Can we, in a democratic society, justify incarcerating people who have committed no crime? Is forcing sick people to take medication against their will legal, and constitutional?
The answer to those questions is "Yes," according to an important new ruling from the Ontario Supreme Court.
In a decision released earlier this month, Justice Edward Belobaba upheld the provisions of the Ontario Mental Health Act that allow for people suffering from severe mental illness to be committed to psychiatric institutions for treatment, and community treatment orders that mandate continuing treatment, usually involving medication.
The decision has far-reaching ramifications because most jurisdictions have some form of committal on their books, and five provinces use community treatment orders (CTOs).
A little background is needed to situate the debate. In 1995, Ottawa sportscaster Brian Smith was shot to death by Jeffrey Arenburg, a man with untreated schizophrenia who heard voices from broadcast towers and felt that killing a broadcaster would silence them. An inquest concluded that Mr. Arenburg should have been in hospital but the law on committal and treatment orders was too weak. In 2000, Ontario adopted the so-called Brian's Law, which beefed up the law.
The Empowerment Council Systemic Advocates in Addictions and Mental Health, a group of self-described "psychiatric survivors," challenged the law, saying it was unconstitutional because it violated the right to life and liberty and that forced treatment constituted cruel and unusual punishment.
The applicant in the case was Karlene Thompson, a 59-year-old former teacher who was diagnosed with schizophrenia in 1973 and was hospitalized at least 13 times up to 2000. She was hospitalized again after she was found living in a squalid rooming house where she collected her feces and urine in plastic bags.
Ms. Thompson was released on a CTO that obliged her to take anti-psychotic drugs. She did until 2003, after which she became delusional and deteriorated physically. Then the legal battle began. (Ms. Thompson eventually moved back to her native Jamaica to avoid treatment, but the case proceeded.)
Such cases are complex and Justice Belobaba's ruling is rich with detail and subtlety but, in essence, the key issue was the purpose of the Ontario legislation. Is the purpose of committal and CTOs solely to bolster public safety, or is it also to improve the treatment of patients who are seriously mentally ill?
If the law were solely designed to improved public safety, he said, it would be unconstitutional because "there is no meaningful correlation between mental illness and violence."
But Justice Belobaba concluded that the law is clearly designed to help people who desperately need help and who, because of their illness, are incapable of consent. That point is essential.
Parents of people with severe mental illness have long been frustrated by civil libertarians who argue that individual rights – including the right to refuse treatment – are paramount. That's because those with severe mental illness often have a symptom called anosognosia – a lack of awareness that they are actually sick. Treatment is "forced" on them because they don't have the capacity to make a rational decision.
That is not cruel and unusual punishment. On the contrary, it is humane and compassionate.
Involuntary committal to a psychiatric institution is a last resort; it is also a rarity, usually reserved for those who commit serious acts of violence and are judged not criminally responsible.
For the most part, people with severe mental illness who refuse treatment and who become a risk to themselves or others as a result end up with community treatment orders.
It should be noted that physicians or family members cannot impose these conditions on a whim; there is an elaborate legal process that needs to be followed, and appeal processes up to and including the Consent and Capacity Board.
Between 2000 and 2010 in Ontario, the number of CTOs issued annually ranged from 656 to 1,093. The mandatory treatment lasts, on average, 1.9 years. But most CTOs tend to be renewed because those affected tend to be the sickest of the sick.
Community treatment orders are far from perfect and this has been well-documented. But, if anything, they are underused. There are still too many sick people caught in a revolving door between treatment and illness. We resist because the notion of treating people against their will (even if they are irrational) sticks in our craw.
It also needs to be said that the drugs used to treat those with severe mental illness, especially anti-psychotics, are far from perfect. They can cause massive weight gain, and increase the risk of diabetes and heart disease. But, again, it's a balancing of risks. Harming the heart is an unfortunate but fair tradeoff if it prevents a person from wallowing daily in his own feces, harming others, or killing himself. And the imperfection of drugs does not invalidate the law or undermine its purpose.
When the state behaves in a coercive fashion against an individual, we should be concerned, and doubly so when that power is enshrined in legislation. But the interventions allowed under the Mental Health Act are justified and necessary; they meet the test of reasonable limits to the freedoms guaranteed in the Charter of Rights and Freedoms. But those are technical legal matters.
The Ontario court ruling is important, above all, because it reminds us that individual autonomy needs to be balanced against the right to be well.
The "freedom" to be sick is a false freedom.
André Picard