Falling through the Cracks:
The Quebec Mental Health System
Katherine Brown and Erin Murphy*
The authors, through their experiences as volun-
teers at a women’s shelter, examine the systematic iso-
lation and segregation of the mentally ill and the role of
law in continuing this reality. Underlying the current
legislation in Quebec is a tension between two rights:
liberty and treatment. While the goal of the mental
health system is treatment, legislation tends to be very
rights-oriented, focussing on protection and control.
The current law on involuntary commitment and treat-
ment has adopted a pure danger standard, with the re-
sult that treatment is imposed in only the most extreme
cases, when individuals are considered a danger to
themselves or others.
The present standard fails to account for such
factors as emotional and financial stability, and further
reinforces the mistaken view that the mentally ill are
dangerous. The subjective interpretation that follows
from this standard leads to criminalization. Other stan-
dards, such as the welfare standard, are also flawed,
maintaining inappropriate stigma.
The authors argue for limited involuntary con-
finement, increasing its efficiency by including a ca-
pacity/competency standard. Other options, such as the
Ulysses contract, out-patient committals, and stronger
community support mechanisms, are suggested as
means to combat paternalistic State interference, while
at the same time promoting treatment.
Les auteures, s’inspirant de leurs expriences en
tant que bdn6voles dans un centre d’h~bergement pour
femmes, 6tudient l’isolement et la sdgr6gation syst,-
matiques des personnes atteintes de maladie mentale,
ainsi que le r6le que joue le droit dans ]a perpltuation
de cet 6tat de choses. Une tension entre deux droits,
soit le droit h la libert6 et le droit aux soins, sous-tend ]a
legislation qu~b&oise actuelle. Le but du syst~me de
sant6 mentale est essentiellement de fournir des soins,
alors que ]a legislation, 6tant plutdt orient6e vers les
droits, vise la protection et le contr6le. Puisque ]a loi
actuelle portant sur les soins et ]a garde en 6tablisse-
ment sans consentement comprend un test de dangero-
sitd stricte, les soins sont impos6s uniquement dans des
cas extremes, lorsque l’individu prsente un danger
pour lui-m~me ou pour autrui.
Le test actuel ne tient pas compte de facteurs tels
que la stabilit6 affective et financiare, et renforce ]a
perception erone que les personnes atteintes de mala-
die mentale sont dangereuses. L’interpr~tation subjec-
tive qui en r~sulte mne h la criminalisation. D’autres
tests, tels que le test de bien-atre, sont 6galement impar-
faits, et perpltuent le stigmate.
Les auteures pr~conisent la garde en dtablisse-
ment sans consentement limit6e, et suggarent d’ajouter
un test d’aptitude et de comptence pour amdliorer son
efficacit6. D’autres options, permettant de lutter contre
toute ingdrence 6atique patemaliste, tout en encoura-
geant les soins, sont proposes, telles que le contrat
d’Ulysse, la garde de malades en consultation exteme,
et des meilleurs m6canismes de soutien communau-
taire.
. Katherine Brown, B. Comm., C.A., B.C.L, LL.B. (McGill, 1999), of the Ontario Bar, and Erin
Murphy, B. Comm., B.C.L, LL.B. (McGill, 1999), of the New York Bar. This Note is dedicated to the
staff and women of Chez Doris, our inspiration for this paper.
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 45 McGill L. 1037
Mode de rdf6rence : (2000) 45 R.D. McGill 1037
1038
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
Introduction
I. Mental Health and Indigent Women
II. Current Legislative Regime
A. Quebec’s Regime for Civil Commitment
1. General Overview
2. Confinement
a. Preventive Confinement
b. Temporary Confinement
c. Court-Authorized Confinement
d. Conclusion
Involuntary Civil Commitment Standards
1.
2. The Danger Standard in Quebec
Introduction
B.
a. Legislation
b. Case Law
3. The Danger Standard in Ontario
a. Legislation
b. Case Law
C. Critique of Involuntary Committal Standards
1. The Danger Standard
a. Stigma
b. Vagueness
c. Predictability
d. Criminalization
e. Revolving Door Syndrome
2. The Welfare Standard
a. Stigma
b. Vagueness
c. Civil Liberties
3. Conclusion
D. The Right to Refuse Treatment
1. Drug Therapy: Benefits and Side Effects
2. Clinical Views on the Right to Refuse Treatment
3. Analysis of the Law
4. Capacity and the Right to Refuse Treatment
5. Functional Approach to Capacity
6. Determination of Criteria Used to Assess Capacity
7. Conclusion
2000] K BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1039
II1. Future Legislative Options
A. The Role of Capacity
B. Ulysses Contract
1. The Application of Ulysses Contracts in Quebec
C. Out-Patient Committal
D. Community Network
Conclusion
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MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
Introduction
The law, as a reflection of societal values, has contributed to the marginalization
and the isolation of those afflicted with mental illness. The following passage from
the judgment of Lamer C.J.C. in R. v. Swain is instructive:
The mentally ill have historically been the subjects of abuse, neglect and dis-
crimination in our society. The stigma of mental illness can be very damaging.
The intervener … [Canadian Disability Rights Council] describes the historical
treatment of the mentally ill as follows:
For centuries, persons with a mental disability have been systemati-
cally isolated, segregated from the mainstream of society, devalued,
ridiculed, and excluded from participation in ordinary social and po-
litical processes.
The above description is, in my view, unfortunately accurate.’
The law can also act as an instrument of social change and can be used either to
continue the segregation and discrimination of this group or to change the way people
view the mentally ill. Thus, the values protected in mental health law and the weight
ascribed to such values can have a significant impact on shaping or changing attitudes
towards those suffering from mental illness.
The dominant values at stake in mental health law are the individual’s right to lib-
erty, enshrined in the Canadian Charter of Rights and Freedoms,2 the right to inviola-
bility and integrity of the person as articulated in the Civil Code of Qudbec
(“C.C.Q:’),’ and the Quebec Charter of Human Rights and Freedoms,’ and the right of
the individual to safety, treatment, and relief from suffering. The tension between the
degrees of protection to be afforded each of these rights is a recurring theme in this
area of the law. Nowhere is this tug-of-war more evident than among the homeless
and indigent.
Part I of this paper provides a brief description of the strong correlation found
between the indigent and mental illness. In particular, our discussion deals with indi-
gent women, as our personal experience was gained volunteering with a women’s
shelter in Montreal. Working with such individuals, we became determined to under-
stand why these women were not being treated, why these women were falling
through the cracks.
‘[1991] 1 S.C.R. 933 at 973, 63 C.C.C. (3d) 481.
2
7 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
Health L. Can. 11 at 13.
‘Art. 3.
4 R.S.Q. c. C-12 [hereinafter Quebec Charter].
‘See eg. M. Bay, “Treatment and the Mental Health Act: A Review Board Perspective” (1991) 12
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1041
In Part II we conduct a thorough analysis of the present-day mental health law in
Quebec. The purpose of this analysis is to investigate, through the current legislative
regime, the danger standard, the right to refuse treatment, the role legislation is pres-
ently playing within the mental health system, and the role legislation should be
playing in the future. At present, the legislation in Quebec is very rights-oriented, and
for the most part, only those individuals who voluntarily seek help will be treated. As
our empirical observations indicate, it is rarely the case that individuals will voluntar-
ily seek help.
Part III of this paper addresses the future of the mental health system in Quebec.
The goal of the mental health system is treatment. One of the major regulatory com-
ponents of the mental health system is legislation, yet the objective of this legislation
is not treatment; it is the protection of individual rights. Consequently, we asked our-
selves how legislation can respect civil liberties and at the same time work towards
helping the system achieve its goal of treatment. We argue that capacity is the key for
ensuring that involuntary confinement remains very limited but also leads to treat-
ment, not mere detention. We determined that the involuntary committal standard
should only be applied respecting persons proven incompetent, for only such indi-
viduals may be treated against their wishes. This will enable hospitals to remain cen-
tres of treatment and not become detention centres. Fortunately, involuntary hospitali-
zation is not the only option available to provide treatment in Quebec’s mental health
system. There are legislative and other means available that should be explored. These
include the Ulysses contract, out-patient committals, and a strong community net-
work. Such endeavours would greatly limit the violation of individual rights while at
the same time allowing for more effective treatment.
I. Mental Health and Indigent Women
Through volunteer work at a women’s shelter in Montreal, we were able to ob-
serve first-hand the overwhelming obstacles indigent women must overcome in cop-
ing with the simple tasks of daily life. Moreover, the majority of the women at this
shelter suffer from some form of mental illness: paranoid schizophrenia, depression,
and obsessive-compulsive disorders are just a few of the illnesses encountered. This is
not an uncommon situation. A newswire reported that “Toronto’s hostel division esti-
mates close to 80 per cent of the city’s homeless women suffer from mental illness …
Women’s Residence manager Anabella Wainberg … [stated] ‘More and more, if I see
someone who’s normal in the shelter, I wonder why she’s here.”‘”
It is very difficult to deal with or analyze a problem that entails the homeless in
Canada due to “the lack of consistent and reliable data on both the number and com-
6 M. Philp, “Mental Illness Afflicts Many Homeless” Canadian Press Newswire (19 October 1997),
online: NEXIS (News, WIRES).
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MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
position of the homeless population.” Nonetheless, there have been studies on the
correlation of homelessness and mental illness in Quebec. The following are some re-
sults of these studies:
Dans une 6tude intitul~e TraitJ des probImes sociaux, 6tude codirig~e en 1995
par Fernand Dumont, Simon Langlois et Yves Martin, on apprend que, “sui-
vant la d6finition ]a plus restrictive, Montr6al compterait entre 10 000 et 15 000
personnes sans abri”… Toujours dans cette 6tude qu’a publide L’Institut qu~b6-
cois de recherche sur ]a culture, on peut lire ceci: “La prdsence des maladies
mentales s6vbres parmi la clientele itin~rante de Montral est importante: dans
l’ensemble, de 40% A 45% souffrent d’une maladie mentale quelconque, dont
10% d’un trouble s6vre comme la schizophr6nie ou un trouble bipolaire:”
Des dtudes am6ricaines et qu~b6coises (dont celle du Dr. Lamontagne) esti-
ment qu’entre 23% et 50% de ces personnes Res sans-abri]. sont aux prises
avec de tr s s&ieux probl~mes de sant6 mentale.9
Les problmes de sant6 mentale sont aussi importants chez les deux sexes. De
27% A 40% (selon restimation faible et forte) des personnes interrog6es en
sont atteintes. Ce sont surtout les plus de 30 ans des deux sexes qui ont de tels
probl~mes.”‘
It is important to note that while these studies concentrate on the specific link
between homelessness and mental health, the broader link is between poverty and
mental illness. In a 1988 study performed in Quebec, it was concluded that
parmi les individus ayant recours aux services externes de psychiatrie, les per-
sonnes sans emploi et les b6n6ficiares de l’aide sociale sont surrepr~sents. On
trouve 6galement parmi les patients un nombre sup6ieur d’usagers venant des
milieux urbains et, par rapport A la population gn6rale, une proportion plus
grande de personnes n’ayant pas poursuivi d’6tudes postsecondaires (une car-
actdristique souvent lide A la pauvret6).”
Thus, the night shelters service the homeless, and the day shdlters service the home-
less and indigent, but both shelters must confront mental illness on a continuous basis.
‘T. O’Reilly-Fleming, Down and Out in Canada: Homeless Canadians (Toronto: Canadian Schol-
ars’ Press, 1993) at 11.
“S. T’ruffaut, “De plus en plus lourd” Le Devoir (11 June 1998) Al.
“G. Racine, Les maisons d’h76bergement pourfemmes sans abri : un role de prvention secondaire
en santd nientale (Quebec: Gouvernement du Qudbec, Conseil qu6b6cois de la recherche sociale,
1990) at 6.
“‘ Quebec, Minist&e de la Main-d’euvre et de la S6curit6 du revenu, Les sans-abri au Quibec:
6tude aploratoire (Quebec: Minist&e de la Main-d’oeuvre et de la S6curit6 du revenu, 1988) at 117.
” J.-B. Robichaud et al., Les liens entre la pauvretd et la santd mentale : de l’exclusion a l’6quitj
(Montrdal: Gadtan Morin, 1994) at 64.
2000] K BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1043
II. Current Legislative Regime
A. Quebec’s Regime for Civil Commitment
1. General Overview
The regime in Quebec governing civil involuntary commitment consists of (i) ar-
ticles 26-31 of the C.C.Q. (“Confinement in an Institution and Psychiatric Assess-
ment’); (ii) articles 26, 36.2, and 762-784 of the Code of Civil Procedure (“C.C.P”);
and (iii) An Act respecting the protection of persons whose mental state presents a
danger to themselves or to others,” which came into effect on June 1, 1998, and has
replaced the Mental Patients Protection Act.’3 The Protection Act emphasizes the pri-
macy of the C.C.Q. provisions in the area of mental health law. The enactment of the
Protection Act has not given rise to a radical change in this area of the law. The main
thrust of the reform has been to harmonize the above-mentioned sources of mental
health law, most notably with respect to the procedures relating to involuntary con-
finement of persons whose mental state poses a danger to themselves or others.”
The recent legislative reform was based to a large extent on the proposals set out
in the Draft Uniform Mental Health Act,” a document designed to harmonize the leg-
islation in the area of civil commitment across Canada. This initiative (and presuma-
bly the legislation modelled after this document) was met with criticism from the psy-
chiatric community. One medical writer was of the opinion that the document was
overly legalistic and that the thrust of the UMHA was to make it more difficult to hos-
pitalize and thereafter to keep patients in hospital, which will lead to discharging pa-
tients under “questionable circumstances that are not dictated by good clinical judg-
ment.” Similar sentiments have been expressed by a Montreal social worker involved
in crisis intervention. He described the law in Quebec as one of exception, one that is
‘2 S.Q. 1997, c. 75 [hereinafter Protection Act].
“R.S.Q. c. P-41 [hereinafterMPPA].
, Protection Act, supra note 12, s. 1. This section states that the Protection Act complements the
codal provisions governing confinement and psychiatric assessment.
” D. Payette, Confinement of Persons Whose Mental State Presents a Danger (Montreal: McCarthy
Tdtrault, 1998) at 2; A.-M. Veilleux & H. Allard, “Les recours et la reprdsentation du patient psychia-
trique selon la nouvelle Loi sur la protection des personnes dont l’6tat mental prdsente un danger pour
elles-memes ou pour autri” in Barreau du Qu6bec, Service de la formation permanente, Diveloppe-
ments recents en droit de la santJ mentale (1998) (Cowansville, Qc.: Yvon Blais, 1998) 147 at 150
[hereinafter “Developpements ricents”].
1 Uniform Law Conference of Canada, Draft Uniform Mental Health Act (Committee on Mental
Health, 1986) [hereinafter UMHA].
7 A.D. Milliken, “The Uniform Mental Health Act: A Clinician’s Questions” (1986) 7 Health L.
Can. 76 at 80.
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MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
not focussed on treating the patient and will only serve to hospitalize those in desperate
need.”
One legal commentator stated that the regime in Quebec is focused primarily on
the control and protection of and from persons who pose a danger to themselves or
others and not on the treatment of such individuals.’9 The following changes in the
Protection Act provide a strong indication of the legislature’s intent to send a strong
message that the justification for civil commitment is not based on the need to treat
the person affected. The Protection Act introduces the term “confinement”, which,
among other applications discussed below, is used to replace the concept of “close
treatment” present in the MPPA, thus focussing on control and not treatment. Moreo-
ver, the title of the Protection Act eliminates reference to mental patients, a term that
may have connoted a treatment component.
2. Confinement
a. Preventive Confinement
There are three possible forms of confinement under the new regime. The. first,
preventive, is regulated under the Protection Act and can be invoked by a physician,
without the intervention of the court, if the patient’s mental state causes him or her to
meet the “grave and immediate” standard. Under the Protection Act, the police have
been given express powers to transport such persons to a hospital facility in certain in-
stances. It should be noted, however, that when a family member, as opposed to a cri-
sis intervention worker, requests that the person be taken to an institution that may
hold the person under the preventive requirement, the officer must have “good reason
to believe that the mental state of the person concerned presents a grave and immedi-
ate danger to himself or to others.”” This requirement adds a measure of protection by
ensuring that individuals are not taken against their will for arbitrary reasons.
Section 7 of the Protection Act states that a physician and not necessarily a psy-
chiatrist may authorize the preventive confinement, and that a physician cannot hold a
person under such confinement for longer than seventy-two hours without obtaining a
court order.2’ No psychiatric examination is to be undertaken during this period. This
is supported by the wording of section 7, which states that the confinement is “prior to
” Personal communication with a social worker who works at a downtown Centre local de services
communautaires providing crisis intervention to itinerant people with mental illnesses.
‘9 J.-P. Mdnard, “L’impact de ]a Loi sur la protection des personnes dont l’6tat mental pr.sente un
danger pour elles-m mes ou pour autrui sur le consentement aux soins” in Diveloppements ricents,
supra note 15, 237 at 239. See also Payette, supra note 15 at 2.
w Prntection Act, supra note 12, ss. 6, 8(2).
21S. 7 provides an extension if the period ends on a Saturday or non-juridical day.
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1045
psychiatric examination”.” This interpretation is consistent with the first paragraph of
article 27 of the C.C.Q., requiring the physician to make an application to the court
for an order to confine a person temporarily for the purposes of a psychiatric assess-
ment. Further, the third paragraph of section 7 of the Protection Act refers to the ex-
piry of preventive confinement after seventy-two hours unless a “court has ordered an
extension of the confinement for psychiatric assessment” While this paragraph refers
to assessment and not examination, neither the C.C.Q. nor the Protection Act contem-
plates the conduct of a psychiatric examination for purposes other than as part of a
psychiatric assessment bearing on confinement or continued confinement. Moreover,
as preventive confinement is based on dangerousness and not treatment, there is no
scope for an examination to be performed other than as part of an assessment. Thus,
no examination may be commenced until a court order is obtained. For practical pur-
poses, this form of confinement is used in emergency situations, where the time delay
involved in obtaining a court order may present serious safety risks to the person af-
fected or others.
b. Temporary Confinement
Once a court order has been obtained, it would appear that a person, once held
under preventive confinement, would now fall under the category of being temporar-
ily confined, and the provisions of the C.C.Q. and the C.C.P. would apply equally to
those who were initially held under preventive confinement as to those who are ad-
mitted to a facility after the issuance of a court order. This period of confinement is
regulated primarily by articles 28 and 29 of the C.C.Q. Under these provisions, the
person must undergo a psychiatric examination, and if the physician concludes that
confinement is not necessary, the person must be released. If the physician concludes
that confinement is necessary, a second physician must carry out a separate examina-
tion. If this physician determines that the confinement is not warranted, the person
must be released. If both physicians concur that confinement is required, authorization
of the court must be sought within forty-eight hours (presumably of the date at which
the second physician made his or her determination) to confine a patient pursuant to
article 30 of the C.C.Q. In any event, a person cannot be held under temporary con-
finement for the purposes of a psychiatric assessment for longer than seven days.’
A review of the Protection Act and articles 784 and 859(1) of the C.C.P. reveals
two avenues from which an individual may contest the temporary confinement. Sec-
tion 21 of the Protection Act gives a person who is dissatisfied with the continuance of
confinement or with a decision made under the Protection Act the right to contest that
decision before the Administrative Tribunal of Quebec. While temporary confinement
does not appear to be a decision made under the Protection Act, it is submitted that the
Payette, supra note 15 at 15 is of the view that whether an evaluation may be performed is a mat-
ter of debate.
2- According to art. 29 C.C.Q., the report must be filed with the court within seven days of the court
order.
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[Vol. 45
change in status from preventive to temporary confinement is continued confinement
under the Protection Act as contemplated in the third paragraph of section 7, thus
giving rise to the application of section 21. Nothing in the new regime alters the per-
son’s right to appeal the court order authorizing the psychiatric assessment as outlined
in the above-mentioned articles of the C.C.P. While this may be more of a theoretical
than a practical concern with respect to temporary confinement, it is important to note
that this situation may arise in dealing with contestations of continued confinement
that have been authorized by a court pursuant to article 30 of the C.C.Q. It remains to
be seen how this jurisdictional issue will be resolved.
c. Court-Authorized Confinement
Pursuant to article 30 of the C.C.Q., a court will not authorize confinement with-
out two psychiatric assessments recommending such a course of action. When a court
order is granted, the judgment must set the length of the term of confinement. How-
ever, subsection 12(1) of the Protection Act requires the release of the person if, in the
opinion of the attending physician, confinement is no longer justified. This determi-
nation is made without regard to the term outlined in the judgment. It is the absence of
dangerousness that will precipitate this release, irrespective of whether the physician
is of the opinion that the person may benefit from continued treatment.
The Protection Act, at section 10, requires periodic examinations to be performed
to evaluate the continuing need for confinement. The first such evaluation is to be
made twenty-one days following the court order, even if the court order has stipulated
a longer term of confinement. Subsequent reviews, if necessary, must be performed
every three months thereafter.
In reviewing the new provisions of the Protection Act and the C.C.Q., some
commentators are of the opinion that reading these provisions together raises a possi-
ble interpretation problem: a court order is no longer required to continue the con-
finement past the terms authorized in the original judgment. 4 Such an interpretation
appears to go against the spirit of the new regime, which is intended to enhance and
protect individual rights in the face of involuntary committal. To get around such pos-
sible arguments, they argue that the examination as required by section 10 is one that
is authorized by the court and pursuant to section 4 must be delivered to the court.
Such an interpretation would result in the court authorizing all renewals, thus ensuring
that this important review mechanism is not lost when dealing with confinement re-
newal.’ It would seem incongruous to impose at the initial stage the rigorous standard
2′ Veilleux & Allard, supra note 15 at 161. The authors argue that art. 30 deals solely with confine-
ment pursuant to a psychiatric assessment, which is interpreted to mean two examinations; the Pro-
tection Act, supra note 12, s. 10, however, states that only one examination is needed to renew con-
finement, thereby precluding extensions of confinement from the application of art. 30 and the neces-
sity of obtaining a court order.
” Ibid. at 162.
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1047
of court review of the recommendation to confine, but then to drop this safeguard at
the time of renewal, when judicial review is equally if not more important in protect-
ing the liberty interests of the person affected.
d. Conclusion
The legislation governing confinement is not designed to be a mental health pol-
icy but a means of control and protection when people’s mental state poses a physical
safety risk to themselves or others. It is not designed to catch those slipping through
the cracks. Moreover, it is designed to ensure that limitations to liberties arise in nar-
rowly defined circumstances, and that the deprivation of freedom is not conducted in
an arbitrary manner and lasts only as long as the conditions justifying its imposition
are present.
As the danger standard is the sole criterion used in Quebec to justify involuntary
confinement, a detailed analysis of this standard is necessary to ascertain if it does in
fact attain the goal of minimal deprivation of liberty. Further, the formulation of the
danger standard in other provinces and the use of other standards, such as the welfare
standard, will be examined to determine if there are more desirable alternatives to the
standard currently applied in Quebec.
B. Involuntary Civil Commitmept Standards
1.
Introduction
Robertson has observed that “beginning approximately in the 1940’s, the scope of
civil commitment was significantly expanded by the introduction of the ‘welfare
test’. 121 Consequently, the need for treatment became the goal of legislation. As a re-
sult, people “could be hospitalized and treated on a compulsory basis if this would
protect or promote their best interests and welfare.”-” By the late 1970s, the general
view was that both society and legislation gave considerable power to the medical
community, often to the detriment of the patient’s rights. As a result of this recogni-
tion, all Canadian provinces strove to adopt new legislation that emphasized protec-
tion of civil liberties over beneficial medical treatment. This marked a return to the
danger standard, used in the nineteenth and early twentieth centuries, when the con-
cept of dangerousness played a large role in involuntary hospitalization.’ Upon a
closer analysis of the change, it became apparent that while the courts in certain
26 G.B. Robertson, Mental Disability and the Law in Canada (Scarborough: Carswell, 1994) at 386.
7Ibid.
23 Ibid. at 385.
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MCGILL LAW JOURNAL / REVUE DE DROn”DE McGILL
[Vol. 45
provinces did interpret these acts restrictively,’ others simply treated the change as a
reformulation of the welfare standard.’
Various questions arise in determining the appropriate scope of involuntary civil
commitment. For instance, in deciding between the narrow standard of protection
from danger and the wider standard of need for treatment, a balance must be struck
between two conflicting powers of the state: the police power and the parens patriae
power. A second problem arises in defining the notion of danger. That is, should it be
limited to physical violence or extended to include financial deterioration and the in-
ability or unwillingness to provide oneself with the necessities of life?
2. The Danger Standard in Quebec
a. Legislation
In the Protection Act, there are two danger standards: where a person is confined
without a court order (preventive confinement) and where a person is confined with a
court order. The former danger standard is more stringent, since there is no court in-
volvement at all. Rather, the individual is confined solely on the assessment of the
physician. In the Protection Act, if the patient’s mental state presents a grave and im-
mediate danger to that patient or others, owing to mental health, section 7 comes into
play:
A physician practising in such an institution may, notwithstanding the absence
of consent, place a person under preventive confinement for not more than sev-
enty-two hours in a facility maintained by the institution, without the authori-
zation of the Court and prior to psychiatric examination, if he is of the opinion
that the mental state of the person presents a grave and immediate danger to
himself or to others?’
The same danger standard is articulated in section 8 with respect to the police power
to take an individual against that individiual’s will to an institution.
The danger standard articulated in the Protection Act for confinement by court
order is found in section 1. It states:
See M. v. Alberta (1985), 63 A.R. 14 (Q.B.). The court held that the legislative concept of “dan-
ger” was meant to address serious risk of physical harm and not emotional or mental harm. The dan-
ger standard applied was very narrow-it was a pure danger standard.
‘” Robertson, supra note 26 at 395. See also Re Producers and the Mental Health Act (1984), 5
D.L.R. (4th) 577, 8 C.RR. 142 (P.E.I.S.C.) [hereinafter Re Mental Health cited to D.L.R.. The PE.L
Supreme Court interpreted the notion of “safety” to address not only physical injury but also “mental
or psychiatric symptoms as well as the provision of creature comfort in appropriately congenial
physical surroundings” (at 589). Hence the legislation did not result in a pure danger standard. There
was an implicit welfare standard as well.
‘ Protection Act, supra note 12, s. 7 [emphasis added].
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1049
The provisions of this Act complement the provisions of the Civil Code of
Qudbec concerning the confinement in a health and social services institution
of persons whose mental state presents a danger to themselves or to others, and
the provisions concerning the psychiatric assessment carried out to determine
the necessity for such confinement 2
This danger standard is wider in scope, since a court order is required. Confinement
of the individual is not based solely on the discretionary power invested in a physi-
cian; rather, the court adds another step in the process that must be satisfied before an
individual can be confined against his or her will. An individual confined under court
order will be confined for a minimum of twenty-one days before a review and under
temporary confinement for a maximum of seven days.
Consequently, the language used in Quebec is “danger to himself or others” and
“danger that is grave and immediate to himself or others.” The word danger, however,
is very ambiguous. There is no definition of this concept in either the Protection Act
or the C.C.Q. Moreover, because the Protection Act and the C.C.Q. itself are so re-
cent, case law provides little authoritative guidance. It is not yet known how the courts
will interpret the danger standards quoted above.
It is worth noting, however, that the MPPA,33 the predecessor of the Protection
Act, also had two danger standards. Upon examination of the MPPA, it becomes evi-
dent that there is no real difference between its danger standards and those articulated
in the Protection Act. Certain writers appear to be of the opinion that the Protection
Act made no substantive changes to the danger standard. Thus, despite the legislative
changes, case law pertaining to the MPPA’s danger standards may well be a useful
guide as to how the courts will interpret the danger standards in force today.
b. Case Law
While there is virtually no case law relating to the preventive confinement danger
standard of the MPPA, the case law is abundant with respect to section 11 of the
MPPA, which articulates the close-treatment danger standard which is analogous to
section 1 of the Protection Act. The Commission des affaires sociales (“CAS”) has
faced the issue of maintaining the close treatment of an individual on many occasions.
The CAS is asked by the legislation (previously the MPPA and now the Protection
Act) to answer the following question: Might the mental condition of the individual
endanger his or her health or security or the health or security of others? To provide
an adequate response, the CAS must in turn then ask: What is health and security? Is
it solely the individual’s physical health and security? Or does it include the individ-
ual’s emotional and mental health? Does it include financial security or marital secu-
rity? If the CAS interprets the danger standard as being concerned with only the
physical elements of violence or injury, then it is our submission that Quebec is a pure
32 bid, s. 1 [emphasis added].
33 Supra note 13.
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danger standard jurisdiction. If the CAS interprets the danger standard more widely,
Quebec is a mixed jurisdiction including both a danger and a welfare component.
