By Marvin Ross
The British Columbia Mental Health Act is being challenged by disability rights groups who object to some psychiatric patients not having the right to decide if they get treated or not. Consequently, they have begun a court challenge based on the Canadian Charter of Rights and Freedoms to have that part of the act rescinded.
The ability to treat people when they need it is a key feature of the BC Act and one of the reasons the BC Act is the best in Canada. Ontario allows involuntary patients to decide if they want treatment which has resulted in patients remaining locked up and their health deteriorating for, at times, years, when they could have been treated and released.
What follows is my support for the present act. If you have any experiences with delayed treatment, please let me know. Here is my letter.
Dear Premier and Ministers of Health, Mental Health and Addictions and the Attorney General
I am writing to you as an Ontario advocate for the mentally ill who holds the BC Mental Health Act as one that Ontario should emulate. It concerns me greatly that you are facing a charter challenge to allow involuntary patients to refuse treatment (Maclaren v. AG). This would turn your sensible Act into something similar to the very deficient Ontario act. Allow me to explain.
I am a medical writer/publisher and the author of three books on schizophrenia. I also wrote a regular blog on mental illness for Huffington Post from 2011 to 2018, and I also write a blog with a psychiatrist on mental illness and have since 2014. My Huffington Post blog had numerous followers and my current blog is rated in the top 100 blogs, websites on mental illness worldwide.
Through my publishing company I am reasonably familiar with the BC Mental Health Act and systems. Five of my authors are from BC. Susan Inman in Vancouver is the author of After Her Brain Broke; Sandra Yuen Mackay of Vancouver wrote My Schizophrenic Life was given the Courage to Come Back Award from Vancouver Coastal Health and was one of the five faces of mental illness in Canada; Erin Hawkes-Emiru wrote When Quietness Came (see below) and her newest When Neurons Tell Stories. She is also a Courage to Come Back Winner; Marion Gibson of Victoria wrote Unfaithful Mind and Lembi Buchanan of Victoria did the e-book called The Emergence of the Recovery Movement.
As a parent, I became involved with schizophrenia advocacy because I have a son with schizophrenia. My advocacy on his behalf has been extensive because of the many deficiencies of mental illness care in Ontario. Like many family members, helping a relative in the system can become almost a full time job. And like many family members, the personal advocacy led to public advocacy. I became chair of the Hamilton Chapter of the Schizophrenia Society of Ontario and then a member of the provincial board. I was also on the executive of the Hamilton Program for Schizophrenia.
As part of my advocacy, I was one of 238 individuals who made a presentation to the Ontario legislature’s all party members Select Committee on Mental Health whose report was released in 2010. As you know, Ontario can commit someone to a psychiatric facility involuntarily, but that person then has the right to refuse treatment. But the Select Committee wants to change that (more below).
As I’m sure you will agree, that makes no sense. If someone is committed to a secure residential facility in order to treat a severe mental illness that, untreated, will cause serious harm to the person or others then surely the person deserves treatment. But treatment can be refused in Ontario now. I understand that so called “rights” groups want treatment refusal to also happen in BC.
In Ontario, and in BC if the Charter challenge to your Act is successful, necessary treatment can be refused if the person is capable of consenting to treatment (e.g. Prof Starson refused and was detained for 7 years); or an incapable person’s substitute decision maker must refuse if the person had a made a wish not to be treated when they were capable (e.g. Mr Sevels – 404 days in seclusion); or the substitute decision maker refuses. This simply prolongs suffering and creates serious problems for the person, staff and family.
May I refer you to Treatment Delayed Liberty Denied which appeared in the Canadian Bar Review Volume 87 by Robert Solomon, Richard O’Reilly, John Gray and Martina Nikolic. That paper has an excellent description of the issues with examples of people who have spent up to 25 years incarcerated when they could have been treated and discharged in a short period.
The horrors for patients, staff and families detailed in this paper are illustrated by Mr Sevels. This man when capable expressed a wish not to be treated. His substitute decision maker, the Public Guardian and Trustee, had to refuse treatment under Ontario law. The consequences were that Mr Sevel’s dangerous behaviour forced staff to seclude him for 404 days. He had a total of 5 years detention because he could not be treated. He only was treated when he severely injured a staff person. He responded well to the treatment he had refused for 5 years. The cost in suffering, staff injuries, extra staffing and lost liberty and dignity rights for Mr Sevels is not worthy of a civilized province. Please do not let that happen in BC by adopting Ontario’s laws.
The other excellent description of this issue can be found in chapter seven Psychiatric Treatment Authorization and Refusal in the book Canadian Mental Health Law and Policy by Gray, Shone and Liddle. The chapter shows that untreated involuntary patients have much longer periods of detention, continue to suffer symptoms, assault nurses and fellow patients, have worse long term prognoses and turn health care workers into jailers.
