Time ticking for Ontario government to make...
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Mar 01, 2015  |  Vote 0    0

Time ticking for Ontario government to make significant changes to Mental Health Act

Mental Health Act detentions could be limited to six months by December after it is revealed a deaf, mentally ill man has been held under the act for two decades


The government of Ontario has less than a year to make significant changes to its Mental Health Act, following a recent game-changing court decision calling for a time limit on involuntary detentions under the law.

The deadline to appeal the December 2014 Ontario Court of Appeal decision came and went this week with no word from the provincial government, meaning the ruling to place a six-month cap on detentions is set to come into effect later this year.

Passed in 1990, the Mental Health Act allows for a mentally ill person who poses a danger to themselves or others to be detained in a psychiatric facility. Involuntary detention, as it is known, is meant to be a temporary emergency measure. In the vast majority of cases, a patient is only held for a matter of days; 80 per cent of patients are held for less than a month.

But a small percentage of involuntary detentions last for months or even years — and, prior to the December ruling, patients could technically be held indefinitely because of a provision allowing repeated renewal.

As of January 2014, the most recent available data, 339 involuntary patients had been detained in an Ontario psychiatric facility for six months or longer.

In the extreme case examined by the court, a 56-year-old mentally ill deaf man, who can only be identified as P.S., has been held in an Ontario maximum security psychiatric institution for two decades.

The man’s detention began in 1992, when he was sentenced to 45 months in jail for the sexual assault of a 12-year-old boy. Realizing that the diagnosed pedophile could be a risk to society, the MHA board — officially called the Consent and Capacity Board — decided to detain him when his sentence was completed.

He has been in a maximum security section at Waypoint Centre for Mental Health Care (formerly known as Penetanguishene) ever since, despite repeated recommendations by psychiatrists and mental health experts that he be moved to a less secure facility or even released into the community. As one psychiatrist put it, P.S. is being “warehoused.”

After hearing P.S.’s case, five judges of the Ontario Court of Appeal unanimously ruled that the Mental Health Act lacks sufficient safeguards to protect people detained for long periods. The decision does not come into effect until December because of a 12-month suspension put in place to allow the provincial government time to respond.

Imposing a time limit was the court’s way of “curing the defects” it found in the law that violated the liberties guaranteed in the Charter of Rights and Freedoms, said Mercedes Perez, lawyer for P.S.

While it is possible the government will simply allow the court decision to stand as is — outlawing detentions longer than six months — legal experts say it is more likely it will address the serious issues the judges identified regarding lengthier stays.

“They will have to figure out another way to deal with patients detained for longer than six months,” said Mark Handelman, a lawyer who served for a decade on the Consent and Capacity Board, which oversees involuntary detentions under the Mental Health Act.

That will likely include increased powers for the oversight board, Handelman said. Among the most serious problems the court ruling identified was that the Consent and Capacity Board does not have sufficient powers to ensure the well-being of someone held for a lengthy period.

In P.S.’s case, the board repeatedly stated he should be kept in a lower-security institution, but did not have the legal authority to force institutions to care for him; over the years, several low-security institutions declined to accept P.S.

In contrast, the Ontario Review Board, which oversees cases where an inmate has been found not criminally responsible (NCR) for a crime, has the legal authority to force an institution to accept a patient.

Handelman hopes to see the same powers granted to the Consent and Capacity Board, but points out that there are going to have to be lower-security placements available. That presents an entirely new set of challenges, he says.

“We are truly facing a tsunami-size crisis of caring for people who need care, to whom we owe the obligation to care,” Handelman said. “To some extent it comes down to providing adequate resources to meet society’s obligations to individuals.”

Perez said the government may also opt to develop an entirely different legislative policy where longer detentions of people in mental health emergencies are concerned.

David Jensen, a spokesman for the Ministry of Health and Long-Term Care, said the government is now “reviewing the options available to respond to the court’s decision within the time frame set out in the decision.”

Toronto Star

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