Late in 2014, the Ontario Court of Appeal decided in PS v Ontario, 2014 ONCA 900 that the Consent and Capacity Boards, the civil body used to review the holding of persons with mental illness in psychiatric institutions, was unconstitutional because it did not provide adequate powers to the CCB to protect the liberty interests of the patients.  The judgment was stayed for one year to give the Ontario Legislature an opportunity to redraft the legislation.  The legislature has until December 23 to amend the legislation, or it will become impossible to hold individuals in a psychiatric institution for longer than 6 months.

Ontario’s Bill 122 is that amendment.  It is currently awaiting third reading.

A quick review of the legislation shows the following major changes:

  • There is to be a greater involvement of Registered Nurses in panels
  • CCB will have the power to order that a person be
    • transferred to a different psychiatric facility
    • placed on a leave of absence
    • given a different security level and privileges
    • be allowed to visit the community
    • receive certain kinds of services
  • CCB will also have the power or order an independent assessment of the patient.

The granting of the ability to transfer, and change the conditions of a person’s custody in psychiatric care, goes directly to the requirements of the ONCA in PS v Ontario.

PS v Ontario represents a watershed moment for civil mental health law in Canada.  For a very long time there have been two more or less separate streams of jurisprudence with regard to mental health: that dealing with civil matters, which seemed to focus on the protection of the patient’s health and community safety, and those dealing with criminal matters, which balance health and safety with the liberty interests of the accused.  The Ontario Court of Appeal has said that, at least for patients held for a long period of time, the rules applying to criminal detainees with mental health issues should apply also to those are held in the civil system.

This is important, because without this change, there were fewer protections for the liberties of individuals who were NOT accused of or convicted of committing a crime.  In a very literal sense, the rights of people with mental illness were (and are) treated with less respect than the rights of the criminally accused.  I’m hoping to see similar changes in the near future in Alberta.

Categories: Mental Health Law