As Justice McQuaid of the Prince Edward Island Supreme Court wrote in Re Jenkins:

“The thrust of the Mental Health Act, including its predecessors, has been the safety, support and succour of those who suffer from, or appear to suffer from, a debilitating mental disability or disorder and who, as a consequence, require hospitalization, whether voluntary or otherwise, for their own safety or the safety of others. In this context the word safety goes beyond mere protection from the infliction of physical injury….

“Historically, the law in the English tradition has had a special care and regard for all subjects who suffered from mental disturbance.... [F]rom the earliest days of English legal history those originally termed lunatics, now more euphemistically persons suffering from a mental disorder, were treated as a separate class, requiring and deserving of special care and consideration by the Crown itself but, by reason of their infirmity, subject to certain restrictions as to their freedom of conduct.”

In Starson, Justice McLachlin, albeit in a dissenting judgment, remarked that involuntary apprehensions for reasons of mental disorder, brings into conflict fundamental values:

"The problem is difficult because it sets in opposition fundamental values which we hold dear.  The first is the value of autonomy — the ability of each person to control his or her body and consequently, to decide what medical treatment he or she will receive.  The second value is effective medical treatment — that people who are ill should receive treatment and that illness itself should not deprive an individual of the ability to live a full and complete life.  A third value — societal protection — comes into play in some cases of metal illness.  Where the mentally ill person poses a threat of injury to other people or to him– or herself, it may be justified to impose hospitalization on the basis that this is necessary in the interests of public safety."

old picture of mental patient in straight jacketEach jurisdiction has a form of mental health statute which allows for the involuntary apprehension of individuals for mental health reasons, habeas corpus be damned.

Of course, in many instances the individual checks himself in for treatment. The destitute father who comes home to an empty house – no kids or kids – and is then emotionally overwhelmed by a "dear john” letter is an example of the occasional use of mental health committal which is done voluntarily. Alcohol, drug abuse and even severe anger problems are others.

But in many other cases, apprehensions (the mental health industry would prefer that we use the word “apprehension” rather than “arrest”) are involuntary.

The wording of the statute is ominous:

“A medical certificate (respecting the person completed by a physician) ... is authority for anyone to apprehend the person to be admitted, and for the transportation, admission and detention for treatment of that person in or through a designated facility.

“The director of a designated facility may admit a person ... and detain the person ... on receiving one medical certificate respecting the person completed by a physician.”1

And the effects are chilling. Justice Robens of the Ontario Court of Appeal stated the obvious when he wrote, in Fleming v Reid:

"Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects."

Hovering over all provincial statutes is the Charter of Rights and Freedoms:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice....

“Everyone has the right not to be arbitrarily detained or imprisoned.”

Over There! No! Over Here!

In Ontario and British Columbia, the mental health statute allows for the arrest of an individual by the police for the purposes of a psychiatric assessment if he or she:

  • Has threatened or attempted bodily harm; and
  • The person is apparently suffering from mental disorder of a nature or quality that likely will result in serious bodily harm.

mental health certificateThe Ontario Mental Health Act specifically adds: “... or has shown or is showing a lack of competence to care for himself.”

Each jurisdiction is different, some trying to set a standard of danger to oneself or others; others focusing on the mental disorder aspect; most, a combination of both.

If provincial difference is what you're looking for, you've come to the right place. Health law is primarily a matter of provincial jurisdiction and this is not an area that has attracted any successful uniform law initiatives.2 Consider the definition of mental disorder in the Alberta Mental Health Act:

"... a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary demands of life."

The Canada-wide, federal statute, the Criminal Code defines mental disorder but it is of little assistance (see, also, the Editorial Note below):

"Mental disorder means a disease of the mind."

But anywhere, it seems, the difficulty is vagueness. Mental disorder is defined in the the British Columbia statute as:

"A person who has a disorder of the mind that requires treatment and seriously impairs the person's ability to react appropriately to the person's environment, or to associate with others.”

The Cuckoo Nest Form

The process usually starts with a doctor or two completing forms which state that the patient has a mental disorder and requires committal “for the protection of the person or patient or the protection of others”.

