Medicine and the Law: the Challenges of Mental Illness

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

It is a pleasure and an honour to be asked to deliver this lecture in honour of the late Mr. Justice Michael O’Byrne. I came to know Justice O’Byrne when, many years ago, I took my first halting steps in the practice of law in Edmonton, Alberta. He was a wise and respected judge, and we were always pleased when we had the luck to appear before him. The O’Byrne lectures exemplify Justice O’Byrne’s concern for the community generally and health care more particularly – both seen through the lens of his chosen profession, the law. I am certain that nothing would please him more than to see the continuance of dialogue and discussion on issues that touch the world of law and of health.

Today I would like to offer some thoughts on a medical-legal issue that is old, yet perennially pertinent; that is common yet extraordinary; that is well-known yet all too often swept under the carpet. I refer to the issue – or more accurately the plethora of issues that surround mental health and the law.

Let me begin with a few facts that demonstrate the importance of the mental health and the law. I’ll start with an anecdote. A couple of years ago I found myself at a dinner at Rideau Hall in honour of recipients of the Order of Canada. I found myself seated next to a police officer who was in charge of the police precinct in a downtown area of Toronto where people were poor and crime was high.

“What”, I asked the officer, “is the biggest challenge you face?”

I expected him to reply that his biggest problem were all those defense-oriented Charter rulings the Supreme Court of Canada kept handing down. But he surprised me.

“Our biggest problem,” the officer answered, “is mental illness.”

My dinner companion went on to explain that a large proportion of the people arrested and brought into his police station were not true “criminals”, but people who were mentally ill. They were people who had committed some offence, usually minor, sometimes more major, for no other reason than the confusion in their disordered minds. Perhaps deranged thought processes led them to perceive unfounded grievances which in turn led to abuse or assault. Perhaps irrational compulsion had led them to shoplift something of which they had no need. Perhaps in their confusion they simply found themselves in the wrong place at the wrong time, gratuitously caught up in a violent quarrel. Or perhaps some internal vision of horror simply made them scream or shout or create such a nuisance that they had to be removed.

Whatever the reason, many such people, the officer told me, were taken into custody and brought to the police station every night. And once there, they posed further problems. The ordinary police processes did not fit well with their situation. How are the police, who are not doctors or nurses, to deal with continuing acts of derangement? How do they read a person their rights when they aren’t capable of listening or comprehending their situation? How do they find them lawyers and arrange appearances before judges? In the end, where the initiating incident is not of great consequence, all that can often be done is to keep the mentally ill person for a few hours and then return him to the street, for the cycle to begin all over again.

We don’t like to talk about mental illness, but as people like this police officer attest, it is a huge problem. According to a 2002 Health Canada report, approximately 20% of individuals will experience a mental disorder of one sort or another in the course of the lifetimes. Of course, the remaining 80% will be indirectly affected by mental illness in family members, friends or colleagues. Statistics tell us that one in one hundred people suffer from schizophrenia, with the normal onset for young men at the age of 19 or 20, for young women a little later. They tell us that 1% of adults suffer from bi-polar disorder and 8% will experience major depression at some time in their lives. Other mental disorders are even more common. For instance, anxiety disorders affect 12% of the population and American data indicates that 6% to 9% of the population are affected by personality disorders. Some of these disorders are extremely prevalent among individuals involved in the criminal justice system. For example, it is estimated that up to 50% of prisoners have anti-social personality disorder – often referred to as psychopathy. ^{Footnote 1}

So the facts are clear. Mental health is a huge and all-too-common problem. It saps our society and our economy. It affects people from every walk of life and every social rank. It is no respecter of persons. And perhaps more than any other health problem, it engages the legal system in a host of different ways.

The most obvious way mental illness impacts on the law and vice versa is in the domain of the criminal law, of which I spoke a moment ago. But mental illness also raises thorny legal problems on the civil law side, relating to incapacity and consent to treatment. Today I would like to canvas these problems with you. As we will see, the law has moved from a position of virtually ignoring mental health to active engagement with the issues it raises. We are at the beginning of a vital and fascinating chapter in the saga of legal medicine – one that engages the major philosophical concerns of the law. One cannot go very deeply into mental health issues without encountering the big questions. When is it just to hold a person responsible for criminal acts? Can the law limit the right to refuse hospitalization and medical treatment, and if so, where do the limits lie? What rights do family and society have to impose treatment? And what obligation do we, the healthy, owe to our less fortunate brothers and sisters?

