Return to Forensic Home Page ||
Return to Table of Contents
Mental Disorder in Canada
Mental Illness and the Law in Canada
Canada, like the US of A is has a Federal System. Laws governing behaviour and social mores are made by the National Parliament while laws governing Health, Education and provision of social programs are made by Provincial Legislatures. Mental Illness thus falls under a series of different statutes. Since I live in Saskatchewan my emphasis will be upon that Province.
The overriding Canadian legislation on the way people treat one another is the Constitution or "the Charter of Rights and Freedoms" This has great significance for mental illness since it forbids the arbitrary detention of individuals and defines a series of measures the person has to assert their rights before the Courts. While the rights are spelled out in details there are two "escape" clauses -
One clause says that some removal of rights of citizens may happen as part of the general rights of others to a free and democratic society. Society has a greater value than the individual in these circumstances which remain largely undefined and therefore up to the Courts to define gradually in precedent.
The second clause - the notorious "notwithstanding...." clause, allows a Province to deliberately opt out of ANY provision of the Charter if it thinks the latter is in conflict with Provincial objectives. Despite not being a signatory to the Canadian Charter, Quebec Province is governed by it and is the only province to have used the "notwithstanding..." clause. So the law in Quebec is NOT the same as elsewhere in Canada and its population is somewhat less secure than the others.
Provincial Laws vary from Province to Province but have some underlying structure. Thus the writers of Mental Health Acts and Child Welfare Acts, governing aspects of the medical and educational management of the mentally ill, will consult other Provincial legislation and try to "improve" on it as they write their own. There is a standard that all Acts written must conform also to the Constitution Act so that too must be considered. Some aspects of geography have to be considered in Provinces with very distant small populations. Here there may need to be delays accepted before a doctor, or psychiatrist can reach and determine the sanity of an individual.
- Canada and its Provinces have signed the International Convention on the Rights of the Child and in general Canada supports United Nations Legal policies and procedures. A number of areas affecting mentally ill or disadvantaged persons are thus automatically included in Federal and in Provincial Law. The adherence to UN declarations and conventions is monitored and reports must be submitted annually to the UN with notes on progress towards UN goals.
- Canadian Laws on antisocial behaviour - the Criminal Code, Young Offenders Act, Food and Drugs Act contain rules and regulations governing propriety in Society - sexual permission, assault, threats, kidnapping, killing, some aspects of age of consent, theft of property, fraud etc. There are also drugs which are sharply restricted - Narcotics etc. some less so, Schedule 4, and others that are obtainable on prescription only. Beyond this there are regulations governing the access of the public to foods and medications that are untested by the federal Health and Welfare authorities. This process of testing may take up to ten years to complete but once complete there is a 20 year period in which the drug manufacturer can recover costs of developing a patented product.
- Canadian Laws on Family - Marriage and Divorce are federal concerns as is the registration of births. The conduct of Marriage and Divorce and the respective contracts is spelled out in the Acts. The right of a person to care for and raise an "Infant" (child under the age of consent) is embodied in the Infants Act . This means that a person feeling improperly dealt with by Provincial Law can appeal to Federal Law to overturn the Provincial decisions on custody and access or care and control of a minor.
There are Acts on Guardianship of the mentally ill or disadvantaged (retarded) and on Competency in which a person may request the Court to grant an order indicating that the subject cannot handle their financial affairs. In general the principles involved strive for:
- Rapid and effective treatment availability as close to home as possible with
- Means for the detention and compulsory treatment of individuals who require it but deny this and may be danger to themselves, others or may suffer the consequences of further deterioration.
- Some Provinces allow the detention of mentally disordered persons without treatment. They therefore want to provide safety and recovery time for the affected individual if that is their desire ( despite the fact that they are unable to reach rational decisions.)
In summary therefore, there is a web of rules, regulations, laws and precedents as well as social mores guiding the management of the mentally ill persons behaviour in Canada. Authority is slow to come into action, official detention and deprivation of rights are resisted vigorously and there may be a fair amount of untreated or undertreated disorder in the community. There are few hospital beds and still major limitations in the number and reimbursement of physician staff for treating mental disorder. As always there is change but this is dictated more by myth and economics than by the hard facts. I note
en passant that Saskatchewan teenagers appear to be the most promiscuous in Canada and suspect that this may well be because of passivity and poor example from their parents who do not practice nor teach self-control.
- There is a conflict evident in the various rules that we should look at. Are mentally disordered persons capable of rational decision-making ? Some insist that they are and that they must come to decisions on treatment by themselves. Others insist that they are not entirely and that in the matter of treating a mental disorder there has to be a residuum of paternalism to speed up recovery, avoid confusing the condition with the its effects on thinking and to assist those others in the community who are also affected by the disorder - family friends and employers.
- Because of this conflict, hospital staffs charge patients who assault, but the Courts send the people back to a hospital ward for treatment rather than a detention facility for correction and isolation. Because of this conflict we have very short periods of certification ( 3 weeks only) before a repeat certification must be arranged. This is an extremely expensive process because of the lawyers involved as Official Representatives ( to keep an eye on the doctors who are seen as wanting to keep people in hospital as long as possible), the Appeals and the payment of the Appeal Board and witnesses, the various forms of paperwork needed to document everything done and so on. This is extremely wasteful in a time of so-called cutbacks and economy.
- In the same way there is a feeling that if someone with mental disorder comes into hospital this is undesirable. The ideal would be to have the community care for them, accepting their disorder while it lasts and delivering all needed services This has resulted in the provision of Approved Homes, Sheltered Workshops, specialised housing, itinerant nurses, social workers, and a level system of care for the cognitively impaired (Alzheimers, Brain damage etc.) which also attempts to maximise the burden on the personUs family rather than the efficient use of monitored and excellent personal care in a hospital-like setting (the old asylum concept) .
- It would seem that the use of modern medications has instilled a sense of false confidence in our governments who expect the family to work miracles at a time when family structure is less able to cope with this and the willingness of family members to undertake care of the elderly is less than in the past when sometimes a single woman was expected to deal alone with these matters. There is considerable pressure to discharge people from hospital in line with the "database" of information on similar cases across the country in similar hospitals with similar staffing. Unfortunately the variables are extreme and the simple comparisons are really not very good.
- Could a hospital be sued for failing to provide continuing care for a person who needs it ? No-one has been successfully sued yet but.... On the other hand hospitals have been sued for "allowing" someone to kill themselves. In fact the management of people in highly secure environments runs counter to modern concepts of the need for responsibility for oneself that go along with the matter of responsibility for behaviour referred to above. So Society itself is unsure about the situation at the moment and rules are still under development with ethical and moral dilemmas mixing with clinical imperatives and best plans.
- The most recent developments include the Community Certification Order which allows a patient to be told -"Either take your medication as prescribed or be readmitted to hospital where you will be given it anyhow." - Hobsons choice. We have concerns that this community order still requires the doctor to monitor the medication and in a non-consenting person, there could be legal consequences if side effects develop. The person may well be able to sue the physician who does not have the day-to-day information on medication that is so easy to obtain in hospital.
PCM personal viewpoint
With Thanks to: