Daily Archives: 22 October, 2010

“The Challenge of Mental Illness in the Justice System” – Part 2: Civil Court

This is the second in a three-part post about a talk given by the Chief Justice of the Supreme Court of Canada, The Right Honourable Beverley McLachlin, about the interactions between people who are mentally ill (her term) and the justice system of Canada. Part 1 briefly discussed the history of the treatment of people with mental illness in Canada, and then described the current situation with regards to the criminal court system. This part will discuss the interactions between people with a mental illness and the civil courts. (Everything in quotes is from my notes, which are not verbatim.)

One of the anecdotes the Chief Justice opened her talk with was about an incident that occurred when she was articling. She discussed receiving a phone call from a woman who had been institutionalized, and told her that she only had two minutes to be on the phone. “I’ve been locked up, and I need to get out,” she whispered. The Chief Justice related how this woman had been forcedly institutionalized by her very respectable husband, who decided she was “overly emotionally, somewhat hysterical, had convinced the doctor to sign the papers. The authorities had come and she was taken to the mental institution.”

I got the impression – perhaps wrongly – that the Chief Justice wanted us to see this woman as someone who had been wrongfully institutionalized because she wasn’t actually mentally ill. She told the anecdote as part of the history of institutionalization, having just described it as a way “to get rid of someone you didn’t want, like a wife giving you trouble.” [s.e. smith wrote about this a bit when reviewing Fingersmith at this ain’t living.] This is a pretty common narrative when people discuss fear of institutionalization, and you’ll often see this story play out in pop culture. It gives the impression that forced institutionalization isn’t wrong, except when it’s someone who’s totally sane. The mentally ill, on the other hand, can be treated without care.

The focus of this section of her talk was on the “difficult ethical and legal problems” arising in the civil court. “On the one hand lies liberty of the individual, and the right of the individual to make decisions. On the other lies the tragic reality that the mentally ill cannot make rational decisions. Surely, their loved ones argue, we should be able to impose treatment to the point where they can have the capacity to make rational decisions about his or her treatment.”

Again, the Chief Justice focused on the change in how people with mental illness can legally be treated as a result of the Charter. She touched briefly on the history of forced hospitalisation, and how this had originally been forced treatment as well. Now, apparently, people are only forced into hospitalisation if they’re considered a danger to themselves or others. (From what I’ve gathered talking to people in Canada who have been hospitalised as a result of mental illness, there’s a lot of pressure to agree. This can vary from loved ones saying “We just want what’s best for you!” and the attendant guilt-related issues, to “if you don’t agree we’ll call the police and you can go to the asylum instead”.)

In describing “the issue being whether the person possess sufficient cognitive ability to make rational treatment decisions about his or her health”, the Chief Justice focused on the particulars of one case, referred to as the Starson Case. [There’s a brief overview of it on Wikipedia, and here are some follow-up news articles and discussion.]

Again, according to my notes:

At the time of the action Professor Starson was detained in a psychiatric hospital as a result of a finding of Not Criminally Responsible. The physicians believed he needed medication, but Professor Starson refused. His physicians found that he was not capable of making a decision with respect to his medical treatment.

He applied to the Ontario Capacity and Consent board to review that decision. The Board agreed with the doctors. He was in almost total denial of the illness (Wikipedia tells me he was diagnosed with Bipolar Disorder) so could not relate information to his disorder.

The matter was appealed to the courts and the lower courts in Ontario ruled he was capable of making decisions. This case then went to Supreme Court and the issue was the interpretation of the test for capacity. The majority ruled that Professor Starson had the capacity to make a choice and accordingly the Board’s order was overturned.

The story doesn’t end there. After the Supreme Court decision in 2003, his condition deteriorated. In 2005, his treating physicians found him incapable of managing his care. With his mother providing substitute consent, doctor’s began medicating. In 2007 he was discharged to outpatient status. In 2009, he was still contesting the decision to be forced into treatment.

The Chief Justice then went on to describe the debate about the treatment of people who are mentally ill as being between those that argue that the law should never permit mandatory treatment, and those who argue that mandatory treatment should be expanded to cover more instances than it does. In Canada, she said, “Liberty can be curtailed only exceptionally – when there is genuine risk of harm to his or herself or others, or when a person is cleary incapable of making decisions necessary for medical care.”