For seniors, the mental disorder is often, simply, dementia.

syringeIn British Columbia, once hauled before a physician for assessment pursuant to the statute, kicking and screaming if need be, the physician can commit the person if, inter alia, the committal is “necessary and urgent” (11) and “given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm” (s. 20(1.1)(d)).

The committals are usually for a fixed period, such as 30 days, but are readily renewable with recertification by one or two physicians.

The upshot of the law is that a person can be held against their will on the basis of two certificates from doctors. Nothing against doctors but other than the person of a judge, or a police officer for a very short time, only in martial law conditions  does the law allow involuntary apprehension of a living, breathing, uninjured human being on such thin evidence.

Under such conditions, to borrow words of Justice La Forest in Lyons:

“In the absence of objective standards, the possibility of compulsory examination and detention hangs over the heads of all persons suffering from a mental disorder, regardless of the nature of the disorder, and the availability and suitability of alternative and less restrictive forms of treatment.”

Reality 101

Even if release is given, the patient - often drugged - is never fully aware of the law or any match for experienced doctors who uses the statute every day. The section of the act that allows for release (also known as “leave”) allows doctors to stipulate conditions. You don’t agree to the conditions, you don’t get your “leave” from the psychiatric facility. Those conditions often impose pharmaceutical regimes and a stipulation to reside in a senior’s home.

These apprehensions can raise any number of issues especially in regards to seniors. For example, some physicians are on retainers by care homes and have a conflict of interest between their employer and their patient. This can affect their judgment. Endemic to seniors are a number of benign illnesses that may appear, in the aggregate or separately, to be mental disorders but in fact are not. These include great sadness over the loss of a loved one or failing health (often too readily diagnosed as depression); hearing loss; slowness of speech; an inability to follow quick speech; slight short-term memory loss and a host of physical disabilities or ailments some of which may be triggered by medication.

In June of 2010, the Canadian Broadcasting Corporation reported on Ellen Elliot, an 89-year old Alzheimer's patient. Mrs. Elliot's daughter was distraught at the possibility of an involuntary apprehension merely because the family does not want night medication.

If release is not forthcoming, the statutes typically allow a convening of an administrative tribunal or even a court of law to review the authority over a person by a doctor or two under mental health law. In Ontario, the review is conducted by the Consent and Capacity Board. In British Columbia, the review panel is a component of the government: a part of the Ministry of Health. In other words, peer review with questionable judicial independence.

Forty-two year old Stephen Mullins attended Vancouver General Hospital with “body tremors and feelings of distress” and was prescribed a psychiatric assessment. A student doctor observed his “panic attack” and initiated the process to have the plaintiff involuntarily committed! She spoke to a real doctor who did not see, interview or examine Mullins before signing the involuntary committal form under the Mental Health Act. The student doctor also asked hospital security to not let Mr. Mullins leave the hospital. What happened next occurred in Vancouver in 1998:

“The plaintiff heard the noise of the security personnel in the hallway and opened the door to see what was happening. He was ordered to stay in the room. When he tried to leave he was blocked and when he tried to push through he was tackled to the ground, restrained, and taken to the seclusion room.... His clothes were cut off and he was injected with medications. The plaintiff was detained for five days and medicated throughout that period against his express wish.”

Mullins fought off his medications long enough to instruct his father, a lawyer, to file and claim against the hospital and ultimately gain his release. He sued the hospital and committing doctors for false arrest and imprisonment and won ridiculously low damages of $15,000. There had been no proper diagnosis of a mental disorder.

A Very Legal Syringe

Evidently, the law really struggles between the rights of all of us, and the rights of those afflicted with mental disorder. As always, choosing the least expensive path, the involuntary apprehension statutes allows the detention and medication individuals based only on forms completed by two doctors, and to a standard that is different in every Canadian province.

To that decor, one has to recognize a real reluctance by the courts to rock the boat as they systematically defer to the wisdom of the legislature and the office of any member of the College of Physicians and Surgeons, always hoping that their sister, brother, mother, father ... if not their very selves ... will not be, one day, at the wrong end of a very legal chemical straitjacket in the form of a large syringe.

Editor's note: for involuntary mental health assessments in the context of criminal proceedings, as of July 2010, see Canada's Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 (§672.1-672.95).