Before we get to these questions, however, a brief retrospective is in order. The law, as I suggested a moment ago, has not always been much concerned with mental illness. Even a brief glance at history demonstrates that mental illness, like war and poverty, has always been part of the human condition. Yet the history of the law does not show a parallel preoccupation with the rights and responsibilities of the mentally ill and of society toward them. Rather, until the 19th century, mental illness was associated with evil. The mentally ill person was possessed of the devil or evil spirits. The mentally ill person was a witch, consumed by Satan and devoted to his evil works. The mentally ill person was, at very least, a deviant, substandard model of the human species which for some good reason God in His justice had chosen not to endow with normal mental habits. In short, mental illness was largely a religious matter, which the law and medicine could safely ignore. To this general pattern of neglect there was one exception. Where the mentally ill or “different” person was seen as a general threat, the law might be brought in to get rid of her.

It is difficult to draw conclusions about early legal attitudes to the mentally ill because of the lack of records and diagnosis. It is difficult to say with scientific accuracy whether this or that person whom the law chose to condemn to execution was mentally ill. We do know, however, that from medieval times to the 19th century, the law tried and punished, often by death, people who had done no harm, who had broken no laws, simply on grounds that they were different or strange. We also know that people whom our society regards as different or strange often suffer from an identifiable form of mental illness. And so we can reasonably surmise that at least some of those condemned and executed as witches or spiritual deviants were mentally ill.

Consider the way the law treated Joan of Arc. I do not suggest that Joan of Arc was mentally ill. We simply cannot know. Yet certainly, judged by the standards of her time or ours, she was strange. She saw visions. She heard voices. She felt compelled to follow the commands of those voices. And these characteristics led her to act in a way which, judged by the standards of the time, was unthinkable for a woman. Propelled by her voices and visions, she convinced the Dauphin of France to give her an army and led that army to victory against the English oppressor. She became a great hero, indeed a saint in the eyes of many. But her strangeness, even in a day when visions were accepted as religious manifestations, could not go unpunished. And so medicine and the law were called in.

The medical line of inquiry was premised on the assumption that no chaste woman could act as Joan of Arc acted. Therefore, she must have joined the troops to satisfy her carnal impulses. Joan was required to submit to repeated gynecological examinations by noblewomen (the equivalent of modern doctors on matters of women’s health) to determine whether she was truly a virgin. Apparently, she passed all tests without difficulty.

Medical means of condemnation having failed, the heavy guns of the law were brought to bear. Joan of Arc was charged with the practice of witchcraft and brought to trial. The letter of the law was followed to a tee. The trial was conducted with scrupulous attention to the law and its procedures. The proceedings were lengthy and recorded, unusual for the time. Joan of Arc mounted a valiant defence. Yet despite the fact that no one could show she had broken any law or harmed any person except the English, which was permissible, she was condemned and burned at the stake.

Whether Joan of Arc was mentally ill or simply a spirited woman, her story tells us much about how the law and medicine treated perceived mental aberration in the 15th century. Deviation form the ordinary mental and behavioral path was regarded as inherently evil. The task of medicine, insofar as it was called in at all, was to seek out physical reasons for the deviance. The task of the law was to verify it and punish it.

The scientific revolution which began in the 18th century and blossomed in the 19th and 20th centuries brought a new way of looking at mental illness. The old idea that it was caused by the devil or by God gave way to scientific inquiry into the causes of mental illness. The idea that mental illness was somehow the fault of the sufferer was replaced by acceptance of the fact that mental aberration and malfunction were, like physical aberration and malfunction, sicknesses. Given the rudimentary state of brain science, pharmacology and psychiatry, usually little could be done to alleviate the problem. The solution to the medical problem and the perceived threat that mentally ill people posed to society was to create mental institutions where the afflicted could be confined.

The institutional solution for mental illness was a perfect fit for its time, if not for inmates condemned to pass their lives in virtual prison. Despite the new scientific approach to mental illness in enlightened circles, stigma still persisted. One gets a sense of the Victorian attitude toward mental illness from two literary works.

The first is Charlotte Bronte’s great novel, Jane Eyre. We all know the story. Jane, an impoverished young gentlewoman, takes a position as governess to a young girl in a remote Yorkshire country house. Her employer, Mr. Rochester presents as a dour, troubled man. From the beginning a mystery pervades the action: Where is her pupil’s mother? Who is the source of the eery laughter Jane hears at night? In the final and pivotal episode of the novel, the mystery is revealed. Mr. Rochester is married to Bertha Mason, a mad woman, confined in the attic of the house, who in her final act of madness burns down the house and destroys herself with it. What is remarkable, by our lights, is the absence of any sympathy for the deranged woman. She is the villain of the piece, and the reader is made to feel great relief – indeed a sense of justice – when at last she dies. Formally, Mrs. Rochester is mentally ill. Yet stigma of past centuries permeates every aspect of the novel. The afflicted woman is sinister, evil and quite properly imprisoned and cut off from humanity. Her husband is a saint and a martyr to have kept her. Unlike Joan of Arc, Mrs. Rochester meets her end not through the legal process, but her own mad act. But the legal regime that ties a man to such a wife is implicitly damned, just as the law that allows him to imprison her is validated.