One of things I noted in this section of her talk was the very distancing language the Chief Justice used throughout. While at one point she did describe how we can feel sympathy for Professor Starson’s fight to determine his own treatment versus that of his mother’s fight to get him the treatment she felt he needed, most of the time the Chief Justice spoke as though no one in the audience would ever be touched by these decisions. As I said in the first part of this, I’m uncomfortable with a circle drawn around people with a mental health condition, and another around people who work in the legal or medical profession, with no overlap. The whole thing read a bit too much like “you can tell who’s crazy by looking at them, so I know none of you are.”

There is one more part to this discussion, which focuses on the mentally ill as victims of the justice system.

Signal Boost: British Columbia: The BCCPD invites organizations to our ‘Get Prepared’ workshop.

Via Email

Fires, storms, H1N1, floods. The BC Coalition of People with Disabilities’ Emergency Preparedness Program can help.

The Get Prepared workshop will use videos, demonstrations, personal stories, and recent Lower Mainland experiences to examine emergency preparedness. We will explore the best approaches that community organizations can use in designing emergency plans that focus on people with disabilities. Krasicki & Ward Emergency Preparedness will bring a display of emergency supplies.

Learn:
– The leading approach to emergency preparedness: Functional Needs
– How to conduct safety drills and evacuations
– Tips by and from people with disabilities on what’s needed
– How to integrate emergency planning into your organization

FREE 37-page handbook: “Workplace Emergency Planning for Workers with Disabilities”

Time and Date: 12:30 – 5:00 pm, November 25th, 2010
Location: Blusson Spinal Cord Centre, 818 West 10th Avenue Vancouver BC
Cost: $65 – handbook and light refreshments included.
Hosted by the BC Coalition of People with Disabilities.
Registration Information

Registration for ‘Get Prepared’

Date: Thursday, November 25th 12:30 – 5:00 p.m.
Location: Blusson Spinal Cord Centre, 818 West 10th Ave, Vancouver
Cost: $65 includes light refreshments and “Workplace Emergency Planning for Workers with Disabilities”, a 37-page handbook.

Please click here to download the registration form and poster PDF.

The registration deadline is November 15th. Please contact sam@bccpd.bc.ca or 604-875-0188 for more information.

Unfortunately I cannot answer any questions about this event.

Recommended Reading for 22 October, 2010

Gentle reader, be cautioned: comments sections on mainstream media sites tend to not be safe and we here at FWD/Forward don’t necessarily endorse all the opinions in these pieces. Let’s jump right in, shall we?

At Astrid’s Journal, Multiplicity Myths:

I wrote this collection of myths a few years ago, intending to create a multiplicity page on my website. That never got to be, but I still like this list. I have edited some parts where appropriate.

At Tunisia Online News, Tunisian-Italian project to benefit blind people in Gafsa:

A project as part of a Tunisian-Italian partnership to promote the status and integration of the disabled in society, will soon lead to the building of a house for visually impaired and blind people in Oum Larayes in the governorate of Gafsa (South western Tunisia).

From the Los Angeles Times in the United States, Georgia settles suit on confinement of disabled people:

In a settlement that will serve as a model for enforcing the rights of the disabled, the Justice Department reached an agreement with Georgia to move many patients with mental illnesses and developmental disabilities out of the state’s notoriously dangerous psychiatric hospitals and into the community.

From 3News.co.nz, NZ offer world first service for deaf:

Until today, [15 October] New Zealanders who are hearing impaired and deaf have had to use a fax machine to make contact with 1 -1 -1.

[…]

At midday a system was switched on which allows the seven thousand members of the hearing impaired and deaf community to text for help.

From Pro Bono Australia, Judge Caps Court Costs on Disability Case -PIAC:

A decision in the Federal Court is expected to have national ramifications for public interest litigants according to the Public Interest Advocacy Centre, PIAC.

[…]

The Public Interest Advocacy Centre was acting on behalf of Julia Haraksin, who tried to book a seat on a Murrays coach from Sydney to Canberra.

Bizarrely enough, I’ve taken a Murrays bus from Sydney to Canberra myself and was just thinking about their lack of accessibility yesterday! Here’s hoping Julia Haraksin wins the case.

That’s all for this time. Send your links to recreading[@]disabledfeminists[.]com. Let us know if/how you want to be credited.