In Protection du malade mental-l the CAS determined that due to the physical
violence against his mother in the past, the present day threats against his mother, and
his reaction of self-mutilation in stressful situations, the appellant’s close treatment
should be maintained. This is a perfect example of a pure danger standard: danger of
physical violence to others and physical injury to self. Another strong example of the
pure danger standard is found in Protection du malade mental-4.’ Here the CAS
maintained the order for close treatment against an individual who was a repeat pedo-
phile offender. The CAS held that this individual posed a great danger to the health
and security of others.
The CAS, in Protection du malade mental-I,’ again maintained the close treat-
ment, The patient, upon arrival, demonstrated psychotic behaviour and suffered from
delirium and paranoia. He was improving with his medication treatment. However, in
the past, when he was released from hospital, he refused to take his medication and,
as a result, there was a rapid deterioration in his improved behaviour and he became
very menacing. Moreover, despite the improvement from the medication, he was still
suffering from very active delirium. Consequently, the CAS concluded that the patient
did presently pose a danger to others.
In Protection du malade mental-6 the CAS held that despite the fact that the
patient exhibited obsessive and rigid personality traits and paranoia tendencies, and
had an interest in articles regarding violence as a solution to problems, his mental
state did not presently pose a risk to society. It was quite evident that the patient re-
quired treatment, but the CAS was not willing to confine him to close treatment un-
less he posed a present risk to society or to himself. The risk that the CAS appears to
be referring to is the risk of immediate physical violence, harm, or injury, hence a
pure danger standard.
”
The question that must now be addressed is whether there is a welfare element in
this danger standard. In Protection du malade mental-2″‘ the CAS released the ap-
pellant even though her psychiatrist was concerned because the patient was not capa-
ble of organizing her life and that the patient could not afford lodging. The CAS held,
“La lois n’impose pas la cure ferm6e pour assurer ou consolider le traitement ou pour
soustraire le patient aux contraintes socio-6conomiques de la vie en soci6t6. L’6tat de
dangerosit6 est le seul crit&e retenu par la loi..” This case demonstrates that financial
‘4[1992] C.A.S. 239.
[1997] C.A.S. 271.
[1990] C.A.S. 243.
(1992] C.A.S. 937.
[1992] C.A.S. 243.
‘4Ibid. at 245.
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1051
insecurity and inability to organize one’s life do not permit the CAS to continue close
treatment.4
In Protection du malade mental-2″ the CAS held that the appellant, although
suffering from mental illness, should be released despite the concerns that she would
not eat well, would not be taken back home by her family, and had a tendency to exer-
cise poor judgment that could put her at risk. Here it is evident that security pertains to
the absence of imminent physical harm, not security in the sense of food, clothing,
and lodging. Moreover, the term “health” does not seem to include mental or emo-
tional well-being; rather, it is concerned with the physical health of the individual. The
CAS did not feel that the fact that the patient would not eat well was sufficient to con-
stitute an endangerment to the health of the patient. Consequently, it is reasonable to
conclude that the endangerment to the physical health has to be a serious one, such as
self-mutilation, and the danger must be likely to occur in the immediate future.
The CAS held in Protection du malade mental-2″ that the appellant, who suf-
fered from bipolar depression, should be kept under close treatment because his lith-
ium medication had not yet been stabilized. This could be interpreted as a need for
treatment/welfare-based decision. However, this is not clear, since a minimum stan-
dard of medical care would dictate that a patient remain hospitalized until his or her
level of medication is regulated.
Based on the above analysis of the interpretation of section 11 by the CAS, the
standard established in Quebec is one of danger in the sense of physical injury or
physical harm to oneself or others. Quebec does not share the interpretation expressed
in Re Mental Health, where the notion of safety was held to include “such things as
the alleviation of distressing physical, mental or psychiatric symptoms as well as the
provision of creature comfort in appropriately congenial physical surroundings.” In
each of the Quebec cases noted above, the patient was suffering from mental illness.
All patients were in need of treatment. Nonetheless, the CAS was not willing to con-
fine the individuals any longer if they did not pose an immediate danger to the health
or security of themselves or others. Health and security means physical health, not the
mental and emotional health of the individual. Indeed, the mental health of each pa-
tient was suffering, but that is not what the CAS is investigating. “Security” means se-
curity of the physical body, not security of financial status, of marital status, or of
housing status. Moreover, the CAS appears to be looking for a serious endangerment
to the physical health and physical security of oneself or others in the immediate future,
not something that may result over time. The danger standard for close treatment is very
narrow. It should be noted that this analysis is based on the case law of the CAS that was
published. Many decisions of the CAS have not been published. Nonetheless, the con-
4’ See also Protection du malade mental-5, [1992] C.A.S. 632.
41 [1982] C.A.S. 290.
42 [1991] C.A.S. 935.
4
1 Supra note 30 at 589.
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clusions of this analysis have been confirmed by interviews with psychiatrists and social
workers who deal with this issue daily.
Therefore, since section 11 of the MPPA has been interpreted narrowly by the
CAS, it is probable that the new danger standards articulated in the Protection Act will
be interpreted in the same fashion. That the CAS has incorporated the “immediate
danger” element of preventive confinement in cases dealing with the broader close-
treatment danger standard is a strong indicator that the CAS desires to confine indi-
viduals under only the most pressing of circumstances. Hence, the design of the leg-
islation, as noted above, does attain its goal that limitations to liberties arise in nar-
rowly defined circumstances.
The result of such a standard is that the fundamental rights of these individuals
are rarely, if at all, violated. Another result of such a standard is that only those indi-
viduals who, due to their mental state, are blatantly dangerous persons are ever con-
fined and thus have the potential to be treated.
3. The Danger Standard in Ontario
a. Legislation
The Mental Health Act” provides that a person may be admitted as an involuntary
patient in the following circumstances:
15(1) Where a physician examines a person and has reasonable cause to be-
lieve that the person,
(a) has threatened or attempted or is threatening or attempting to cause
bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has
caused or is causing another person to fear bodily harm from him or her, or
(c) has shown or is showing a lack of competence to care for himself or
herself,
and if in addition the physician is of the opinion that the person is apparently
suffering from mental disorder of a nature or quality that will likely result in,
(d) serious bodily harm to the person,
(e) serious bodily harm to another person, or
(f) imminent and serious physical impairment of the person,
the physician may make application in the prescribed form for a psychiatric as-
sessment of the person.”
4 R.S.O. 1990, c. M.7.
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1053
The legislation is extremely demanding (although an amendment process is underway
to make it less so). It is much more restrictive than that of Quebec or Alberta. A phy-
sician may detain an individual for seventy-two hours under section 15. After that
time, the patient must be released unless the attending physician, as per paragraph
20(1)(c), feels that the patient is suffering from a mental disorder of a nature or qual-
ity that will likely result in (d), (e), or (f) noted above. If a patient is readmitted under
paragraph 20(1)(c), the minimum length of time the patient can be detained is two
weeks. Moreover, subsection 20(2) requires that the physician who confines an indi-
vidual pursuant to section 15 cannot be the same physician who readmits the patient
under paragraph 20(1)(c). As in Quebec, there is a two-step process involved in de-
taining an individual for a long duration.
The danger standard in Ontario is, semantically, very rigorous. The question re-
mains whether the courts are equally demanding in interpreting this legislation.
b. Case Law
In G.(G.) v. Swamy, “the patient was severely delusional and believed, amongst
other things, that she could communicate with people … by means of mental telepa-
thy.”7 The patient wanted to be released, but due to her history, it was believed that
she would stop taking her medication if she were discharged from the hospital. The
court’s medical evidence suggested that this would happen “in a matter of weeks”, re-
sulting in a serious deterioration in her condition, whereby she would probably then
be a danger to herself and perhaps to others. The court held that “the patient’s dis-
charge from the psychiatric hospital would likely result in imminent and serious
physical impairment”‘ Here, it appears that imminent can include “in a matter of
weeks”. This is a very broad interpretation.
In another 1986 case, Foran v. O’Doherty, the Review Board held that the pa-
tient, suffering from schizophrenia, should be committed because he had a “history of
aimless wandering on the streets, an occasional contact with marijuana, an inability to
handle money and a slovenly lifestyle “‘ Fitzgerald J. reversed the decision of the Re-
view Board. He noted that “[tihe whole scheme of the review process under the
4. Ibid., s. 15(1) [emphasis added]. Amendments are being made to the Mental Health Act by Bill
68, An Act, in memory of Brian Smith, to amend the Mental Health Act and the Health Care Consent
Act, 1996, 1st Sess., 37th Leg., Ontario, 2000 (lst reading 25 April 2000) [hereinafter Bill 68]. Para.
(f) of s. 15(1) is being amended by the striking out of “imminent and” at the beginning. S. (1.1) is
being added to s. 15 to the effect that a physician will have more bases permitting him or her to make
application for a psychiatric assessment.
4 (1986), 36 A.C.W.S. (2d) 247 (Ont. Dist. CL) [hereinafter Swamy].
” As quoted in Robertson, supra note 26 at 392.
4
1 Ibid.
4 [1986] OJ. No. 2146 (Dist. CL), online: QL (OJRE).
“‘Ibid. at 3-4.
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Mental Health Act is to ensure that patients do not become prisoners of the system.””
The court, while it did indicate that continued hospitalization would be beneficial,
concluded that the medical evidence was insufficient to conclude that the patient’s re-
lease would result in “imminent and serious” physical harm.”
Nonetheless, the interpretation in Swamy was confirmed in 1989 by Subotic v.
