ensure that not any worse psychological damage be done to the individual because of the involuntary nature of his being put into an institution.

Mr. Lewis: I will speak very briefly because I think the minister wants to complete second reading tonight, although obviously there may be others who wish to get into the debate. There were two things which prompted me to intervene. One is quite self-indulgent. I rise in support of the bill, obviously. I’d also like to pay tribute to a colleague, which isn’t done often enough in this House but, in my own period of aging dotage, that is now permitted.

I want to say that the member for Parkdale (Mr. Dukszta) in a quite singular and fascinating way laid much of the groundwork for this bill. I don’t pretend and he wouldn’t pretend that he drafted the substance of it. In the way these things evolve in this Legislature, in the number of speeches which the member for Parkdale made, the private member’s bills that he dealt with and the way in which he stood in such an unorthodox and often courageous fashion against the conventional wisdom of his own fellow practitioners seem to me to have given us the basis for what we’re doing tonight.

Mr. Samis: Let’s hear it from the Tories.

Mr. Conway: Is that why his leader demoted him?

Mr. Lewis: He’s an unusual fellow. I will not discuss his eccentricities but only his enormous attributes. For those in this Legislature who were not privy to the kind of therapeutic and experimental innovative unit that the member for Parkdale ran at the Queen Street Mental Health Centre, and the quite fascinating deeds he worked with many of the people who were involved, I really think it is a touch of history in Ontario which should be acknowledged.

Like a great many others I have vacillated too -- like others in my caucus, like those who have spoken here tonight -- about the two controversial sections, the definition section and the 72-hour section. I was influenced a great deal by a number of letters from medical practitioners -- influenced by some of the arguments they made. But you know, Mr. Speaker, I am inclined now, not pretending to understand it completely, to live comfortably with the definition section as it exists.

One of the things I have been asking myself as I read the letters from the psychiatrists in particular, more and more of them, is what did they do under the broad definition of safety before? I must say I feel a little disconcerted by the implication, because some of the arguments that are being made now against this more explicit clause make me a little uneasy about the practices that preceded it. I therefore feel the clause as the minister has laid it out is a pretty good clause and will ensure appropriate balance that all of us would wish to achieve.

As a matter of fact, I think I would even go further. I would even suggest -- and maybe it could be discussed in committee when we are examining section 5 -- that the use of the word “imminent” might be inserted additionally in a couple of other subclasses or subsections in order to provide yet further assurance that no one is inappropriately incarcerated.

But I want to point out what the minister himself said in response to my colleague from Bellwoods (Mr. McClellan) tonight. What the minister said is that in the year 1977 something in excess of 26 per cent of those in the mental hospital system were involuntary admissions -- more than 26 per cent. That is a figure which gives pause. That is a figure which makes me feel, and the rest of us feel, I think, that we would like to have pretty certain security in the clauses of the bill that every such involuntary admission was absolutely legitimized.

Mr. McClellan: Was it 38 per cent?

Mr. Lewis: Well, it was 3,400 of 13,000 which, with the greatest of respect to every mathematician here, cannot be 38 per cent. And if 3,400 of 13,000 is 38 per cent, you had better turn in your electronic computer.

Mr. Van Horne: Just give it to me again.


Mr. Lewis: As I said, Mr. Speaker, despite the intervention -- alas, again inaccurate -- from a member of the Liberal Party, it’s slightly over 26 per cent. Now let me leave that, I want to end.

Mr. Ruston: Did you research that one?

Mr. Lewis: The other aspect I wanted to mention was to corroborate or reinforce what my colleague from Lakeshore has said; let us not leap too quickly into the five days.


Mr. Lewis: I can’t stand this, Mr. Speaker.

Mr. Van Horne: Neither can I.

Mr. Lewis: This fellow from London North puts into my hands an electronic device which purports to say that 3,400 as a percentage of 13,000 is 38 per cent.

Mr. Laughren: Not possible.

Mr. Lewis: What’s wrong with him? Mr. Speaker, I want to tell you we were better off with Marvin Shore. He may have been a Liberal. He may have been a Tory.