Another literary work presents a more positive view of the Victorian approach to mental illness. A couple of seasons ago, The Professor and the Madman by Simon Winchester came out to wide acclaim. It told the true story of a American physician who had a mental break-down after serving as a doctor in the Civil War. Our hero, Dr. William Minor, came from the upper echelons of New England Society. Educated at Yale and devoted to his chosen career, nothing but success seemed to lie before him. When he was suddenly and unexpectedly stricken with schizophrenia, his family helped him secure the best treatment available. He passed through a series of institutions in the United States, and upon discharge made his way to England. There, under the influence of paranoid delusion, he attacked a labourer whom he was convinced was planning to kill him. Dr. Minor was charged with murder, acquitted on grounds of insanity, and sent to Broadmoor, the newly erected facility for the care of the mentally ill. He was treated well. Eventually he was given reasonably pleasant rooms which he furnished as an impressive library. He was never cured of his illness. His decades of confinement were marked by occasionally violent incidents, the last of which, in which he cut off his penis, led to his final decline. Yet he was allowed limited freedom and permitted, indeed encouraged, to pursue a career of scholarship. When the promoters of a comprehensive dictionary of the English language advertised for volunteers to work on definitions of particular words, he responded. Working from his rooms at Broadmoor, he became one of the major contributors to the great work we know as the Oxford Dictionary of the English language. He was confined, yes. But his confinement, unlike that of Mrs. Rochester, respected his human dignity and his ability to contribute to society and enjoy a real life despite his mental illness.

The model of institutional confinement and the mixed values that perpetuated it was imported to Canada, where it remained the dominant way of treating mental illness until the latter part of the twentieth century. Sending the afflicted person to the mental institution was the normal way of dealing with mental illness. Often people spent their entire adult lives in mental institutions, forgotten by their families and unassisted by programs of periodic review. Mental illness still carried great stigma, as attested by the monikers common parlance attached to mental institutions or asylums, as they were known – the loony bin, the nut house, the crazy farm, to mention but three.

Without suggesting that care and treatment were absent, the dark aspects of the confinement paradigm must be acknowledged. People were sometimes confined on improper grounds. In a day before divorce was a practical or acceptable solution to a bad marriage, it was not unknown for sane but upset women to be confined to mental institutions under legal orders obtained by their husbands, on the affidavit evidence of casually convinced doctors. Indeed, one of the first cases I encountered as an articled student in Edmonton began with a call from the wife of a professor at the University of Alberta who had been committed to the mental institution by her husband. The grounds upon which she had been committed were false and we quickly obtained an order for her release and filed for divorce. This woman was my client for the better part of a year. She was sane, rational and one of the most reasonable divorce clients I ever encountered. How many other women, I wondered, had been similarly confined over the years? How many had not been lucky enough or determined enough to free themselves?

Even when mentally ill people were properly confined, they sometimes suffered abuse. The routine use of electric shock treatments in the 1950s and 60s is now seen as having often been abusive. And in the 1920s and 1930s the laws of Alberta, British Columbia and numerous American states provided for the forced sterilization of people considered “mentally deficient” and confined to institutions. ^{Footnote 2} Some courts explicitly accepted the eugenic principles that informed such legislation. For example in the infamous 1927 case of Buck v. Bell, the United States Supreme Court upheld the constitutional validity of Virginia’s statute providing the sterilization of “mental defectives”. ^{Footnote 3} In that case, Justice Holmes, an otherwise highly respected judge, wrote these striking words: “Three generations of imbeciles are enough”. ^{Footnote 4} Once again, we see the law being used not to help people with mental disabilities, but to oppress them.

Alberta’s Sexual Sterilization Act was repealed in 1972. ^{Footnote 5} While it was in force, some 2,800 sterilizations were performed. ^{Footnote 6} We now know that the Sexual Sterilization Act was applied in a discriminatory manner and that it had a disproportionate impact on disadvantaged groups including women and people of minority ethnic backgrounds. ^{Footnote 7} We also know that the statute was not only misguided and based on faulty science, but on many occasions sterilizations were performed without even meeting the legislation’s basic requirements.

