Understanding rights of those with severe mental illness, substance use issues, part one

By Gerald Chipeur and Tracey Bailey

Law360 Canada (August 3, 2023, 9:16 AM EDT) --
Gerald Chipeur
Gerald Chipeur
Tracey Bailey
Tracey Bailey
In February 2005, then Chief Justice Beverley McLachlin delivered the Honourable Justice Michael O’Byrne Lecture at the University of Alberta and the University of Calgary. In that lecture, she considered “the competing values of autonomy, treatment and protection” that arise in medicine and law when addressing the needs of persons with severe mental disorders.  

In order to do this, Chief Justice McLachlin first revisited her dissent in Starson v. Swayze, 2003 SCC 32. The majority in that case upheld Scott Starson’s right to refuse treatment while under an involuntary mental health confinement order, as they found he had capacity to make this decision. Chief Justice McLachlin dissented from that decision because it created a “cruel paradox.” She was concerned that the “freedom to refuse” treatment “may in fact result in institutional confinement and continued debilitation.” This was, in fact, the result.

Chief Justice McLachlin noted in her lecture that after the decision of the Supreme Court of Canada “Starson’s mother was reported to be devastated by the Court’s decision, saying that her son’s life and dreams have been destroyed. An account of subsequent interviews with Professor Starson and an appearance before the Ontario Review Board would seem to indicate that his mental health is not improving.” Others also noted this outcome.

After acknowledging the competing “dangerousness” and “treatment” models for addressing the needs of severely mentally ill persons and society, Chief Justice McLachlin indicated a preference for the “treatment” model:

On the other hand stands the argument that not treating severely mentally ill persons on account of their refusal to consent represents a particularly impoverished understanding of their rights and civil liberties. It assumes that the “formal” autonomy rights of persons whose will and understanding are seriously impaired by illness should be preferred to their substantive freedom and to other fundamental rights and freedoms that continued mental illness denies them. Failure to treat may well result in permanent impairment of their right to be free from physical detention and their right to have a mind free from debilitating delusions, terrifying hallucinations and irrational thoughts. Although respecting a mentally ill person’s decision to refuse treatment formally accords them equal treatment with non-mentally ill patients, abandoning such people to the torments of their illness, mental and physical deterioration, substance abuse and perhaps suicide surely does not respect their inherent dignity as human beings the argument concludes.

She concluded that it is possible to balance the “rights” and the “needs” of severely mentally ill persons:

There is much left to do. Science is a long way from unlocking all the mysteries of mental illness. There remains much to learn about causes and possible courses of treatment. Uncovering these secrets is an important challenge for medicine. The challenge for the law is to keep pace with medical developments and ensure that the legal regime governing mentally ill persons is responsive to the current state of scientific knowledge. Our common challenge as doctors and lawyers is to work together in addressing the problems posed by mental illness. Laws cannot heal people, only services and treatment provided by medical professionals can achieve that ultimate goal. But the law can create a social and regulatory environment that assists medical professionals in delivering their services in a manner that is both ethical and respectful of the rights and needs of the mentally ill.

While the case of Starson v. Swayze dealt with an individual reportedly diagnosed with bipolar disorder and/or schizoaffective disorder, the legal comments are equally applicable to other persons with mental health disorders that can have severe negative impacts on those suffering from them, including some individuals with severe substance use disorders.

A large part of the population will experience mental health issues or have family members or other loved ones struggling with impaired mental health. This is also true of addiction disorders.

The newly elected government of Alberta has promised to continue to take steps to expand and implement a “treatment” model to address the needs of persons with severe substance use disorders, many of whom suffer from concurrent mental disorders and other challenges to improved health and well-being. Alberta’s voluntary recovery-oriented treatment based approach to addiction has shown early signs of success.

Some have criticized this approach and have called instead for greater “harm reduction” in the form of providing a “safe supply” or “public supply of addictive drugs” to individuals with substance use disorders. The theory is that such public supply of drugs will reduce deaths from overdose. The Alberta government has reviewed the experience in Canada and other jurisdictions and has concluded that this approach is not supported by evidence and is not poised to meet its goals.

The government has proposed a new Compassionate Intervention Act. While the details are not yet known, this may contain provisions similar to other mental health legislation, including Alberta’s Mental Health Act. It appears to be aimed at increasing the methods of intervention for persons with substance use disorders. Some critics have not been impressed that such intervention is being considered. Some have declared that “forcing drug users into treatment is a violent policy” and have attacked the Alberta government’s treatment model, arguing that “intervention without human rights” is wrong.

The arguments of certain critics appear to be in response to statements from the premier of Alberta such as this on May 15, 2023:

If re-elected, we will continue creating opportunities for those who are unwell to seek voluntary treatment with no barriers. But there are people who are suffering who are in imminent danger to themselves and others as a result of their drug use. We need a more assertive intervention to ensure they get better, to save their lives, and to keep our communities safe.

The first part of the statement is not problematic. In fact, it is consistent with the goal of supporting autonomy and respecting civil rights. It reflects the commitment of Alberta to provide additional voluntary treatment options, including residential addiction treatment services and other supports for any person with a substance use disorder who desires treatment. A careful analysis of what is now being referred to as the “Alberta Model” discloses that personal autonomy and choice are highly respected and protected throughout interactions between government authorities and individuals suffering from severe mental illness including substance use disorders.

The objection is apparently to words that reference “more assertive intervention to ensure they get better, to save their lives, and to keep our communities safe.” This may or may not ultimately involve legislative change. While a Compassionate Intervention Act has been proposed, the same aims could be achieved through use of existing legislation. The current state of the common law and legislation in Alberta, and in particular Alberta’s Mental Health Act, already allow “more assertive intervention” in such instances.

This is the first in a two-part series. Read the second article: Understanding the rights of those with severe mental illness, substance use issues, part two.

Gerald (Gerry) Chipeur, KC, is a partner in the law firm of Miller Thomson, LLP. For over 35 years, his practice has focused on public policy and the removal of administrative red tape. Private sector and public sector clients rely on him to navigate the rules that regulate business and government. As a trial and appellate lawyer, Gerry has pleaded cases before administrative tribunals and the courts, including over two dozen matters in the Supreme Court of Canada. He also serves on the Alberta Review Board and as a commercial arbitrator. Tracey M. Bailey, KC, is an associate counsel at Miller Thomson LLP with 30 years’ experience providing legal, legislative, policy and strategic advice on a wide range of issues in health law. Tracey advises public and private health system and professional clients on a wide range of matters, with a particular focus on regulatory, strategic and risk management advice, as well as advice related to government relations and legislative drafting. Her practice includes supporting clients such as government, health authorities, health organizations, professional regulators and health professionals.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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