The Georgia Straight – COMMENTARY
Herschel Hardin: B.C.’s sensible Mental Health Act not in need of any challenges
by Guest on October 13th, 2016 at 4:41 PM
Lawyers Ruby Dhand and Isabel Grant’s argument in “Charter challenge to B.C. Mental Health Act long overdue” (Vancouver Sun, September 24, 2016), trying to justify the challenge, is disconnected from what really matters: the ravages of serious mental illness and getting people well.
Serious mental illness, unlike most other illnesses, involves—in many cases, especially with schizophrenia—a lack of insight by the person into their illness, a clinical condition known as anosognosia. The brain, on which insight depends, is affected by the illness itself.
Consequently, for ill people who are deteriorating—or, in their paranoia, becoming dangerous or suicidal but unaware and denying they are ill—society needs to help. It is why we have involuntary admission, following benchmark criteria, and subsequent treatment. Otherwise, we wouldn’t need to have a mental health act at all.
On that score—getting people well while safeguarding their rights with an appeal provision—the B.C. Mental Health Act is a leader in Canada. Saskatchewan and Manitoba, by the way, have long had similar involuntary-admission criteria, and Alberta, Nova Scotia, and Newfoundland, in recent years concerned by some of their own experience in the field, have amended their criteria along similar lines.
What exercises Dhand and Grant in particular, though, is that in B.C., treatment follows on the heels of involuntary admission. They indignantly call B.C. an “outlier” for this and allege as fact that B.C. is “the only jurisdiction in Canada that provides compulsory psychiatric treatment” as decided on by physicians. This is both incorrect and misleading. The treatment decision in involuntary-admission cases where the patient is incompetent is also made by physicians in Saskatchewan and Newfoundland. In Quebec, it’s done by court order, and in New Brunswick by an administrative tribunal, also without the patient’s consent.
Some other provinces, like Alberta and Manitoba, provide for a substitute decision maker, perhaps the closest relative. However, they have to use the same criteria as physicians, and if they reject treatment but the physician nevertheless believes it is in the patient’s best interests, the physician can file an application for a treatment order to a review panel. Ultimate authority, then, lies with the review panel.
Note that in all of these variations—decision by physicians, court, tribunal, substitute decision maker, or review panel—the resulting authorized treatment is given without the patient’s consent, which is the nature of trying to help someone without insight into their own illness. The advantage of physicians deciding is that it puts the focus clearly on clinical factors and avoids treatment delays, important in cases of psychosis.
Dhand and Grant. instead, seem enamoured by Ontario’s legislation, retrograde legislation that can commit someone who is ill because they’re considered dangerous but can in certain circumstances—for example, a previous wish while they were allegedly competent—allow them to refuse treatment. This condemns the ill person to indefinite detention and continuing deterioration, although treatment exists and they’ve committed no crime. It’s a cruel scenario.
The writers even go so far as to cite with approval a controversial Supreme Court of Canada split decision, the Starson case, whereby, under Ontario law, a patient named Starson was found competent to reject treatment although quite ill and delusional, so much so that he couldn’t be discharged. The overall result was seven years trapped in detention, with his illness rampaging on, until someone used changed circumstances (delusion-driven starvation) as an excuse to treat him. In another Ontario case, an ill man was kept in seclusion for 404 days because he was out of control but couldn’t legally be treated.
In B.C., by contrast, the basic objective of involuntary admission is treatment: to get people well and discharge them. Which is preferable? Why involuntarily admit someone if not to treat them and get them better?
Dhand and Grant also err on other points. They write that “both the common law and the charter are not being adhered to in B.C.” This is just wishful opinion. Cases arising from particular Ontario legislation don’t apply holus bolus to B.C. On the more general question of involuntary admission and treatment, B.C. does have a landmark charter case, the 1993 McCorkell decision in the Supreme Court of B.C., which found in favour of the Mental Health Act (an earlier version similar to the current one).
The writers’ insinuation that the B.C. model produces “dangerous outcomes” is, for its part, wrong-headed rhetoric. The really dangerous outcome is ill people not getting the treatments they need, “madness in the streets”, avoidable violence and suicide, the piling up of mentally ill people in jails and prisons, and all the other tragedy and loss that comes from overly restrictive obstacles to treatment.
Dhand and Grant err as well in stating that B.C., alone of all Canadian jurisdictions, has no specific legislative safeguards. Involuntary-admission decisions in B.C. are immediately open to review by a three-member panel and must be heard within 14 days of application, with a decision no later than 48 hours after that. The patient can be represented and the process is highly accessible.
We’re lucky in B.C. to have a straightforward, sensible mental-health act that aims at getting people well. Dhand and Grant have grabbed the wrong end of the stick.
Herschel Hardin is a former president of the Pathways.