An example is a patient of Dr O’Reilly’s who could not be treated for two years waiting for a Supreme Court of Canada hearing. During the nearly two years that the patient was detained and not treated, he remained extremely paranoid and uncooperative. He threatened his wife and assaulted her once, causing her to fear for her life and to change residence. The Supreme Court of Canada dismissed the leave for appeal. When permission to treat was finally received from the court, it took over three months to get him well enough to leave the hospital. Dr, O’Reilly reported: …” the patient signed a living will, in which he requested that, if he ever became ill again, he be given prompt treatment with medication so as to “avoid wasting my time with a lengthy hospitalization due to my inability to decide on being treated”.
The Right Honourable Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, in a speech she gave in February 2005 outlined the moral dilemma facing those who believe that involuntary patients who have not consented to admission like all other medical patients should be allowed to refuse the treatment necessary to restore their liberty, health, autonomy and other human rights.
“Once again, the competing values of autonomy, treatment and protection are at play and the law in different provinces has adopted distinct approaches to deal with these issues. Forced treatment of a capable patient raises serious concerns with respect to liberty, physical integrity and equality. As the majority noted in Starson, “The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy”. Similarly, in Fleming v. Reid, Justice Robins of the Ontario Court of Appeal wrote that “Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs”. In the case of a mentally ill person who understands all relevant treatment information, as well as the benefits and risks of treatment, yet nevertheless refuses to consent, the interference with autonomy is great indeed.
On the other hand stands the argument that not treating severely mentally ill persons on account of their refusal to consent represents a particularly impoverished understanding of their rights and civil liberties. It assumes that the “formal” autonomy rights of persons whose will and understanding are seriously impaired by illness should be preferred to their substantive freedom and to other fundamental rights and freedoms that continued mental illness denies them. Failure to treat may well result in permanent impairment of their right to be free from physical detention and their right to have a mind free from debilitating delusions, terrifying hallucinations and irrational thoughts. Although respecting a mentally ill person’s decision to refuse treatment formally accords them equal treatment with non-mentally ill patients, abandoning such people to the torments of their illness, mental and physical deterioration, substance abuse and perhaps suicide surely does not respect their inherent dignity as human beings the argument concludes.”
One of the best defences of immediate treatment was written by Herschel Hardin, a BC Civil Libertarian and father of someone with schizophrenia in the Vancouver Sun, July 22, 1993. He wrote:
“Civil Liberties, after all, are a fundamental part of our democratic society. The rhetoric and lobbying results in legislative obstacles to timely and adequate treatment, and the psychiatric community is cowed by the anti-treatment climate produced. Here is the Kafkaesque irony: Far from respecting civil liberties, legal obstacles to treatment limit or destroy the liberty of the person. The best example concerns schizophrenia.”
Mr Hardin also wrote that:
“Clinical evidence has now indicated that allowing schizophrenia to progress to a psychotic break lowers the possible level of future recovery, and subsequent psychotic breaks lower that level further – in other words, the cost of withholding treatment is permanent damage. Meanwhile, bureaucratic road-blocks, such as time consuming judicial hearings, are passed off under the cloak of “due process” – as if the illness were a crime with which one is being charged and hospitalization for treatment is punishment. Such cumbersome restraints ignore the existing adequate safeguards – the requirement for two independent assessments and a review panel to check against over-long stays. How can such degradation and death — so much inhumanity — be justified in the name of civil liberties? It cannot. The opposition to involuntary committal and treatment betrays profound misunderstanding of the principle of civil liberties. Medication can free victims from their illness — free them from the Bastille of their psychosis — and restore their dignity, their free will and the meaningful exercise of their liberties.”
I mentioned my author, Erin Hawkes (now Hawkes-Emiru as she is married and the mother of a daughter). Erin is a neuroscientist, an author of two books, a peer counsellor in Vancouver, and she lectures to medical staff on mental illness. Erin was hospitalized about 14 times mostly against her will and often dragged to hospital by police or paramedics. Finally, an anti-psychotic was found that quelled her delusions and, in 2012, she wrote an op ed in the National Post called Forced Medication Saved My Life. This is what Erin has to say:
“Being involuntarily hospitalized and medicated against my will saved me from my suicidal self. The voices and deep meaning were silenced with mere little pills. Once stable, I could continue in recovery with psychotherapy and metacognitive training, having learned — the hard way — the positive power of anti-psychotic medication.
I now hear people lobbying for the end of involuntary treatment for people such as myself who suffer from a severe mental illness. It is a personal journey, they say, and everyone should be free to reject hospitalization and medication. It is a right, they say, to be ill; even, that there is no such thing as being “ill.”
So should I have had the right to refuse life-saving treatment? Would I have had a better life if I had not been admitted into a safe place and medicated toward death-defying insight? I am certain beyond a doubt that had I not been treated, I would have succeeded in suicide, joining the 10% of people with schizophrenia who kill themselves.
The right to live supersedes the “right” to not be involuntarily treated for mental illness. Those who are suicidal when ill but want to live when not, should have the safety of having another person decide to give us the chance to return to our lives and be well.”
Involuntary patients found Not Criminally Responsible on Account of Mental Disorder have a much higher rate of treatment refusal than civil patients. This should be a concern to BC. Treatment refusal for these dangerous patients means that more staff and other patients are assaulted, suffering continues and more are secluded and restrained. Untreated patients are detained longer in Ontario. In Ontario “Professor Starson” refused for 7 years and was only treated after he nearly died from delusionally caused starvation. Mr Conway has spent 25 years detained because he is untreated. That will probably happen if BC allows treatment refusal.
A recent example of treatment refusal in Ontario forensic system where Mr Ducharme with a serious but treatable illness is delaying treatment and prolonging incarceration by making multiple appeals. This could not happen under the current BC Act since you do not allow treatment refusal. This article from the National Post earlier this year details a number of other Ontario cases that might be helpful for your staff to examine.
The very important Ontario all-party Select Committee on Mental Health and Addictions spent 18 months and heard 238 witnesses concerned about the system and mental health legislation. The Vice Chair of the Committee is the current Minister of Health, Christine Elliot. In the report, the BC’s act is held out as a standard that should be emulated.
On Page 15 of the report, they state:
“The Select Committee was particularly impressed by British Columbia’s mental health legislation. Similarly, we understand that countries such as Norway and the Netherlands, generally regarded as societies with an advanced understanding of individual rights and high standards for mental health care, have a lower threshold than the risk of serious physical harm for involuntary admission and treatment.”
The Select Committee understood that changes to how Ontario managed involuntary committal and treatments needed to change and to look more like that of BC’s. After my own testimony, I received a call from one of the committee researchers asking me for sources. She mentioned that the members liked what I had to say but that they were hesitant about recommending changes in involuntary status for fear of the outcry from the civil libertarians. I will say more of this below.
In my own testimony to the committee on Sept 8, 2009 , I said:
“Most opponents of compulsory treatment cite John Stuart Mill’s On Liberty. Mill said, “That 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.” When Mill wrote that, there were very few medical treatments for anything, let alone psychiatric disorders.
But Dr. Richard O’Reilly, a psychiatrist in London, Ontario, and the former president of the Ontario Psychiatric Association, points out that Mill also said in the very next paragraph: “Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against” personal “injury.”
We do that for the elderly with severe dementia and Alzheimer’s. We do not allow granny to refuse treatment for her dementia and to live in a refrigerator box outside, so why do we do that for young people with schizophrenia? It is cruel and inhumane for any caring society such as ours to allow people who are sick to remain sick.”
What the final report of the Select Committee stated is this:
“After long and careful consideration, the Select Committee does not believe that it has the legal expertise to propose specific amendments to Ontario’s mental health legislation. However, the Select Committee is certain of the outcomes that are necessary to address the excessive and unnecessary suffering permitted under our current legislation:
• Involuntary admission criteria must be interpreted or altered to include serious harms that are not merely physical.
• Involuntary admission must also entail treatment.
The Select Committee has been advised that various legislative or policy changes could produce these desired results.
The Select Committee therefore recommends 21.
The Ministry of Health and Long-Term Care should create a task force, incorporating adequate representation from, among others, mental health clients and their caregivers as well as mental health law experts, to investigate and propose changes to Ontario’s mental health legislation and policy pertaining to involuntary admission and treatment. The changes should ensure that involuntary admission criteria include serious harms that are not merely physical, and that involuntary admission entails treatment. This task force should report back to the Ministry within one year of the adoption of this report by the Legislative Assembly.”
This has not yet been done. And while Ontario is not capable of providing adequate mental illness treatment for its citizens, it is hoped that BC will continue to show the way. To do that, you will need to remain strong and stick to science based evidence. Above, I promised to say more about the outcry from the civil libertarians. In fact, they may not be civil libertarians but rather people who oppose psychiatry and the science of brain disease for whatever purpose. I am reminded of a libertarian psychiatrist I know who once said that no one is more libertarian than I am. But, he added, how can someone whose brain is significantly impaired by mental illnesses like schizophrenia be able to make a rational decision. They cannot!
All of us who write in support of the mentally ill and advocate for proper medical treatment and medications approved by regulatory agencies face continual hostility from this group. I’ve personally been called all manner of names for what I’ve written in Huffington Post and other places. It goes with the territory and we have to remain resolute and in tune with the science. Personally, I classify these critics as the same as those opposing masks, lockdowns and social distancing for covid along with their refusal to vaccinate.
BC has an opportunity to resist this anti-scientific onslaught and protect the rights of the seriously mentally ill. I hope you will do so.
In summary my knowledge and experience from many families, patients and psychiatrists shows that refusing treatment in Ontario will likely have the same consequences if the courts or the legislature allow refusal in BC. Patients involuntarily admitted because they need treatment to address danger to self or others but refuse psychiatric treatment will: continue to be likely to harm themselves or others, continue to suffer, have longer (and more expensive) detentions, more seclusion and restraints, more assaults on nurses and other patients, more costs to the system, poorer prognoses, and create moral dilemmas for psychiatrists and nurses whose ethic is to do no harm. The harm is that patients lose their rights to health, to liberty, to autonomy, and dignity. Please learn from Ontario.
Please feel free to use this letter as you see fit. It would be nice to know that it has been received and shared with those involved in the defence of your excellent BC Mental Health Act Charter challenge.