Psychiatrists and provincial governments usually try to place mentally handicapped people back in society as quickly as possible rather than keeping them in institutions. Indeed, through the increased use of drug-treatment therapy and the creation of community aid programs, legislation governing commitment has narrowed in most provinces and fewer people receive institutional treatment. In many jurisdictions, however, support systems are inadequate, and thousands of former mental patients live in crowded boardinghouses or roam the streets. In response, an influential legal committee has circulated among mental health and civil rights groups a draft of proposed amendments to provincial mental health acts that would enlarge the criteria for committing people to psychiatric care. And two proposals in particular in the draft obtained by Maclean's prompted almost immediate concern on the part of civil libertarians that the changes would violate the 1982 Charter of Rights and Freedoms.
One proposal would make it compulsory for a person to undergo psychiatric assessment if a physician perceives him to have caused or to be causing “serious emotional harm” to himself or to others—even if the patient refused the examination, as is currently allowed. Most mental health acts now limit committal to cases where a person is an “imminent” danger—capable of causing physical harm to himself or others. The other controversial proposal is to include a category called “involuntary outpatient.” In that case, patients released from institutions would be forced to maintain prescribed treatment. If they refused to do so, police could arrest them and return them to the treatment centre. Said Dr. Tyrone Turner, provincial co-ordinator of the Toronto-based Psychiatric Patient Advocate Office: “I think we are moving backward, and I have a hard time believing the courts would not strike this down.”
The 14-person committee is an offshoot of the Uniform Law Conference of Canada (ULCC), a private organization with representatives from across the country. The Canadian Bar Association established the conference in 1918 to propose model legislation that would be uniform across the nation. The aim of the draft legislation is to make a “Charter-proof act” in anticipation of challenges. Only after it is
discussed and approved at the conference’s Winnipeg meeting in August will the proposals be sent to the provincial governments for evaluation. According to Arthur Stone, the committee chairman and a legislative counsel for the Ontario government, the provinces have no official input and are under no obligation to put the drafts into law. And while he conceded
that the issues are controversial, Stone said: “It is only a document for debate. You have to start writing somewhere.” But Alan Borovoy, general counsel for the Canadian Civil Liberties Association, said: “We have to have a real concern about the inclusion of a criterion like serious emotional harm. Under this, the thin skin of one person could trigger a loss of freedom for another.” In a written opinion to the Citizen’s Commission on Human Rights— a Church of Scientology-backed group for helping psychiatric patients with legal problems—civil rights lawyer Morris Manning declared that the “involuntary outpatient” proposal “is probably the most offensive section in the entire act and smacks of a totalitarian state.” As well, Dr. John Deadman, a psychiatrist at Hamilton Psychiatric Hospital in Ontario and
spokesman for government-employed psychiatrists, said clinical experience has shown that the success rate with patients who are forced into treatment is far lower.
But the fact remains that every year thousands more Canadians are released from institutions to live only on welfare. Indeed, many mental health workers and civil rights groups say that the
solution to dealing with the mentally disabled—20 per cent of the Canadian population—is not to be found solely in legislation. Said Deadman: “Citizens feel that everybody’s rights ought to be protected. At the same time, public tolerance for bizarre behavior is low, and the reaction of most people is, ‘Something ought to be done about that.’ The public simultaneously wants mutually incompatible things, and that poses a philosophical problem that the law has not resolved.” The committee’s proposals will likely be in the hands of the provincial governments in the fall. But the possibility that they might be incorporated into provincial law guarantees that the controversy over care for the mentally disabled is bound to continue.
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