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

By Gerald Chipeur and Tracey Bailey

Law360 Canada (August 4, 2023, 11:38 AM EDT) --
Gerald Chipeur
Gerald Chipeur
Tracey Bailey
Tracey Bailey
In the first article in this two-part series, we quoted then Chief Justice Beverly McLachlin, who delivered the Honorable 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.

We also pointed out that 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. The government has proposed a new Compassionate Intervention Act, though no bill has been introduced. While the details are not yet known, this may contain provisions similar to other mental health legislation, including Alberta’s Mental Health Act. While this bill 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.

Before discussing the Mental Health Act, it will be helpful to consider what the law normally requires prior to treatment of an individual in terms of obtaining consent.

The law usually requires the consent of an individual prior to the provision of treatment or other health-care services to that person. However, there are exceptions. One example is treatment provided in an emergency, as defined by the courts or the legislature. Other legislative examples exist in every province and territory in Canada, particularly in the areas of public health and mental health. In public health, the ethical justification for proportionate infringement of individual rights and freedoms is principally based on the need to protect the health of the population. In mental health, the ethical basis has been both protection of persons with significant mental disorders and, at times, protection of the public.

For a consent to be legally valid at common law, three things are required. First, consent must be provided by an individual with capacity to make the decision in question. If the individual lacks capacity, then the decision must be made by a legally authorized substitute decision-maker. Second, the consent must be provided voluntarily, without any undue influence or coercion. Thirdly, the consent must be informed. The individual must be provided with the information a reasonable person in their shoes would want to know, and the individual must be provided with an opportunity to ask questions and have their questions answered.

A mental disorder, including a substance use disorder, may affect an individual’s capacity to make a decision. How “capacity” is defined is of the utmost importance, as the Starson v. Swayze, 2003 SCC 32 case illustrates. A mental disorder, and in particular substance use disorders, may also impact whether an individual can provide a voluntary consent or refusal of consent, depending on the symptoms of compulsion being experienced at the time by the person, the decision to be made and the circumstances in which the individual makes the decision. Finally, a mental disorder may impact the degree of information an individual has or is able to understand at the point in time a decision must be made. While many individuals with mental disorders will have capacity and be able to make a voluntary and informed decision, it is important to consider those who will be unable to do so, regardless of the processes in place and implemented by the most skillful and caring of health professionals. (See Black v. Alberta, 2023 ABKB 123 at para 78.)

Alberta’s Mental Health Act allows involuntary confinement of those who are severely mentally ill, including as a result of substance use disorders, but only where the intervention is to “restrict the liberty of individuals with significant mental health disorders where necessary to provide protection through treatment.” (J.H. v. Alberta (Minister of Justice and Solicitor General), 2020 ABCA 317.)

The Court of Appeal accepted that involuntary treatment may be necessary for “individuals with significant mental health disorders,” but only where the restrictions on liberty take “into account the specific circumstances of the individual … on an ongoing basis.”

The Court of Appeal had been critical of the Alberta mental health and larger health system (prior to amendments made to the Mental Health Act in 2020) because it did not provide support for an individual when unable to “tend to his own needs” This “resulted in long-term detention instead of support.” The Alberta government responded to this criticism with amendments to the Mental Health Act.

Under the amended Mental Health Act, individuals can be cared for, observed, examined, assessed and detained if they meet the criteria under the Act. They may also be treated, in some very limited instances, without their consent. However, the criteria that must be met to do so are extremely narrow and there are significant safeguards built into the legislation to provide protections for some of society’s most vulnerable persons.

There are four criteria that must be met for an individual to be detained in a designated mental health facility as a “formal” patient. A qualified health professional must examine a person and be of the opinion that the person:

  1. Is suffering from mental disorder (as defined in the Mental Health Act);
  2. Has the potential to benefit from treatment for the mental disorder;
  3. Is, within a reasonable time, likely to cause harm to others or to suffer negative effects including substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder; and
  4. Is unsuitable for admission to a facility other than as a formal patient.