Charter Challenge to B.C. Mental Health Act is Misguided – By Marvin Ross
Two B.C. patients have just launched a Charter challenge to the province’s Mental Health Act. The last challenge to a Mental Health Act that I am aware of was in Ontario where expanded civil commitment rules and the provisions of Community Treatment Orders (CTOs) were challenged. That was unsuccessful. A CTO is an order mandating treatment in the community.
The case in B.C. is a bit unusual in that it opposes provisions in the B.C. Act that are unique in Canada. The two plaintiffs are opposed to the rules that allow a detained individual to receive treatment without consent. The concept of the Act is that if you need to be detained because you pose a danger to yourself and/or others yet lack the capacity to seek voluntary treatment, then you should also be treated as soon as you are detained. That provision is one that makes the Act in B.C., in my opinion, superior to other jurisdictions.
The claim suggests that this forced treatment violates a person’s rights and that the person being committed should be able to help decide on the treatment they wish to have. However, involuntary committal only occurs when someone with a mental illness poses a danger and refuses to accept treatment according to the guide to the Act. (P11). If they recognized they needed treatment and accepted it, they would not be detained.
The plaintiffs argue that with physical illnesses, patients are allowed to make bad health care decisions, which are denied to psychiatric patients. But — and they acknowledge this — if someone is taken to the emergency injured and unconscious, it is appropriate that they be treated. When someone’s brain is so injured and incapacitated by their mental illness, they can be considered to be in the same situation as someone unconscious from a physical trauma. It may take them longer through treatment to reach a level of consciousness where they can participate in their treatment options but providing that treatment is analogous to treating the unconscious victim.
Many will likely disagree with my statement above but B.C. civil libertarian, Herschel Hardin, writing in the Vancouver Sun in 1993, gave an excellent explanation of that when he said, “Here is the Kafkaesque irony: Far from respecting civil liberties, legal obstacles to treatment limit or destroy the liberty of the person.”
He went on to say:
The opposition to involuntary committal and treatment betrays a profound misunderstanding of the principle of civil liberties. Medication can free victims from their illness – free them from the Bastille of their psychoses – and restore their dignity, their free will and the meaningful exercise of their liberties.
Ontario is a good example of the downside of committing someone involuntarily because they pose a risk of danger to themselves and then allowing them to refuse the treatment that is deemed necessary. This issue was discussed in a 2008 article in the Canadian Bar Review called Treatment Delayed – Liberty Denied . The authors demonstrate that attempts to safeguard autonomy by allowing involuntary patients to then refuse treatment has the opposite effect. It: “often results in subjecting them to prolonged detention, mental anguish, physical and chemical restraint, and solitary confinement.”
The most famous Ontario case is that of Professor Starson as he called himself as he believed he was a son of the stars (starson) and a professor. In 2003, the Supreme Court of Canada upheld his right to refuse treatment that had been proposed in 1998 (P 680 in Bar Review Article). After that decision, Starson’s delusion led him to refuse to either eat or drink for fear that his imaginary son would be tortured. By 2005, his health had deteriorated to such an extent that, fearing death, his doctors appealed to the Consent and Capacity Board who ruled that he could be treated. He began on the anti-psychotic medication that he was offered in 1998 and he improved dramatically. He lost seven years of his life as the result of his refusal to accept treatment [P 680-681 in article].
Three other patients like Starson were incarcerated from 5 1/2 years to over 10 with long stretches in solitary until they became so ill without treatment that they had to be treated to prevent death [P 713]. As with Starson, the three of them improved dramatically once they began treatment. One person who continued to refuse, Paul Conway, has been locked up for 25 years and, without treatment, he is unlikely to ever be discharged P 714].
The choice is agreeing to treatment when voluntary or putting up with it when involuntary and getting better in both instances versus being locked up indefinitely. I think the rational decision is treatment.
And, it should also be pointed out that there are protections for the involuntary patient at every step of the procedure. Those opposed to involuntary treatment imply by omission that once someone is locked up they remain so and lose all their rights. That is not the case in any jurisdiction.
Section 7.1 of the B.C. Guide lays out all the rights that the involuntary patient has upon being hospitalized. These range from the right to consult with a lawyer or advocate, the right to a second medical opinion, to a hearing by a review board, regular reviews of the committal orders and the right to apply for habeus corpus.
Involuntary committal and treatment is not something that is taken lightly by anyone or used frivolously but is only done in extreme circumstances in the best interests of the patient.
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North Shore Mayors’ Golf Tournament – May 27, 2016
Pathways is delighted to announce that the society was the designated recipient of the first $50,000 raised at the May 27, 2016 Mayors’ Golf Tournament. This contribution will assist us in addressing community issues through mental health education.
2016 marks a very special year for the Mayor’s Golf Tournament. In just 9 years the golf tournament has raised over $1 million dollars for North Shore foundations and charities.” Our thanks goes out to the organizing committee, sponsors, golfers and volunteers.