Roopchand’ Here the patient’s mental state had, from lack of food and medication,
progressively diminished. She suffered from paranoid schizophrenia and when out of
the hospital became reclusive and tended to smoke in bed. The hospital sthff stabilized
her and she was accepting her medication. Due to her history of not taking her medi-
cation, McGarry J. articulated that he felt that he could not ignore her past refusals to
take her medication and her past inability to feed herself properly. He stated that the
proper analogy for “imminent” is “impending”. He concluded that he had no doubt
that her release would not be in her best interest, as serious physical impairment
would be impending. This is a very different holding than that which was found in
Protection du malade mental-I, ‘ where the patient’s close treatment was maintained
because the refusal to take one’s medication would result in a “rapid deterioration” not
simply deterioration “in a matter of weeks”, and Protection du malade mental-2,5′
where the patient’s inability to feed herself was not a sufficient concern to continue to
commit her under close treatment.
The term “likely” has also been the subject of some confusion. In Azhar v. Ander-
son,’ the patient suffered from paranoid schizophrenia. He believed that he was being
devoured by cobras and heard voices that told him to kill his brother’s children. Here
Locke J. held that the patient should not be released. He struck down the appellant’s
arguments that the nature of his mental state was not “likely” to result in serious bod-
ily harm to himself or to another person. The appellant argued that “likely” means
“highly probable”. However, Locke J. interpreted “likely” to mean “probable”. 7 With
respect to serious bodily harm, he concluded that there was “a likelihood that it could
happen:”‘ As Gerald Robertson points out, “[T]he judge’s conclusion that there was a
likelihood that an attack on the children could happen seems inconsistent with his
view that the statute requires the bodily harm to be ‘probable.”‘” The broader inter-
pretation of the term “likely” has been confirmed in a 1989 decision of Doyle J. In
‘ibid. at 5.
2Ibid. at 7. Fitzgerald L stated, “Beneficial as it might be for the patient to remain in the hospital, I
cannot find convincing evidence that he is, if released, likely to sustain imminent and serious physical
impairment as a result. If he is to continue to remain it must be on a voluntary basis” (ibid.).
‘(14 July 1989), Elgin 701/89 (Ont. Dist. CL) [hereinafter Roopchand].
‘ Supra note 36.
” Supra note 37.
(1985), 33 A.C.W.S. (2d) 521 (Ont. Dist. Ct.).
As quoted in Robertson, supra note 26 at 394.
59Supra note 56.
“Supra note 26 at 394.
2000] K BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1055
Mack v. Royal Ottawa Hospital,’ the appellant had a chronic psychotic disorder.
Doyle J. upheld the Review Board decision that the patient should remain at the in-
stitutional facility. He concluded that he believed there was “a serious problem here
and a very strong possibility [leading] to the conclusion that … there would likely be
serious bodily harm if this person was not kept in a particular institution.” This is
broader than the requirement that something must be probable. The Ontario District
Court decisions indicate a preference for a broader interpretation of the word
“likely”.-
In summary, while Ontario’s legislation is semantically stricter, in practice the
courts are interpreting the legislation in broader terms. In reviewing the above-noted
case law, it would appear that the courts of Ontario have put a welfare twist on the
danger standard. Cases like Swamy’ and Roopchand” indicate that the courts are not
only determining if the patients/appellants are dangerous to themselves or others.
Rather, they are also investigating the patients’ eating and hygiene habits. Moreover,
courts do not require that the danger be immediate but are willing to look further into
the future in assessing an individual’s potential impending dangerousness. Conse-
quently, it is submitted that Ontario is a jurisdiction that has a mixed standard, but
tends to lean more towards the welfare standard.
C. Critique of Involuntary Committal Standards
As noted above, the present day legal system offers two tools to involuntarily
commit individuals suffering from mental illness: the danger standard and the welfare
standard. The legal doctrine supporting the danger standard is the doctrine of police
power, that being the power of the State to protect society from harm, whereas the le-
gal doctrine supporting the welfare standard is the parens patraie power, that being
the State’s power to help those who cannot help themselves. The return to the danger
standard in several jurisdictions is a response to the criticism that the welfare standard
had been too paternalistic. Nonetheless, it is essential that neither standard be blindly
accepted. Rather, one must investigate the benefits and costs of each of these stan-
dards.
1. The Danger Standard
Proponents of the danger standard argue that this standard is the lest means to re-
spect civil liberties. They seize upon the philosophy of John Stuart Mill that “the only
purpose for which power can be rightfully exercised over any member of a civilised
(1989), Ottawa 30176/89 (Dist. CL).
6′ As quoted in R. Chandrasena, “The Ontario Mental Health Act: A Review of Court Decisions on
Involuntary Committal” (1991) 11 Health L. Can. 97 at 98-99.
62 Ibid. at 99.
‘ Supra note 46.
‘4 Supra note 53.
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community, against his will, is to prevent harm to others” ‘ The police power is the
only way to respect such a philosophy. They also argue that the danger standard is a
more objective standard and provides less discretionary power to the medical profes-
sion than the welfare standard, and consequently there is greater consistency in invol-
untary commitment decisions.
The danger standard established in most jurisdictions is a mix of both the police
power “danger to others” and the parens patriae power “danger to self’. That this
standard concentrates on “danger” rather than “best interest” appears to give it a more
narrow focus than the welfare standard. It is from this narrowness that the danger
standard derives its status as the standard that respects civil liberties. Nonetheless,
there are several indicia that the danger standard is quite flawed.
a. Stigma
While the danger standard may respect the civil liberties of those individuals suf-
fering from mental illness, at the same time it reinforces the historical, mistaken belief
that mental illness is equated with dangerousness. This is a grave error, for there ap-
pears to be little, if any, correlation between mental disorder and violence: “The most
frequent outcome of studies trying to correlate the two is that the level of violence
among people with mental disorders is the same as, or less than, the level of violence
in the general public.’ The only other group within society that is subject to a danger
standard is those individuals charged with a criminal offence. The danger standard for
the mentally ill serves as a preventive measure because the medical profession be-
lieves they will be dangerous. There is no strong evidence supporting such a belief. It
is based on the intuition of the doctors. As Carla McKague has noted,
If we are justified in applying preventive detention to the apparently violent
mentally disordered person, why do we hesitate to use it in the case of the ap-
parently violent person without a mental disorder? Why would most of us con-
sider it wrong to lock up the members of a motorcycle gang, much as they
might frighten us, before they have committed an offence?67
Consequently, not only does the danger standard state that mental illness equals dan-
ger, it also appears to state that those suffering from mental illness are potentially
more dangerous than the general public. The danger standard continues to provide so-
65J.S. Mill, “On Liberty” in R.B. McCallum, ed., On Liberty and Considerations on Representative
Government (Oxford: Basil Blackwell, 1946) 1 at 8.
C. McKague, “Involuntary Hospitalization: Are New Mental Health Laws Necessary? A Patients’
Rights Perspective” (1988) 9 Health L. Can. 15 at 15. See also J. Brennan, “Mentally M1 Aggressive-
ness-Popular Delusion or Reality” (1964) 120 Am. J. Psy’try 1181; D. Hastings, “Follow-up Results
in Psychiatric
Illness” (1958) 114 Am. J. Psychiatry 1057; L Rappeport & G. Lassen,
“Dangerousness–Arrest Rate Comparisons of Discharged Patients and the General Population”
(1965) 8 Am. J. Psychiatry 776.
6 McKague, ibid.
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1057
ciety with misinformation that only reinforces and adds to the stigma already endured
by individuals suffering from mental illness.
b. Vagueness
While proponents of the danger standard argue that the concept of danger re-
places the total subjectivity of psychiatric labels with a higher degree of certainty and
objectivity, the above analysis of the various danger standards in Canada does not ap-
pear to support this view. The interpretation of the danger standard varies from prov-
ince to province. Moreover, even within each jurisdiction, the way in which it is inter-
preted can also vary, depending on the judge ruling on the matter. The fact is that
“best interests” is very subjective and asks the physician or psychiatrist to impose on
the patient what he or she feels is best. “Danger”, like “best interests”, has no precise
definition or accurate determination.
c. Predictability
Even if the danger standard could be constructed to avoid vagueness, it is still
open to criticism because it cannot be predicted accurately. The predictability of
dangerousness has been a highly contested question.’ This doubt was best summa-
rized by Steadman and Cocozza when they stated, “Whether magic or science, the
prediction of dangerousness by psychiatrists represents an excellent example of pro-
fessionals who have exceeded their areas of expertise for whom society’s confidence
in their ability is empirically unjustified”
A serious error that psychiatrists make in predicting dangerousness is the selec-
tion of false positives. A false positive is someone who is confined but does not, in
fact, become dangerous. The problem is one of over-prediction. Studies have shown
that predictive methods used yield sixty to seventy percent false positives, resulting in
at least two persons being mistakenly confined for every one that does become dan-
gerous.0 Other studies have brought the ratio up to as high as twenty to one.”
“See e.g. CJ. Frederick, ed., Dangerous Behavior: A Problem in Law and Mental Health (Rockville,
Md.: U.S. Dept Of Health, Education & Welfare, 1978); HJ. Steadman, ‘Predicting Dangerousness
Among the Mentally Il1: Art, Magic and Science” (1983) 6 Int’l J. L. & Psychiatry 381; SJ. Pfohl,
“From Whom Will We be Protected? Comparative Approaches to the Assessment of Dangerousness”
(1979) 2 Int’l J. L. & Psychiatry 55; T.W. Harding & H. Adserballe, ‘Assessments of Dangerousness:
Observations in Six Countries; A Summary of Results From aWHO Coordinated Study” (1983) 6 Int’l
I L. & Psychiatry 391; HIJ. Steadman, “The Right Not to Be a False Positive: Problems in the Appli-
cation of the Dangerousness Standard” (1980) 52 Psychiatric Q. 84 [hereinafter “The Right Not to Be a
False Positive”].
JJ. Cocozza & HJ. Steadman, “Prediction in Psychiatry: An Example of Misplaced Confidence
in Experts” (1977) 25 Soc. Prob. 265 at 275.
