A legal standoff between judges and mental hospital authorities led to a schizophrenic offender being held in filthy conditions for 61 days, alleges a legal action filed by his lawyers.
Lawyers for the offender, James Procope, said that he was left in a cell, unwashed and covered in his own excrement, while awaiting treatment that had been ordered by a judge.
The incident is the latest in a heated battle between hospital officials and a group of judges who sit in Toronto's mental health court. Frustrated that mentally unfit offenders have been routinely kept in jail for days or weeks because of a hospital bed shortage, several judges began prohibiting the practice last fall.
Mr. Procope was eventually medicated and remains at the Mental Health Centre Penetanguishene. In a case that will be heard in December, he has applied to Ontario Superior Court to have his criminal charges stayed on the basis that he was subjected to cruel and unusual punishment.
"The applicant was not bathed for the first 61 days after his admission to MHCP," lawyers Robin Parker, Frank Addario and Jessica Orkin said in a brief to the court. "The applicant was placed in locked seclusion with a Plexiglas covering over his window."
They said that, besides covering himself in excrement, Mr. Procope wrapped toilet paper around his arms and head, talked into a paper cup and mashed his food into the walls. "The hospital cleaned the room, but not the applicant," the brief said.
Ms. Parker said in an interview that her client ought to have been given immediate medical attention rather than being processed as a common criminal.
"People with mental disorders always get the short end of the stick," she said. "Somebody needs to fix this; it's just Dickensian. My client was detained in deplorable circumstances in a modern jail, then a modern hospital, all because the system couldn't get its act together."
Mr. Procope was charged with assault on Aug. 23, 2010, after allegedly raising his fist near the face of a Timothy's coffee shop employee who had tried to prevent him pocketing several packets of sugar. He was also charged with the theft of $21 in merchandise from a nearby store.
Police later discovered that he also had an outstanding charge for assaulting a security guard who tried to prevent him sleeping in a building foyer.
While awaiting trial at the Toronto Jail, Mr. Procope became belligerent and refused to take medication. Jail officials asked the courts to get him into a hospital.
Ontario Court Judge Mary Hogan ordered that Mr. Procope be taken immediately to a mental institution. She condemned the practice of jailing the mentally ill and urged the province to provide more beds for the mentally ill.
However, Toronto's Centre for Addiction and Mental Health was full, so Mr. Procope was taken to the hospital in Penetanguishene.
In an affidavit filed in Mr. Procope's case Dr. Alexander Simpson – clinical director of the law and mental health program at CAMH – said that Judge Hogan's order placed CAMH, "in an untenable position."
He said that the judges are harming mentally ill offenders by using them to pressure the province into coming up with more beds. "CAMH can usually make a bed available in a reasonable period of time if the available resources are used sensibly and unreasonable demands are not made," Dr. Simpson said.
However, lawyers for the mentally ill argue that CAMH frequently does not come through on its promises, meaning that judicial orders are thwarted.
"Crucially, there is no mechanism in place to inform their counsel that they remain in jail contrary to the terms on which the judge's order was initially made," Ms. Parker noted. "These sick, unfit people remain in jail, in procedural limbo until they are eventually brought to the hospital, but only when the hospital decides they are ready to take them. The hospital seems to be answerable to no one."
Mr. Procope's brief states that he should have been treated on an involuntary basis as soon as he arrived at a hospital, as is done with all seriously ill patients. It alleges that, for reasons that are difficult to comprehend, Mr. Procope was instead left untreated.
The brief states that Mr. Procope was briefly removed from his cell on his 13th day. He had spent the entire time with food and feces smeared into his hair and over his body, and he was wearing feces-soaked socks on his hands and feet. He was returned to the cell after it had been cleaned.
"The conditions of the applicant's pre-trial custody at MHC were degrading, humiliating, unnecessary and grossly disproportionate to what was required in the circumstances," the brief said.
"Whether for business or medical reasons, the MHC's treatment of the applicant violated basic standards of treatment of the mentally disordered involuntarily detained in a Canadian hospital."
If Mr. Procope's criminal charges are stayed, the hospital will be able to hold him for further treatment by having him civilly committed.
"You could solve the bed shortage for people with mental disorders caught up in the justice system for less than it costs to pave a small stretch of unused highway," said lawyer Frank Addario. "But the government has no interest. The mentally disordered are like untouchables."