Take, for instance, the tragic case of Leilani Muir. In 1955, when she was 10 years old, Ms. Muir was institutionalized in an Alberta training school for the mentally deficient. Although she is a woman of normal intelligence, at the age of 14 she was irreversibly surgically sterilized while told she was undergoing an appendectomy. Ms. Muir’s sterilization and the resulting inability to have children had a profound and devastating effect on her life. In the 1990s Ms. Muir brought an action against the government of Alberta for her improper sterilization and institutionalization. Ms. Muir was eventually awarded a total of $740,780 in compensatory and aggravated damages by the Alberta Court of Queen’s Bench. ^{Footnote 8} Subsequently, class actions were brought on behalf of other individuals sterilized under the Alberta legislation. In the late 1990s, the government of Alberta settled these claims and made payments totalling about $142 million to victims of sterilization. ^{Footnote 9}

In the 1960s and 1970s a reaction against the confinement model of treatment for mental illness took hold. It was fueled by public reaction against the abuses that were coming to light. It was also abetted by a growing understanding of the causes of various mental illnesses and their treatment. Diseases like schizophrenia and bi-polar disorder were linked to chemical changes in the brain, helping to dispel the lingering medieval notion that mental illness was somehow evil. At the same time, new medications offered hope for alleviating the symptoms of these diseases and helping their victims to lead more normal lives.

The result was a move away from automatic institutionalization of the mentally ill. The enormous, secluded compounds housing thousands of patients and conveniently tucked out of public view in the countryside, gradually disappeared. New hospitals for the most serious cases were constructed, often in or near urban centers. Many of the patients formerly housed in institutions were released into society on medication.

While a necessary step, the rapid de-institutionalization of mental health care of the 70s and 80s created new problems. Many newly released patients were ill-prepared for transition to society. Frequently, the medications had unpleasant side-effects. Lacking close supervision, patients all too often stopped taking these medications. The result? Mentally ill people on the street, seemingly without care or hope. Was this really better, many asked, than institutional care?

We are still struggling with the problems flowing from de-institutionalization. They are the sort of problems that lead the police officer I mentioned at the outset to say that the mentally ill are his biggest challenge. The downtown streets of our large cities are peopled by thousands of homeless men and women, many of whom are mentally ill. Once again, mental illness challenges the law. Whereas before the law locked them into institutions, now it must interface with them in society. Whereas once the legal solution to mental illness was simple, now it is complex and difficult and what is more, expensive. Drugs cost money. Decent housing costs money. Hospitals and psychiatrists cost money. With so many competing demands on the public health care budget, the claims of the mentally ill, who still hover on the margins of society, are too easily overlooked.

All of this impacts on the law, both criminal and civil, to which I now turn.

Criminal Law

Generally, to find a person guilty of a crime, the prosecution must establish two elements: (1) the criminal act; and (2) a guilty mind. The second requirement raises problems in the case of a crime committed under the influence of mental illness. The person may not possess the mental faculties necessary to find that he or she had a guilty mind. Put in broad philosophical terms, how can the law hold a person responsible for his or her criminal act, if the person’s mental illness deprived him or her of a functioning, deciding mind? Is not criminal responsibility and punishment appropriate only when “the actor is a discerning moral agent, capable of making choices between right and wrong”? ^{Footnote 10}

Early elaborations of the defence of insanity were cast in relatively narrow terms. The definition that held sway for over a century and still impacts on the criminal law was set out in M’Naghten’s Case. ^{Footnote 11} By all accounts, Daniel M’Naghten suffered from delusions of persecution and was mentally ill. He believed his chief persecutor to be the Prime Minister of England, Sir Robert Peel. M’Naghten went to London with the intention of assassinating Peel. His chosen moment was a procession. However, the plan failed when, in the absence of Queen Victoria, Peel rode in the royal carriage. Peel’s own vehicle was occupied by his secretary Edward Drummond. Mistaking the secretary for the Prime Minister, M’Naghten shot and killed Drummond. M’Naghten was tried for murder, but the jury returned a verdict of not-guilty, on the ground of insanity. Although M’Naghten spent the rest of his life in mental hospitals, the jury’s verdict caused quite an uproar in Victorian London.

In reaction to this case, the House of Lords sent a series of questions relating to the defence of insanity to the judges of England. Lord Chief Justice Tindal’s answers to these questions on behalf of 14 judges are known as the M’Naghten Rules. To establish the defence of insanity, Chief Justice Tindal said, an accused must clearly prove that “at the time of the committing of the act, [he] was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” ^{Footnote 12}

The M’Naghten rules can be criticized in that read strictly, they create a purely cognitive test for insanity that leaves out other mental states that may negate a guilty mind. For instance, the schizophrenic who commits a crime may be acting under the influence of delusions. In his disordered mind, he may be defending himself or the world from some evil menace. Although otherwise capable of rationally comprehending the act, subjectively these delusions may render it virtuous rather than criminal.