70 B. Rubin, “Prediction of Dangerousness in Mentally III Criminals” (1972) 27 Arch. Gen. Psy-
chiatry 397 at 398.
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H.J. Steadman concluded that “[r]ather than asking what evidence is there that
psychiatrists, or other clinicians, cannot accurately predict dangerous behavior, what
evidence is there that they can? When the question is phrased in this manner, the an-
swer in unequivocal. There is none:” If the danger standard is the legal system’s re-
sponse to the desire for protection of civil liberties, and the central role of that re-
sponse is highly controversial, it is doubtful that the danger standard can be regarded
as a just and reliable response to this need.
d. Criminalization
While the danger standard has been applauded for its limited inclusiveness, there
is a price that is paid for its narrowly defined parameters. That price is the criminali-
zation of the mentally ill. It has been observed in studies that “arrests would take
place when persons were not sufficiently mentally disordered to be admitted by the
hospital, but were too public in their deviance to be ignored.” Consequently, while
the danger standard gives the mentally ill the right to be delusional and not confined
in a mental institution, this does not eradicate the likelihood that they will, nonethe-
less, be confined to jails. Where should these people be confined if they are mentally
ill, not dangerous, but their behaviour exceeds the community’s tolerance? Most peo-
ple, even supporters of the danger standard, would probably prefer that the mentally
ill be placed in hospital, for there is something repugnant about the thought of pun-
ishing someone for something that is, due to illness, beyond his or her control.
e. Revolving Door Syndrome
Another result of the narrowly defined parameters of the danger standard is the
revolving door syndrome. The revolving door symbolizes that in many cases, the pa-
tient, who is involuntarily committed, falls into a cyclical pattern of confinement and
release within the mental health system. Take the following example. One day, Mrs.
Y, a paranoid schizophrenic, goes out and buys a gun and says she is going to shoot
the next alien she sees, since they have been chasing her for years. This is a situation
where she would most likely be preventively confined in Quebec under section 7 of
the Protection Act. Mrs. Y allows the doctors to examine her and she also consents to
receiving treatment. After the seventy-two hour confinement, Mrs. Y is much calmer
and she has agreed to continue with her medication. Mrs. Y is no longer posing an
immediate danger to herself or others. She is released. After a couple of days, Mrs. Y
is feeling so good she decides she does not need her medication anymore. Two weeks
later, the police find Mrs. Y wandering the streets with a knife, threatening to kill her-
” J.J. Cocozza & H.J. Steadman, “We Can’t Predict Who is Dangerous” (1975) 8:8 Psychol. Today
32 at 35.
n “The Right Not To Be A False Positive”, supra note 68 at 96.
“‘L.A. Teplin & N.S. Pruett, “Police as Streetcorner Psychiatrist: Managing the Mentally 11” (1992)
15 Int’l J. L. & Psychiatry 139 at 147.
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K. BROWN AND Eo MURPHY- QUEBEC MENTAL HEALTH SYSTEM
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self because she cannot stop the voices. Mrs. Y is admitted again for another seventy-
two hours and the cycle continues.
The aim of the danger standard is to prevent harm, and it does achieve that goal
for seventy-two hours. But in most cases, after that period, the individual has calmed
down and cannot be considered dangerous, and therefore can no longer be confined.
Some would consequently argue that the danger standard deals only with the symp-
toms of the problem but not with the problem itself.
2. The Welfare Standard
The parens patriae doctrine has an extremely broad jurisdiction. It was described
in E. (Mrs.) v. Eve as follows: “The parens patriae jurisdiction is, as I have said,
founded on necessity, namely the need to act for the protection of those who cannot
care for themselves. The courts have frequently stated that it is to be exercised in the
‘best interest’ of the protected person, or again, for his or her ‘benefit’ or ‘welfare’.”
This is the foundation upon which the welfare standard is based. The principle of
helping others is a predominant one in the Canadian political and legal system. For
example, consider the vast range of social programs designed to help the unemployed,
the poor, and the physically or mentally challenged. Proponents of the welfare stan-
dard argue that it is society’s responsibility to help those who cannot help themselves.
Through the welfare standard, people who need treatment are at least within the con-
fines of an institution that will be able to give them treatment if they consent. Moreo-
ver, the availability of food and shelter will raise the standard of living for many of the
patients. Proponents argue that, unlike the situation under the danger standard, there is
no falling through the cracks.
Nonetheless, like the danger standard, the welfare standard has many flaws. They
are discussed briefly below.
a. Stigma
The welfare standard maintains and possibly adds to the stigma surrounding
mental illness. Being institutionalized only heightens this stigma. Individuals, after
they have been institutionalized, often find it difficult to find employment and ac-
commodation. Moreover, many of their family members and friends treat them differ-
ently following the confinement. Society still fails to recognize that mental illness is
an illness like any other.
b. Vagueness
As noted above, “best interests” is exceptionally broad. It is an extremely subjec-
tive notion. Consequently, an individual can be confined involuntarily based solely on
‘4 [1986] 2 S.C.R. 388 at 426, 31 D.L.R. (4th) 1.
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the subjective decision of a physician or psychiatrist. There is nothing concrete or de-
terminative directing the decision of these professionals.
Parens patriae grants huge discretionary power. This discretionary power is often
the impetus behind criticisms of the paternalism it tends to embody. There are several
examples demonstrating the abuse which has resulted from such authority. They in-
clude the “depatterning” experiments conducted by Dr. Ewen Cameron at the Allan
Memorial Institute in Montreal between 1950 and 1965,’ and the case of the “Duples-
sis Children”, which took place between 1939 and 1961.7′
c. Civil Liberties
The major reason behind the shift from the welfare standard to the danger stan-
dard is that the welfare standard did not respect the rights of individuals. The welfare
standard has often been viewed as involving an excess of State-authorized interfer-
ence in an individual’s life. Too much deference was given to the medical community
and little respect was given to the individual. The welfare standard created a huge di-
chotomy between mental illness and physical illness. Those suffering from the latter
were permitted to make their own decisions despite their illness. Those afflicted with
the former, once labelled mentally ill, were at the mercy of the medical profession.
Given that strong individual rights have been entrenched in all areas of the law, it is
unlikely that a standard which is not compatible with or does not respect patient’s
rights will or should form a part of the future direction of the law.
3. Conclusion
While the welfare standard does possess the respectable desire to “do good” like
many other social programs in Canada, it is understandable why there was a revolu-
tion leading to the adaptation of the danger standard. The welfare standard was in di-
rect violation of civil liberties, and it granted too much discretionary power to the
medical profession. But as noted above, the danger standard also presents problems.
Hence, attempts must be made to develop standards for involuntary committal that
protect individual liberties, yet do not abandon these individuals to their illnesses.
Moreover, in developing the future course of the law in the area of mental health, we
must examine whether there are alternatives to involuntary committal that may be
more successful in balancing these often conflicting objectives.
” Dr. Cameron performed experiments in which he administered electroshock treatments to patients
who were heavily sedated for approximately ten days. See e.g. Morrow v. Royal Vctoria Hospital
(1973), [1974] S.C.R. 501,42 D.L.R. (3d) 233.
7 Serious abuses of the Quebec mental health laws caused the institutionalization of orphans and
other children, as reported in A. Picard, “‘Duplessis Children’ Fight to End the Shame” The Globe
and Mail (12 September 1992) Al. This tragedy has recently been in the news again as the victims of
this abuse are requesting compensation from the Quebec government.
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1061
Before analyzing the direction that the law should be taking in the future, we will
first examine one of the most significant advances in the area of recognition of the
rights of the psychiatric patient, the right to refuse treatment. Any reform in the law
must include the recognition of this right.
D. The Right to Refuse Treatment
This area of the law is permeated by the tension between the legal and medical
views. The right to self-determination is at conflict with the view, generally ascribed
to health care professionals and families of the mentally ill, that these individuals are
too ill to know what is good for them, and refusals of treatment by involuntarily con-
fined patients should be overruled irrespective of whether this decision represents the
competent wishes of the patient. While the controversy in this area is framed in terms
of these opposing views, it is important to remember that these are not competing in-
terests held by different groups of individuals, but two sets of conflicting interests
held by each individual.”
The law in Quebec is focussed primarily on protecting and fostering the rights of
the patient, as opposed to promoting a treatment-based approach to mental health law.
Yet it is important to remember that the psychiatric profession plays a significant role
in determining whether a patient can in fact exercise this right, as it is this group that
determines if the patient is competent to consent to or to refuse treatment.
It has long been recognized that a major factor precipitating de-institutionalization
has been the introduction of psychotropic medications, sometimes referred to as
“major drugs”. ‘ These drugs control the symptoms manifested by acute psychotic in-
dividuals. In addition, they have been credited with lengthening the intervals between
psychotic episodes and lessening the duration of these episodes?’ Thus, the use of
these drugs has allowed certain patients to lead “normal” lives within the community.
Moreover, some writers maintain that the use of such drugs makes those .suffering
from mental illness more responsive to other forms of non-drug therapy, such as psy-
chotherapy?’
The growing use of these medications in treating mental illness has given rise to
both medical and legal issues, the analysis of which will be the focus of this next sec-
tion. The most serious medical problem associated with the use of these drugs is their
nBay, supra note 5 at 13.
8 D. Rochefort, From Poorhouses to Homelessness: Policy Analysis and Mental Health Care
(Westport, Conn.: Auburn House, 1993) at 38.
7′ S. Gelman, “Mental Hospital Drugs, Professionalism, and the Constitution” (1984) 72 George-
town L.J. 1725 at 1741.
” A.D. Brooks, “The Constitutional Right to Refuse Antipsychotic Medications” (1980) 8 Bull.