Mr. Van Horne: Who knows?

Mr. Lewis: But at least he could add, subtract, multiply and divide. This member should resign.

Mr. Nixon: At least he was a socialist.

Mr. Lewis: I want to come to the last --


Mr. Lewis: I don’t believe this pertinacity.

Please don’t leap into the five days. it is true, as the member for Rainy River (Mr. T. P. Reid) and the member for Renfrew North (Mr. Conway) said, that the business of outlying areas and hinterlands makes it awkward. I saw a number of arguments suggesting it was awkward because the three days might encompass a weekend and I am a little anxious about sacrificing the civil libertarian ideal for the facilitating of scheduling in a hospital. I would worry about that. So let’s hear the submissions that are made to the committee.


Mr. Nixon: Most of the psychiatrists we know are free on the weekends.

Mr. Lewis: Maybe we can re-employ them then. I remember back to the adage which was often used in Ontario about pennies for the mind. I was here in those days when that was a clarion call in the Legislature as we were trying to revamp mental health facilities across the province. I therefore simply want to affirm what my colleague from Bellwoods put: This bill is an important step forward. We congratulate the minister for introducing it. Much of it is courageous, albeit borrowed without sufficient recognition from the member for Parkdale.

Mr. Nixon: The Minister of Education (Mr. Wells) verifies that it is 38 per cent.

Mr. Van Horne: Stephen flunked mathematics.

Mr. Lewis: But what is terribly important is that the facilities are changed as well as the legislation itself, and that will be the test.

Mr. Nixon: What percentage do you think it is, Stephen?

Mr. Lewis: Now, can I invite the member for London North to engage in a public self-immolation once again by another little recital of percentages? Will he not give up?

Mr. Nixon: Why should he give up when he is right?

Mr. Lewis: What is his profession?

Mr. Van Horne: Politician of the official opposition; and I would invite the hon. member to try his very hardest to work a very simple machine --

Hon. Mr. Timbrell: Can I respond tonight?

Mr. Van Horne: -- which would show that it is in fact --

Mr. Foulds: Mr. Speaker?

Mr. Ruston: Order.

Mr. Acting Speaker: Which one of the gentlemen standing would like to move the adjournment of this debate?

Mr. Lewis: Mr. Speaker, I would like the member for London North to stake his seat on it.

Mr. Van Horne: To stake my what?

Mr. Nixon: That is, if you will stake yours. I understand you are not running again.

Hon. Mr. Timbrell: Mr. Speaker, in the very brief time left --

Mr. Acting Speaker: Order. Are there any other members who wish to engage in the debate? The hon. member for Kitchener-Wilmot.

Mr. Sweeney: Are we finished?

Hon. Mr. Timbrell: I thought so.

Mr. Acting Speaker: For the purpose of adjourning the debate.

Mr. Sweeney: No, I’m not going to adjourn the debate, Mr. Speaker.

Mr. Acting Speaker: Well, I’m going to leave the chair.

Mr. Sweeney: Okay, I’m sorry; I’ll pass.

Mr. Lewis: On a point of privilege, if we are going to continue this --

Mr. Sweeney: No, let him finish.

Mr. Lewis: Are we continuing this?

An hon. Member: No.

Hon. Mr. Timbrell: Mr. Speaker, with --

On motion by Mr. Nixon, the debate was adjourned.

Mr. Breaugh: Couldn’t the Liberals do something right during the course of the day?

Mr. Lewis: On a point of privilege, if you would be seated for a moment, Mr. Speaker; I’m on my feet.

Mr. Nixon: You don’t even know which button to push.

Mr. Lewis: I don’t even know which button to push. Could I beg the indulgence of the Chair? Would you, Mr. Speaker, prior to Thursday’s session, find out what percentage of 13,000 is represented by 3,400?

Mr. Acting Speaker: I would think not. There are enough academics in this room that they can argue it out among themselves.

Mr. Nixon: The Minister of Education will provide it.

Mr. Ruston: No wonder we’ve got problems.

On motion by Hon. Mr. Timbrell, the House adjourned at 10:33 p.m.