The law in Canada has expanded the mental illness defence beyond a merely cognitive test. First, under our law, a mentally ill person will be exempt from criminal responsibility if she is incapable of appreciating the nature and quality of her actions. “Appreciating” involves more than simply “knowing”. Under the Canadian test, “Emotional, as well as intellectual, awareness of the significance of the conduct, is in issue”. ^{Footnote 13} Appreciating the nature and quality of an act involves knowledge of the physical quality of an act and an ability to perceive its consequences, impact and results. ^{Footnote 14}

There is a second aspect to the mental illness defence. In addition to an appreciation of the nature and quality of an act, criminal responsibility requires the ability to know that an act is “wrong”. In this regard, it is not sufficient that an accused person know that a given act is legally wrong, rather she must have the ability to know that it is wrong according to the moral standards of society. ^{Footnote 15} This is not an abstract inquiry about general capacity to know right from wrong. It focuses on the moral wrongfulness of the particular act in the perpetrator’s mind. The accused must have the intellectual ability to tell right from wrong in an abstract sense and “the ability to apply that knowledge in a rational way to the alleged criminal act.” ^{Footnote 16} Thus an accused may well appreciate that her act will result in death and know that to kill is both illegal and morally wrong. However, if by reason of mental illness, the accused is under the influence of delusions and believes – as in my earlier example – that she is acting in self-defense or to save the world from evil, she may be incapable in the circumstances to tell right from wrong and will be exempt from criminal responsibility.

Traditionally, a successful insanity defense gave rise to a verdict of not guilty on account of insanity. When such a verdict was rendered, the trial judge was required to order that the person be held in strict custody until the pleasure of the Lieutenant Governor of the province was known. This system, commonly known as the Lieutenant Governor Warrants system, resulted in the automatic detention of persons acquitted by reason of insanity for a potentially indeterminate period of time, without any hearing and irrespective of whether that person actually posed a threat to society.

In 1991, pursuant to a constitutional challenge brought by Owen Swain, my Court held that the automatic detention of persons acquitted by reason of insanity was unconstitutional. ^{Footnote 17} Mr. Swain had been found not guilty by reason of insanity in relation to criminal charges arising from bizarre assaults on family members apparently committed in order to protect them from evil spirits. Swain was detained under the Lieutenant Governor Warrants system. Because detention was imposed automatically, without any hearing and without the application of any standard or criteria, the majority of the Supreme Court held that the system infringed both the right not to be arbitrarily detained and the right to liberty protected by the Canadian Charter of Rights and Freedoms.

In response to the Swain decision, Parliament substantially re-vamped the Criminal Code provisions dealing with mental illness. For example, we no longer refer to the defense as insanity. Under the new regime, a person may be found not criminally responsible on account of mental disorder. This change in terminology recognizes that mental illness may operate to exempt an accused person from criminal responsibility. It also signifies that we are no longer faced with a stark choice between acquittal and conviction of mentally ill persons. The law now offers a third alternative under which mentally ill offenders are diverted into a special stream where the twin goals of protecting the public and treating the ill offender fairly and appropriately are pursued.

The 1991 amendments also did away with the Lieutenant Governor Warrants system. Accused person’s found not criminally responsible by – or NCR for short – are now dealt with under Part XX.1 of the Criminal Code. Under the new system, we no longer presume that a person found not criminally responsible is dangerous and must be detained. There are now individualized and periodic assessments of the NCR accused’s circumstances. Review Boards have been set up for each province. Three options – or dispositions – are available to a court or Review Board examining an NCR accused’s situation. First, if that person is not a significant threat to the safety of the public, an absolute discharge must be ordered. An absolute discharge frees the NCR accused and bring an end to involvement in the criminal justice system. If the NCR accused does present a significant threat, the court or review board must choose between a conditional discharge or detention in a hospital. Unless and until an absolute discharge is ordered, the NCR accused’s case is examined by the Review Board every 12 months.

In making a disposition, the Criminal Code provides that the court or Review Board must consider the need to protect the public from dangerous persons, the mental condition of the accused, the accused’s reintegration into society and the other needs of the accused. Moreover, the Code further provides that the disposition must be the one that is the least onerous and least restrictive to the accused. If the court or Review Board is unable to positively conclude that the NCR accused is a significant threat to public safety, an absolute discharge must be ordered. ^{Footnote 18}

This new regime has withstood constitutional challenge. In the case of Winko v. British Columbia the Supreme Court of Canada held that the system respects NCR accuseds’ right to liberty protected by s. 7 of the Charter and their equality rights protected by s. 15 of the Charter. ^{Footnote 19} In particular, we found that the scheme interfered with an NCR accused’s liberty no more than strictly necessary to protect public safety. ^{Footnote 20} Similarly, because Parliament’s new regime does not presume dangerousness and provides for individualized assessment and treatment, “it reflects the view that NCR accused are entitled to sensitive care, rehabilitation and meaningful attempts to foster their participation in the community”. ^{Footnote 21} In this regard, the NCR system, although it may treat mentally ill offenders differently, respects their right to substantive equality. In short, the regime established in Part XX.1 of the Criminal Code appropriately balances the need to protect the public from those mentally ill persons who are dangerous and the liberty, autonomy and dignity interests of mentally ill persons.