Am. Acad. Psychiatry & L. 179 at 183.
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side effects, which range from minor and temporary to serious and permanent.” The
legal question that arises is to what extent do we wish to define and extend this right
as it applies to those involuntarily confined. The issues concerning the right to refuse
treatment are also central to the debate over whether there should be legislation
authorizing compulsory out-patient committal, which will be discussed below in Part
III.C.
1. Drug Therapy: Benefits and Side Effects
While many clinicians agree that the introduction of psychotropic drugs has in-
creased the quality of life for many people suffering from mental illness, these drugs
do not cure the illness; they merely mask or inhibit the symptoms. One medical com-
mentator has made the following statement describing the operation and effects of
psychotropic drugs: “[A]gents that perform a chemical lobotomy … The drugs do not
cure a disorder but instead flatten the emotions, produce disinterest or apathy and en-
force docility.”” Furthermore, there is controversy within the medical community as
to the nature and extent of the benefits derived from the use of such drugs. Some
studies indicate that the use of psychotropic drugs is beneficial to the treatment of
acute schizophrenia, whereas other studies have challenged this claim.’ Still other
studies have indicated that these drugs do not appear to be effective in terms of pre-
venting progressive deterioration of schizophrenics.’
As previously mentioned, a significant disadvantage to the use of such drugs is
the side effects suffered by those who take these medications over a prolonged period.
Weatherhead classifies the side effects into two broad categories: movement or neu-
romuscular disorders and non-movement disorders. A few examples of the latter cate-
gory are cardiovascular effects, such as severe drops in blood pressure and dizziness,
and gastrointestinal effects, namely nausea and vomiting. ‘ The more serious and en-
during side effects, however, are the former, the most prevalent one being tardive dys-
kinesia. This disorder normally appears after prolonged use of antipsychotic drugs
and is generally thought to be untreatable and irreversible. It may present itself in the
form of involuntary movements of the tongue, mouth, or cheeks; similarly it may
cause bizarre, involuntary movements of the torso or limbs. Further, continued use of
” R. Weatherhead, “Psychotropic Drug Treatment Refusal by Competent Psychiatric Patients”
(1988) 47 U.T. Fac. L. Rev. 101 at 105-6. See also C. Gendreau, Le Droitdu patient psychiatrique de
consentir a un traitement : elaboration d’une norme internationale (Montreal: Thrmis, 1996) at 39-
40.
” P. Breggin, “Brain Damage, Dementia and Persistent Cognitive Dysfunction Associated with
Neuroleptic Drugs: Evidence, Etiology, Implications” (1990) 11:3-4 J. Mind & Behav. 425 at 426.
” S. Beyer, “Madness and Medicine: The Forcible Administration of Psychotropic Drugs” [1980]
Wisc. L. Rev. 497 at 539-40.
Gelman, supra note 79 at 1749.
K. Temple, “The Right to Refuse Treatment’ (1986) 14 L Psychiatry & L. 375 at 386.
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1063
these drugs can affect respiration, swallowing, and speech.’ Breggin also states that
there is research indicating that the use of these drugs may affect certain higher brain
and mental functions.’ While clinical studies on the prevalence of these side effects
among long-time users yield various results, the incidence of these side effects is not
insignificant.’
The effects of refusal to consent to medication among involuntarily committed
patients include delayed recovery, increased hospital stays, and increased use of
physical or chemical restraints in those cases where the refusal to submit to treatment
precipitates aggressive or violent behaviour on the part of the patient.” Trimnell ex-
presses the frustration felt by clinicians at having to restrain patients, sometimes re-
peatedly, when such action usually has no impact on their condition. Moreover, Trimnell
believes that if the severely psychotic patient could be medicated adequately for a
short time, the patient and clinician(s) would be able to come up with some form of
mutually agreeable treatment?
2. Clinical Views on the Right to Refuse Treatment
A recognized right to refuse treatment among competent, involuntarily hospital-
ized patients is a source of concern for many psychiatrists and other mental health
care professionals. It is often cited as an example of the adverse affect that the in-
creased intervention of the law in the mental health domain has had on the welfare of
the mentally ill patient. The role of health care professionals when dealing with an in-
voluntary patient who has refused treatment becomes that of the State’s delegate as an
agent of social control and protection. They are unable to treat the illness that pre-
cipitated the need for the hospitalization and often feel relegated to watching these in-
stitutionalized patients “rotting with their rights on”.’ This position is clearly articu-
lated in the following passage: “[T]o commit someone involuntarily to a mental in-
stitution without treatment for the illness that is the underlying basis for such con-
Breggin, supra note 82 at 427.
‘7 IbiL at 429ff.
Brooks, supra note 80 at 186 suggests that the rate of tardive dyskinesia in some mentally ill
populations ranges from 25-50% of those who use anti-psychotic medications for prolonged periods.
Breggin, supra note 82 at 428 cites various APA studies which indicate that the rate of incidence of
tardive dyskinesia in routine treatment (several months up to two years) is between 10% and 20%
among those with more than minimal mental illness. Studies of elderly nursing home patients indi-
cated that 41% developed the disease over a period of only 24 months and none fully recovered.
9 J. Trimnell, “The Need to Treat” (1988) 8 Health L. Can. 102 at 102-103.
‘”Ibid. at 103.
SP.S. Appelbaum & T.G. Gutheil, “‘Rotting With Their Rights On’: Constitutional Theory and
Clinical Reality in Drug Refusal by Psychiatric Patients” (1979) 7 Bull. Am. Acad. Psychiatry & L.
306.
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finement would be tantamount to warehousing him or her, that is, to confining without
hope of reversing the process that resulted in the confinement” ‘
These statements are strong arguments in support of a medical model that fo-
cusses on the welfare of the patient. Yet the lack of consensus over the long-term
benefit of prolonged use of such drugs, the powerful nature of these drugs, and the se-
rious side effects that these drugs may produce are also factors that must be consid-
ered and are often glossed over by clinicians. Moreover, an approach to mental health
law that ignores a patient’s right to self-determination does not necessarily promote
the welfare of the patient. The assumption that the patient is not capable of knowing
whether treatment is in his or her best interests may have an adverse effect on the in-
dividual. Removing this element of control from the person’s life can be damaging
both emotionally and in terms of self-esteem to these already-vulnerable individuals.
3. Analysis of the Law
The right of the patient to determine what can and cannot be done to his or her
body, which includes the right to refuse treatment, exists in medical law in both Que-
bec and Ontario’ This right is protected under the doctrine of informed consent, and
is articulated in the C.C.Q. as follows:
Every person is inviolable and is entitled to the integrity of his person.
Except in cases provided for by law, no one may interfere with his person
without his free and enlightened consentL’
Further, article 11 of the C.C.Q. provides that no person shall be made to undergo
care, treatment, or any other act except with his or her consent. The second paragraph
of article 11, however, states that if the person is incapable of giving or refusing con-
sent to care, a person authorized by law or by mandate given in anticipation of his or
her incapacity may do so in his or her place. Article 15 provides a hierarchy of per-
sons authorized to give consent in the case of the patient’s incapacity. Thus, a finding
of incapacity does not obviate the need for consent; it merely means that the consent
must be obtained from a substitute authorized by law or mandate.
The right to refuse treatment protects the patient’s right to make decisions that are
against his or her best interests, or stated otherwise, the right to make unreasonable or
” T.G. Gutheil, “The Right To Refuse Treatment: Paradox, Pendulum and the Quality of Care”
(1986) 4 Behav. Sci. & L. 265 at 267-68.
9′ The Common Law position is articulated in Malette v. Shulman (1990), 72 O.R. (2d) 417, 67
D.L.R. (4th) 321 (C.A.) [hereinafter Malette cited to O.R.].
” Art. 10. The exception provided for emergency in art. 13 will not be examined. The exceptions to
consent dealing with involuntary confinement and psychiatric evaluation in art. 26ff. have been ex-
amined in Part IIA, above.
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1065
irrational decisions.’ To force a competent individual to submit to treatment for his or
her own good is viewed as paternalistic and runs counter to a person’s right to life,
liberty, and security of the person as articulated in section 7 of the Charter. The semi-
nal decision by the Ontario Court of Appeal in Fleming v. Reid’ has elevated the
competent refusal of treatment to the level of a constitutional right. Moreover, this de-
cision is significant in the area of mental health law, as it dealt with the refusal to con-
sent to treatment by an involuntary patient. The following statement articulates the
right to refuse treatment and makes clear that the doctrine of informed consent applies
equally to psychiatric patients:
These traditional common law principles extend to mentally competent patients
in psychiatric facilities. They, like competent adults generally, are entitled to
control the course of their medical treatment. Their right of self-determination
is not forfeited when they enter a psychiatric facility. They may, if they wish,
reject their doctor’s psychiatric advice and refuse to take psychotropic drugs,
just as patients suffering from other forms of illness may reject their doctor’s
advice and refuse, for instance, to take insulin … The fact that these patients,
whether voluntarily or involuntarily, are hospitalized in a mental institution in
order to obtain care and treatment for.a mental disorder does not necessarily
render them incompetent to make psychiatric treatment decisions.
While this articulation is taken from an Ontario decision, it nonetheless also captures
the Quebec position taken with respect to the right to refuse treatment and the right of
informed consent as it applies to the psychiatric patient.’
4. Capacity and the Right to Refuse Treatment
The degree to which the psychiatric patient’s bodily integrity is protected by the
right to refuse treatment turns on whether the patient is found to have the capacity to
make such a decision. As stated above, a person is free to make decisions that may not
be in that person’s best interests. Yet the notions of paternalism that are rejected when
dealing with consent to treatment for physical illness may nonetheless come to the
9s See Malette, supra note 93 at 424. In the Civil Law this position is articulated in Manoir de la
Pointe Bleue v. Corbeil, [1992] RJ.Q. 712 (Sup. Ct), and Nancy B. v. Hrtel-Dieu de Quebec, [1992]
RJ.Q. 361 (Sup. Ct.).