North Shore News BRIGHTLIGHTS! July 17,2016
CIRCLE OF STRENGTH – April 29, 2016
Pathways president Janice Lilley, Hollyburn Funeral Home’s Charlene Louw, MC, Jon McComb and First Memorial Boal Chapel’s Carmon Leeson attend the recent Pathways Circle of Strength Fundraiser held at Hollyburn Country Club. The society supports families dealing with serious mental illness.
Canada Parade – July 1st, 2016
Thank goodness the rain held off for another successful parade. The clouds were dark but they couldn’t dampen our enthusiasm. Thank you to those who came out to support the society.
A special thank you to Michael and Daniel Ward for carrying the banner, to Adel and the Bellehmlih family, the girls made it so much fun. Not to forget Graeme Dearnley, Joe Gormley, Janice Lilley, Laura Lopez and Nancy Ford.
The Select Standing Committee on Children and Youth:
Has issued its unanimous report on child and youth mental health with 23 recommendations to strengthen child and youth mental health services in British Columbia. The committee’s recommendations are the result of two years of work and public consultations with individuals, experts, and organizations involved in the delivery of child and youth mental health services.
“We heard that there are some excellent child and youth mental health programs, but there is a need for concrete actions for changes that would provide greater coordination, better accessibility, and improved service delivery to meet the needs of children, youth, and their families,” said committee chair Jane Thornthwaite. “That is why we are recommending a new Minister for Mental Health to provide leadership and accountability and more school- and community-based hubs where mental health professionals work together in child- and youth-friendly settings.”
The committee expresses its appreciation for the invaluable input from all those who shared their experience, expertise, and perspectives with the committee.
The committee’s report is available at:
If you have any questions, contact:
Jane Thornthwaite, MLA (North Vancouver-Seymour)
Parliamentary Secretary for Child Mental Health and Anti-Bullying
for the Minister of Children and Family Development
Cabinet Committee on Secure Tomorrow
Chair Select Standing Committee on Children and Youth
Select Standing Committee on Education & Crown Corporations
Constituency (P): 604 983 9852
Applications Open for the 2016 Responsiveness to Families Award
The Pathways Responsiveness to Families Award is given to a psychiatrist, psychiatric nurse, case worker, social worker, or other service provider involved in the treatment and rehabilitation of people with a mental illness, for outstanding responsiveness to family members.
Nominees shall meet at least one of the following criteria:
– Responding proactively to family members’ efforts to get their ill loved one into treatment, using involuntary admission where appropriate;
– Proactively using outreach in response to family concerns when their ill loved one may need to be in hospital, but will not come on their own to hospital, community mental health intake, or a private physician for an assessment;
– Paying careful attention to family members’ collateral information about the person with the illness, eliciting additional specifics from them, and giving their observations adequate weight.
– In weighing collateral information from family members, fully recognizing the person with the illness’ lack of insight (anosognosia) when it exists;
– Sharing clinical information with involved family members, with special merit for such sharing even without the consent of the patient when required for continuity of care or to protect the patient from risk to health or safety;
– Inclusion of family members as equal and integral participants in the treatment team, recognizing the unique value they bring to diagnosis, treatment and post-discharge care (this unique value stemming from their intimate knowledge of the person with the illness and their medical history, the family’s observations and the acute sensitivity they can bring to their monitoring, their courage and endurance, and their leading personal commitment to their loved one’s well-being);
– Responsiveness to other family concerns, such as the need for good discharge planning, including housing; the importance of understanding a loved one’s inappropriate behaviour as a result of the illness rather than as part of their core personality; the need, in many cases, for extended leave, to help with compliance to medication and preventing relapse; concerns with metabolic syndrome, weight gain, diet, sleep reversal, dental care, and so on.
Nominees must work in mental health care in the province of British Columbia (can be either in public service or private practice). Nominees may include:
– General practitioners
– Psychiatric nurses
– Registered nurses
– Social workers
– Occupational therapists
– Case workers
The nominating family member’s relative who has a mental illness must have been under the care of the nominee.
To nominate a healthcare provider, please submit the following information by email to the Executive Director or by regular mail to the Family Support Centre:
– Name and job title of the nominee
– Facility where they work (or worked if now retired)
– Detailed description of how the nominee has been responsive to the needs of your family (maximum 500 words)
– Your name, email address and contact phone number(s)
Please note: The name of the nominator and/or the person with the illness who was under the care of the nominee will not be disclosed without their express, written permission.
– In 2014, Dr. Steve Mathias, a Vancouver- based psychiatrist, St. Paul’s Hospital and Inner City Youth Mental Health Team
– In 2013, Dr. Cindy Holdsworth, a North Shore-based psychiatrist