One can see that the law has changed greatly in recent years in how it treats mentally ill offenders. Arguably it is much fairer and much more effective, geared as it is to rehabilitation. It is a flexible regime, designed to meet the offender’s needs.

A persistent problem, however, is the lack of adequate treatment facilities. Judges complain that they cannot refer mentally ill offenders for the assessments contemplated by the Criminal Code due to lack of hospital facilities. The problem is particularly acute in Ontario where mentally ill offenders are often detained in jail while awaiting hospital beds for a psychiatric assessment. Not infrequently this results in the detention of individuals accused of relatively minor offences who otherwise would never be kept in custody. The consequences are sometimes tragic.

In November 2003, a mentally ill man suddenly died in an Ottawa jail while awaiting an assessment in relation to an assault that actually had occurred while he was in the psychiatric wing of a local general hospital. This unfortunate man was apparently charged in order to facilitate his transfer to a specialized psychiatric hospital. Lack of hospital beds resulted in remand to the local jail of a man who desperately needed both physical and mental medical attention. A Coroner’s Jury looking into this death recently recommended that the practice of detaining mentally ill persons in jail while awaiting assessments should end. ^{Footnote 22} In another Ottawa case, a 45-year-old mentally ill man, who was arrested on minor charges, apparently “fell through the cracks” and was held in jail for six months without being brought to court and without his lawyer or family members being notified. ^{Footnote 23}

The courts in Ontario have also weighed in on this issue. In 2003, an application was brought before the Ontario Superior Court of Justice by two individuals challenging the practice of detaining accused persons in jail pending the availability of beds for psychiatric assessments. In November of last year, Justice Desmarais ruled that this practice was contrary to the relevant provisions of the Criminal Code and offends the right to liberty protected by s. 7 of the Charter and the right not to be arbitrarily detained guaranteed by s. 9 of the Charter. ^{Footnote 24}

In another case that demonstrates that lack of mental health resources also affects children, charges against a mentally troubled 13-year-old girl were stayed in February of last year by an Ontario Provincial Court Judge. Although the judge had ordered an assessment in a psychiatric hospital, the young person in this case was initially sent to a youth detention center and held there for 15 days without counsel, her parents or the court being informed. Eventually, pursuant to further court orders a psychiatric assessment was conducted at a local Children’s Hospital and completed while this young person was in youth detention. According to Justice Dorval, lack of appropriate facilities for persons under age 16 meant that she received only a cursory psychiatric assessment and was given anti-psychotic medication, not for medical reasons, but simply to control her difficult behaviour. In Justice Dorval’s view, this was differential treatment based on age and an infringement of the young person’s equality rights under s. 15 of the Charter. ^{Footnote 25}

Cases like this demonstrate the existence of a resource deficit and that this problem potentially impacts on the constitutionally protected rights of individuals involved in the criminal justice system. The Ontario government must be given credit for recognizing the difficulty and seeking to address it. Last month, the Health Minister announced a $27.5 million per year program to divert mentally ill people charged with less serious offences away from the criminal justice system. ^{Footnote 26} At the same time, the struggle for adequate facilities for mentally ill people under detention orders continues. The situation of mentally ill persons involved in the province’s criminal justice system is being addressed, but still haltingly.

Civil Law

Issues raised by mental illness are not limited to the criminal law. A myriad of difficult ethical and legal problems also arise in the civil justice system: When can a mentally ill person be apprehended and forcibly hospitalized? Can mentally ill people be forced to take medication? These questions engage vital yet conflicting interests. On the one hand lies the liberty of the individual and the right of the individual to make decisions concerning his treatment. On the other lies the tragic reality that often mentally ill people cannot because of their illness rationally make the decisions which may be to their benefit. Surely, their loved ones argue, we should be able to impose treatment at least to the point where they are restored and can make the decision for themselves.

This dilemma is dramatically illustrated by a recent case in our Court, known popularly as the Starson case. ^{Footnote 27} Scott Starson – or Professor Starson as he calls himself – is an exceptionally intelligent and unique person. Although not formally trained in physics, in the past he has achieved substantial accomplishments in this field and received recognition from some members of the academic community. He has published several papers and a Stanford University Professor has even described his thinking as ten years ahead of its time.

However, Professor Starson is also mentally ill. The evidence indicated that his most frequent diagnosis was bi-polar disorder. Professor Starson’s illness has resulted in delusions. For instance, he believed that he was on the leading edge of efforts to build a starship, claimed to be a world-class skier and arm wrestler, insisted that he was the greatest scientist in the world, and professed to be in communication with aliens. Professor Starson’s illness had also resulted in threatening and aggressive behaviour that caused conflict with the criminal justice system. He was detained at the time of hearing in a psychiatric hospital, as a result of a verdict of not criminally responsible on account of mental disorder flowing from charges of uttering death threats against his neighbours. It was also unclear whether he has done any significant scientific work in recent years.

