“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.

3 Comments

  1. I agree that there is a lot of pressure on people with mental illness to agree to go inpatient. I was pretty much unaware at the time of my 2nd hospitalization that I could have said no. I had just turned 18 and with the pressure from my loved ones and therapist, I felt I could not do anything but sign on the dotted line. When I figured out that I was 18 and could get out without the docs agreeing, I signed out AMA. I wonder though, if I had been less savvy about questioning the staff or if the staff had lied, would I have ever realized I was not being kept against my will?
    The question of decision making is really interesting. When I was at the worst period in my illness, I made really, really poor decisions that hurt me. When the power to choose was taken away from me, ‘good’ decisions (or decisions that did not allow me to continue certain harmful behaviors) were made for me. However, I never quite internalized those decisions. And when I wasn’t being forced, I went back to making choices that hurt my body and mind. However, when I was given complete freedom (post hospitalization #2), but also had the support and encouragement of a good therapist to make healing choices, I went for the healing choices most of the time. Not all the time, because I was still struggling. But when I made those choices, I internalized them and kept choosing things that helped me, even when my therapist was not around. I think that forced decisions or decisions under pressure will fail to help the patient.

  2. “On the other lies the tragic reality that the mentally ill cannot make rational decisions.”

    And *that* was when I started swearing at the computer …

  3. KJ, I hear you. In one (US) state, I had a lot of trouble with the mental health system. (In another, not so much but that one was enough to make me leery.) I’ve been outright lied to by psychs regarding hospitalization. And I was young, 18 and19. Two psychs lied to me to force me into at least evaluation for a psych hospital, saying that my boyfriend must take me directly to the hospital, that they would call them in advance, and they insinuated that if I didn’t comply, I might well be expelled. (Yes, the school would expel for certain expressions of mental illness. Horrible, but that’s another issue.) At the hospital, I asked the lady at intake… and she said no one had contacted them, that the psychs may not have been truthful.
    And then, another time, there was one psych, state-paid, who cleared me to go home if I wished… but then my boyfriend, who said he’d take me home, took me to his place instead, called my psych who said I needed hospitalization. He took me there, tackling me when I tried to get away. (Come to think of it, as far as I can tell, I was abducted. Never thought of it that way.) At the hospital, I was told I could either sign myself in or they could have me committed. I kind of doubt that, considering the state-paid psych said I could go home, but I was overloaded from the drama and coercion of the day. I felt utterly trapped and may well have been. (The big thing that made me look a danger was the small scar on my neck that I hadn’t intended. I had held something to my neck and made threats specifically so my boyfriend wouldn’t come any closer. Any breaking of skin was accidental.)
    Those times I agree I was mentally ill. That didn’t in the least justify how I was treated or how my choices were removed. (Indeed, I think that was a part of what kept me mentally ill. How is one to behave, feel, and think of oneself as a “normal” person when one is treated so differently, denied that respect, that compassion, that autonomy?) I remember, too, “freedoms” expressed in the hospital. In that jurisdiction, the default is that one may refuse medication. I saw someone exercising this right. Because they did (and only because of this), they were confined to the wing, had every possession removed save the clothes on their back, and a staff member followed them around with the pill cup, hounding them unceasingly. Not ok and the issue of mental illness is superfluous here.
    I’ve also almost been put in a mental hospital for something other than a “purely” mental illness. My neuro-degenerative illness can produce some confusion and memory loss. My neuro was unaware of this (but that’s a different rant) and sent me to psych eval. There, the people wanted to (psych) hospitalize me even though my only symptoms were related to short-term memory loss: no recall beyond a few minutes, trouble keeping on track to a goal (hard when you can’t remember it), and anxiety — which one ought to expect in one who is in unfamiliar surroundings, can’t see the “big picture”, and is being threatened. The only reason I, at 20-some, wasn’t institutionalized was that my parents, over 1000 miles away, made a big fuss and my roommate was willing to say she’d take me home and look after me. (Not that I needed looking after once i was in a familiar setting.) Frighteningly, the state law at that point regarding involuntary commitment included not only danger to self or others but also something about inability to care for oneself. As far as I could tell, with symptoms of an organic illness that hurt no one, I could have been hospitalized indefinitely. The idea shook me to my core. I’m happy to report that the law has since been changed.