With respect to the first criteria, this is only applicable if the individual is suffering from a mental disorder as defined in the Mental Health Act. The Act defines “mental disorder” as follows:

1(1)(g) “mental disorder” means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs
(i) judgment,
(ii) behaviour,
(iii) capacity to recognize reality, or
(iv) ability to meet the ordinary demands of life,
but does not include a disorder in which the resulting impairment is persistent and is caused solely by an acquired or congenital irreversible brain injury.

“Mental disorders” are assessed and diagnosed in North America through the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) published by the American Psychiatric Association. Substance use disorders are some of the specific mental disorders set out in the DMS-5. However, while many Canadians and Albertans will have a mental disorder, very few will meet the definition as set out in the Mental Health Act given its significant restrictions. The defined term limits the application of the Mental Health Act to those persons with substantial disorders who have one or more specified domains of functioning which are grossly impaired.

The second and third criteria are based on the treatment approach referenced by Chief Justice McLachlin. The previous dangerousness criteria have been supplanted by an approach that is premised on a treatment model. The Alberta treatment model requires the potential for the individual to benefit from the treatment. It also aims to prevent a “revolving door” pattern where individuals are treated in a facility only for so long as they do not pose a danger and then released, only to deteriorate without treatment that provides stabilization and face renewed involuntary committal. The British Columbia Court of Appeal recently commented on the importance of avoiding a revolving door. (A. T. v. British Columbia (Mental Health Board), 2023 BCCA 283 at paras 42, 58, 73, 79 and 80.)

The fourth criteria supports the premise that involuntary detention ought not to be used where a person is willing to voluntarily pursue treatment.

Another safeguard is the requirement for two qualified health professionals to determine the four criteria have been met before a person may be kept for more than 24 hours after being conveyed to a designated facility for assessment. There are also time limits on any certificates issued under the Act where the criteria have been met. Additionally, there are mechanisms in the Act that require the review of the certificates at periodic intervals.

Mental health review panels, comprised of a lawyer as chair, a psychiatrist and a public member, also provide a crucial safeguard mechanism. Review panels are available to hear applications from patients (or their legal representatives) to cancel certificates, review the opinion of a treating physician that the person is incompetent to make treatment decisions and to consider whether treatment proposed by a qualified health professional is in the best interests of the individual.

Other safeguards include:

  1. The duty to inform the individual, or the individual’s guardian and/or nearest relative of the reason for the issuance of the admission or renewal certificates;
  2. The duty to inform of the right to apply to a review panel for cancellation of certificates, etc.;
  3. The duty to inform of the right to legal counsel;
  4. The duty to provide written information with specified details including information respecting the above, as well as the steps to obtain free legal services, the function of the Mental Health Patient Advocate, the right to contact the Mental Health Patient Advocate and the way to make that contact; and
  5.  The right of appeal to the Court of King’s Bench from a decision of a review panel.

It is also possible under the Mental Health Act for anyone who has reasonable and probable grounds to believe that a person is suffering from mental disorder and, within a reasonable time, is likely to cause harm to others or to suffer negative effects as a result of or related to the mental disorder, to apply to court for a warrant to apprehend the person for an examination.

Peace officers also have authority under the Act where certain criteria are met to apprehend and convey a person to a facility for assessment and examination.

In summary, the Mental Health Act already provides legal authority to intervene and help individuals with significant mental disorders, including substance use disorders, in a way that may be used to assess, offer treatment and provide incentives to pursue treatment once stabilized.

Autonomy is a highly valued ethical principle in Alberta, but it is not the only highly valued principle that our policy and law balances and is founded upon. Even when striving to protect autonomous decision-making, the courts will require serious consideration of “formal” versus substantive autonomy, particularly for persons with vulnerabilities such as unaddressed medical, psychiatric, social, employment and housing issues. A focus on the protection of formal autonomy only, due to an impoverished understanding of the impacts of such a position, could leave some of our most vulnerable and in-need neighbours without the supports they need to protect their health and preserve real autonomy.

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

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.

Photo credit / Svetlana Larshina ISTOCKPHOTO.COM

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