Professor Starson’s physicians believed that medication would likely restore his health and prevent further deterioration. However, Starson objected to medication of any form. Medication, he claimed, dulled his thinking and prevented him from working on his scientific pursuits. Professor Starson’s physician found that he was not capable of making a decision with respect to the proposed treatment. Professor Starson applied to Ontario’s Capacity and Consent Board to review that decision. The Board confirmed the finding of incapacity. According to the Board, Professor Starson was in almost total denial of his illness and that without an acknowledgment of illness, he could not relate treatment information to his own particular disorder. As a result, Professor Starson could not understand the consequences of a decision to either refuse or consent to medication. Similarly, his illness rendered him unable to appreciate the risks and benefits of a treatment decision.

Professor Starson sought judicial review of this decision and was successful in convincing the Ontario Superior Court of Justice and the Ontario Court of Appeal that he was capable to make the decision to refuse treatment. The case was appealed to the Supreme Court of Canada. At issue before my Court was the proper interpretation of the test for capacity under Ontario’s Health Care Consent Act, ^{Footnote 28} 1996 and whether the Board’s decision was reasonable.

The Ontario legislation provides that all persons, even those suffering from mental disorders, are presumptively capable of making treatment decisions. A finding of incapacity requires evidence that the person does not have the cognitive ability to process, retain and understand information relevant to making a decision about treatment. A person will also be incapable if unable to appreciate the reasonably foreseeable consequences of a decision. In other words, a capable patient must be able to understand the relevant information, apply it to his or her personal circumstances and weigh the foreseeable risks and benefits of a decision or lack of decision. Whether the proposed treatment is in the patient’s best interests is not relevant to a determination of capacity.

The majority of the Supreme Court held that Professor Starson was capable under Ontario law to refuse medication. It found that the Board had misapplied the legal test for capacity by improperly allowing its view of Professor Starson’s best interests to influence its decision and the decision to impose treatment was unreasonable in light of the evidence. The key issues were whether the Board erred in finding that Professor Starson was in almost total denial of his illness; that Professor Starson failed to appreciate the benefits of treatment and the risks of non-treatment; and that Professor Starson was unaware that his condition might worsen without treatment.

The majority pointed out that there was evidence that Professor Starson understood that his brain did not function normally, and that the proposed treatment would have a normalizing effect. This, it held, satisfied the decision-making requirements of the Act, and Professor Starson was held entitled to refuse medication. Dissenting, I concluded that the Board’s decision to the contrary was reasonable and supported by the testimony of Professor Starson’s physicians, who concluded that despite his intelligence, his delusions blinded him to that fact that without treatment his prospects for eventual release from psychiatric hospital were very poor.

Views on the decision that Professor Starson could not be compelled to take treatment, mirrored society’s ambivalence on the issue of treating the mentally ill without consent. Some praised the result. Others deplored it. Starson’s mother was reported to be devastated by the Court’s decision, saying that her son’s life and dreams have been destroyed. ^{Footnote 29} 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. ^{Footnote 30} Following his latest Review Board hearing in December of last year, Professor Starson was again found to constitute a real and substantial danger to the public. As a result, the Board ordered his continued detention in a psychiatric hospital. ^{Footnote 31} Professor Starson may well never recover from the illness that afflicts him and may spend the rest of his life in custody or under the significant control of the criminal justice system. Hence the cruel paradox – freedom to refuse “medication” may in fact result in institutional confinement and continued debilitation. Is this true autonomy?

The Starson decision is informed by the high regard our law traditionally accords to personal autonomy – the ability to make fundamental choices about one’s body – and freedom from physical interference. Under the common law, medical treatment – whether physical or mental – cannot be administered without the patient’s consent. To do so constitutes the tort of battery. ^{Footnote 32} As noted by Justice Benjamin Cardozo in a famous old case, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages”. ^{Footnote 33}

Clearly, autonomy is of fundamental importance. However, implicit in Justice Cardozo’s dictum is the fact that autonomy can never be absolute. The law governing involuntary hospitalization and involuntary treatment must balance the autonomy of the patient against conflicting concerns in a way that is respectful of the dignity and needs of mentally ill people. The laws through which this task is accomplished vary from province to province. Historically, the criterion for forcible admission to hospital of mentally ill persons was simply need for treatment. ^{Footnote 34} In the late 1970s, provincial legislatures began to replace the need for treatment criterion with one that permitted involuntary hospitalization based only on dangerousness. Now all Canadian jurisdictions permit the involuntary hospitalization of persons who present a danger to themselves or others. ^{Footnote 35}

