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Mental Health Acts in Canada

Published online by Cambridge University Press:  28 May 2010

ALISTER BROWNE
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Extract

There are 12 different Mental Health Acts (MHAs) in Canada, all of which provide for the involuntary confinement of the mentally disordered to protect both them from themselves and others from them. The Acts differ in many ways, but three issues stand out above all: (1) involuntary admission criteria, (2) the right to refuse treatment, and (3) who has the authority to authorize treatment. I first describe how the MHAs differ on these issues. I then take up the methodological question of how to select or construct a MHA from the many, all of which have something to be said for them. Finally, I apply this test to the three main issues in dispute and identify which solutions would be in an ideal MHA. My aim in this last is not to settle the issues but to engage with them and so deepen our understanding of what is at stake.

Type
Special Section: International Voices 2010
Information
Cambridge Quarterly of Healthcare Ethics , Volume 19 , Issue 3 , July 2010 , pp. 290 - 298
Copyright
Copyright © Cambridge University Press 2010

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References

1. For an overview see Gray, JE, O’Reilly, RL. Clinically significant differences among Canadian mental health acts. Canadian Journal of Psychiatry 2001;46:315–21CrossRefGoogle ScholarPubMed. A detailed discussion can be found in Gray, JE, Shone, MA, Liddle, PF. Canadian Mental Health Law and Policy, 2nd ed. Markham, Ontario: LexisNexis Canada Inc.; 2008Google Scholar.

2. See note 1, Gray et al. 2008:129–32.

3. See note 1, Gray et al. 2008:143–5.

4. See note 1, Gray et al. 2008:201.

5. See note 1, Gray et al. 2008:200–14.

6. Rawls, J. A Theory of Justice. Cambridge, MA: Harvard University Press; 1971Google Scholar.

7. BCSC [1993] B.C.J. No. 1518 Vancouver Registry No. A911598.

8. See note 1, Gray et al. 2008:Ch. 9, esp. pp. 332–3.

9. Ontario Mental Health Act, R.S.C 1990, c. M.7, as am., s. 20(1)(c).

10. Starson v. Swayze [2003] S.C.J. No. 33, 2003 SCC32 (S.C.C.).

11. The outcome of the case was that Professor Starson developed severe paranoid delusions, refused food, and fell into a life-threatening situation. His mother then authorized treatment and his condition improved. Two years later the Board ordered the hospital to assist Professor Starson to become established in an apartment in the community. See note 1, Gray et al. 2008:226–30. This is sometimes told as a cautionary tale, the moral being that the right to refuse treatment should be repealed in those jurisdictions that have it. But it supports no such moral. It is a fallacy to judge the appropriateness of a decision by its outcome. Thus even if bad outcomes flowed from all cases of refusal of treatment, that would not show that the capable should be denied the right to refuse. One can think it does only if one rejects the view that paternalism is wrong whatever the consequences, and that requires considerable further argument.

12. A distinction is always drawn between the ability to understand and appreciate and actually understanding and appreciating the nature and consequences of decisions. But it is also common to regard it as a purely theoretical distinction. Authors and courts often note it, say that it is the ability to understand and so forth that is the relevant definition, and then treat the actual understanding and so forth as what decides the question of capability. See Weisstub, DN. Enquiry on Mental Competency Final Report. Ottawa: Queen’s Printer for Ontario; 1990:249Google Scholar.

13. Robertson, GB. Mental Disability and the Law in Canada, 2nd ed. Scarborough, Ontario: Carswell; 1994:467–73Google Scholar.

14. For sample cases illustrating tragic delays see note 1, Gray et al. 2008:226–32.

15. As recommended by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forgo Life-sustaining Treatment. Washington, DC: U.S. Government Printing Office; 1983:128.

16. See further O’Reilly, RL. The capacity to execute an advance directive for psychiatric treatment. International Journal of Law and Psychiatry 2008;31:66–71CrossRefGoogle ScholarPubMed.

17. These terms come from Gray et al. (see note 1, 2008:11-3).

18. As they do. See McCormick WO. Involuntary commitment in Ontario: Some barriers to the provision of proper care. Canadian Medical Association Journal 1981;124:715–8; McCready, JM, Merskey, H. Compliance by physicians with the 1978 Ontario Mental Health Act. Canadian Medical Association Journal 1981;12:719–24Google Scholar.

19. Sacks, O. The lost virtues of the asylum. The New York Review of Books 2009;LVI(14):50–2Google Scholar.

20. For a discussion of cost with references to further literature, see note 1, Gray et al. 2008:246–7.