The test varies. In some provinces the danger must be of physical or bodily harm. In others, a broader notion of danger is used and the risk of serious mental, emotional, social or even financial harm may justify forced hospitalization. Thus, some Canadian jurisdictions have gone beyond dangerousness as the sole justification for involuntary admission toward a “treatment” model. In British Columbia, Saskatchewan, Manitoba and, to a lesser extent, Ontario, a mentally ill person may be involuntarily admitted to prevent substantial mental or physical deterioration. ^{Footnote 36} The purpose of involuntary detention in these provinces is not simply to separate or quarantine the dangerous mentally ill person from the rest of society, but also to provide treatment for those who need it but who may not, because of their illness, be in a position to rationally assess their illness and the need for treatment.

Powerful arguments are mustered for and against the competing “dangerousness” “treatment” models. Defenders of the “dangerousness” model argue that state restrictions on a person’s physical liberty and autonomy are very grave matters indeed, that can only be justified on the basis of the harm principle. In their view, allowing the detention of an individual who poses no risk of harm to himself or others is an unjustifiable interference with personal freedom. Moreover, they suggest that it discriminates against the mentally ill, for we would never accept the forced hospitalization of individuals whose sole illness is physical. The “treatment” model, they say, represents an unacceptably paternalistic approach to dealing with the mentally ill. ^{Footnote 37}

Advocates of the “treatment” model counter that “dangerousness” is an incomplete basis upon which the health system may be called into play. Predicting dangerousness is a notoriously difficult task and a matter best left to the criminal justice system through an application of the dangerous offender provisions of the Criminal Code. Likewise, it is wholly inappropriate to ask health care professionals, whose role is to treat and heal, to act simply as gaolers for dangerous persons. Moreover, they suggest that using dangerousness as an exclusive criterion means that many individuals who desperately need medical treatment and are not in a position to make a rational decision about receiving it, will not receive it. These persons will often spiral downwards into other problems, like homelessness and substance abuse, criminality and suicide.

The story does not end with hospitalization. Once a mentally ill person is in a safe hospital setting, the question of treatment may arise. Sometimes a person may be mentally ill and present a danger to himself or others but refuse treatment. Some of these individuals – like Professor Starson for instance – may even be found to meet the legal test for capacity to consent to treatment. Another series of problems then arises. Can we ever override a capable person’s decision to refuse treatment? Who determines whether incapable persons should be medicated – physicians, a public official, a judge or perhaps a close relative? And how should that determination be made – do we try to make the decision that is in the person’s “best interests” or should we seek to follow the wishes they expressed when capable?

Once again, the competing values of autonomy, treatment and protection are at play and the law in different provinces has adopted distinct approaches to deal with these issues. Forced treatment of a capable patient raises serious concerns with respect to liberty, physical integrity and equality. As the majority noted in Starson, “The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy”. ^{Footnote 38} Similarly, in Fleming v. Reid, Justice Robins of the Ontario Court of Appeal wrote that “Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs”. ^{Footnote 39} In the case of a mentally ill person who understands all relevant treatment information, as well as the benefits and risks of treatment, yet nevertheless refuses to consent, the interference with autonomy is great indeed.

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.

We are left with two different visions, and no easy answers.

Conclusion

The legal and ethical issues for criminal and civil justice raised by mental illness are enormously difficult and complex. They are far from being solved and we will continue to grapple with them for the foreseeable future. Nevertheless, we can say this: great progress in the treatment of the mentally ill has been made in both medicine and law. Because of advances in medicine, we no longer view the mentally ill as evil, sinful or possessed. We know that they are not deserving of punishment. And, we know that mentally ill people may be successfully treated. As a result, we no longer ignore their needs by simply removing them from view and leaving them to their unfortunate plight.

Advances in medicine have helped dispel assumptions based on ignorance and prejudice. For instance, we now realize that most mentally ill persons are not dangerous. The law has incorporated this by abandoning the presumption of dangerousness reflected in the old Lieutenant Governor Warrants system. The law now treats mentally ill offenders in a more appropriate manner and does not provide for their automatic and arbitrary detention. Instead, we have adopted a system that accords mentally ill offenders as much freedom as is consonant with public safety. Likewise, our law governing hospitalization and consent continues to grapple with the challenges of appropriately balancing the autonomy and dignity of mentally ill persons with their right to treatment and the important objective of protecting the public from dangerous individuals.

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.

If we are successful, then perhaps the next time I have dinner with my police officer friend he will be less concerned with the challenges of dealing with the mentally ill, but complain about some Supreme Court decision. If that is the case, I will be pleased.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
2004 Honourable Mr. Justice Michael O’Byrne/AHFMR
University of Alberta and University of Calgary
February 17 and 18, 2005