(1991), 4 O.R. (3d) 74, 82 D.L.R. (4th) 298 (C.A.) [hereinafter Fleming cited to O.R.]. In this
case, the appellant psychiatric patients were incapable at the time of treatment of consenting to the
proposed treatment with neuroleptic drugs. The substitute decision-maker refused to consent to the
treatment, based on the prior competent wishes expressed by the patients. These decisions were over-
ridden by the Review Board, which granted treatment orders pursuant to the Mental Health Act,
R.S.O. 1980, c. 262, s. 35ff. The Court held that the provisions operated to deprive the appellants of
their right to security of the person as guaranteed under s. 7 of the Charter and could not be justified
under s. 1.
‘ Fleming, ibid at 86. This position has been codified in the Health Care Consent Act, 1996, S.O.
1996, c. 2 [hereinafter Health Care Consent Act].
‘ See arts. 10, 11 C.C.Q.; Mdnard, supra note 19 at 239, 241, where he states that this applies in all
circumstances, even when dealing with those subject to involuntary confinement in an establishment.
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fore when dealing with psychiatric patients, especially when determining capacity to
consent to treatment. Thus, to protect these fundamental rights, it is imperative that
the approach taken in determining both the level of capacity needed to consent to psy-
chiatric treatment and the criteria used in making such assessments seek to maximize
the occasions whereby the patient can exercise his or her own free will, rather than
having decisions imposed by substitutes.
5. Functional Approach to Capacity
In Quebec law, the determination of capacity to consent to treatment is a question
of fact and is based on the patient’s ability to make the decision at hand.’ This deter-
mination is not based on the patient’s legal status. Thus, that one is under a regime of
protection is of no relevance to the issue of capacity to consent to treatment. Delisle
J.A. in Institut Philippe-Pinel v. Gharavy made the following statements concerning
the determination of capacity: “[L]’aptitude
consentir A des soins m6dicaux donn6s
est soumise i une 6valuation particuli~re qui, si la personne concemde est sous le
coup d’une r6gime de protection, peut 6tre diffdrente de l’6valuation dont a fait l’objet
la raison pour laquelle un tel r6gime lui a 6t6 ouvert ..
The judge also said, “I1 peut
fort bien arriver qu’une personne soit incapable d’administrer ses biens, tout en 6tant
parfaitement consciente de ses besoins de sant6.””
This functional approach to capacity affords additional protection to the individ-
ual rights of the psychiatric patient. Prior to this change in 1994 with the coming into
force of the C.C.Q., one who was unable to manage his or her property and placed
under public curatorship was automatically deemed incapable to consent to medical
treatment. It was not unheard of in such instances for doctors to have someone placed
under public curatorship to override the patient’s refusal to submit to treatment.
Article 16, which requires court authorization of decisions made by a substitute
where the incapable person categorically refuses to receive treatment to which that
substitute has assented (with the exception of hygienic care or an emergency), exem-
plifies the functional approach taken to capacity in the C.C.Q. While such a provision
does not guarantee that treatment will not be imposed on the refusing patient, it places
the onus on an interested party to convince the court both that the finding of incapac-
ity to consent is well-founded, and second, that the proposed treatment is in fact nec-
“‘ M6nard, ibid. at 241. See also M. Somerville, “Changes in Mental Health Legislation as Indica-
tors of Changing Values and Policies” in M. Roth & R. Bluglass, eds., Psychiatry, Human Rights and
the Law (Cambridge: Cambridge University Press, 1985) 156 at 168-69. This functional approach is
also taken in Ontario and is reflected in Fleming, supra note 96 at 86 and in the Substitute Decisions
Act, 1992, S.O. 1992, c. 30 [hereinafter Substitute Decisions Act].
[1994] R.J.Q. 2523 at 2529 (C.A.) [hereinafter Gharavy].
Ibid. at 2532.
D. Morrison, “Consentement dclair6 et capacit6 en pratique cinique psychiatrique ou opinion: le
consentement dclair6 s’applique-t-il en psychiatrie?” in P. Migneault & J. O’Neil, eds., Informed Con-
sent and Capacity in Psychiatry: Clinical and Legal Aspects (Verdun, Qc.: Douglas, 1988) 5 at 11.
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1067
essary. This independent review mechanism reinforces the primacy of the patient’s
right to inviolability and bodily integrity as articulated in article 10 of the C.C.Q.
The adoption of the functional approach, in addition to maximizing the opportunity
for the individual to make his or her own choices, also fosters the view that discrimina-
tion and de-personalization of those suffering from mental illness is not to be tolerated.
6. Determination of Criteria Used to Assess Capacity
The importance of the criteria used to assess competence is articulated by LeBel
J. in Institut Philippe-Pinel v. Blais, where she makes the following comments:
Le respect de l’inviolabilit6 et de l’intdgritd de la personne humaine exige que
le crithre utilis6 pour ddterminer si une personne est ou non apte
refuser son
consentement h un traitement soit assez strict pour que le recours h un tiers d6-
cideur, qu’il s’agisse d’un mandataire ou du tribunal, ne devienne pas une tech-
nique pour priver une personne de son droit de refuser un traitement recoin-
mandd par ses m~decins traitants.”
The law does not specifically provide the criteria necessary to determine if the
patient has the requisite capacity to consent to or to refuse treatment. If the standard to
be met is too stringent, the inevitable result is that most psychiatric patients will not
meet the test and will be denied the right to choose. Conversely, if the bar is set too
low, individuals who cannot appreciate the consequences of the decision at hand will
be held to be capable, even though in such instances it would be more appropriate for
a substitute to determine whether to consent to treatment. Upholding a decision to re-
fuse treatment in the case of an individual who is only marginally capable denies the
patient the opportunity to receive potentially beneficial treatment. Even the strongest
proponents of a right to refuse treatment would not advocate extending this right to
those who cannot appreciate the consequences of their actions. The right to refuse
treatment respects the right to make irrational decisions, yet this is not the same as re-
specting choices made by one who does not have the cognitive ability to make a deci-
sion, rational or otherwise. A proper balance between these two extremes must be
sought in determining appropriate criteria for use in assessing competency to make
treatment decisions.
In Gharavy, the court used the same criteria for assessing capacity to consent to
medical treatment. The criteria adopted focus on the patient’s ability to understand his
or her illness, the nature and purpose of the proposed treatment, the risks involved in
undergoing the treatment and in refusing treatment, and whether his or her ability to
consent is affected by the illness.” These criteria provide useful broad guidelines but
fail to provide much direction as to how they should be applied in a given situation.
Nor is there any indication as to the proper weight to be given to each criterion. It is
[1991] RJ.Q.1969 at 1973-74 (Sup. CL).
” Gharavy, supra note 100 at 2434-35. These are the criteria found in the Hospitals Act, R.S.N.S.
1989, c. 208, s. 52(2), as cited by the Court of Appeal.
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necessary to have well-articulated criteria to ensure that these assessments are not
conducted in an arbitrary manner and that there is a certain degree of consistency of
application. Otherwise, there is the risk that these determinations will be totally sub-
jective assessments based on the values of the assessor and not the person being as-
sessed. This will result in a very narrow scope of application for the right to refuse
treatment.
Of particular significance in the assessment of capacity to consent or refuse
treatment is the degree to which the psychiatrist takes into account the refusal itself as
evidence of incapacity. In cases where the person is delusional and denies that he or
she has an illness, the refusal of treatment is consistent with a finding of incapacity
based on the above-mentioned criteria. Yet in other instances, there is the risk that an
assessment that focusses on the refusal alone may tend to overlook the reasons un-
derlying the refusal, such as the desire to avoid side effects of drug therapy. Viewing
the mere refusal of treatment as evidence of the patient’s denial of illness and hence
incapability is another manifestation of the paternalism still present in this area of the
law. Moreover, such applications of the criteria tend to undermine the right to refuse
treatment. This position was articulated by Steinberg J.A. in his dissenting opinion in
Gharavy: “[The incapacity of the Respondent to consent is attributed to a denial of
his condition, and that denial is inferred from the refusal to undergo the treatment. If
pushed to extremes, this reasoning deprives the individual of the very right to refuse
treatment conferred by Article 10 of the Civil Code of Qubec’.’
The role of the psychiatrist in assessing capacity is to determine if the patient has
the cognitive ability to make the decision, not to evaluate the rationality of the effect
of such a decision. By focussing on the effect of the decision and not on the patient’s
ability to make such a decision, the patient is more likely to be found to have capacity
when he or she is agreeing to the proposed treatment than when he or she has chosen
to go against the plan proposed by the psychiatrist. Such an approach tends to deny
the right to refuse treatment to those who are competent to make treatment decisions
and find competent those who may not be capable of giving consent. In neither case
has free and enlightened consent been obtained.
7. Conclusion
It is important to note that the right of the competent psychiatric patient to refuse
treatment sends a strong message that these patients should not be treated differently
from those hospitalized for physical illness. Thus, the protection and promotion of the
individual rights of those suffering from mental illnesses goes a long way towards
changing people’s perceptions of mental illness. As the distinctions between those
suffering from physical and mental illness are broken down, we hope that the stigma
attached to those afflicted will lessen.
“” Ibid. at 2542.
2000] K BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1069
While it is true that those suffering from mental illness have special interests and
needs, they nonetheless want the same things as everyone else: a home, a job, friends,
and a support system comprised of those who have similar life experiences.” Em-
powering this group by ensuring mental health laws have a strong patient-rights base
paves the way for advocacy groups to promote the special interests of the mentally ill
in mental health policy development. If the law focusses too strongly on the medical
or treatment model, the voice of the group affected by these laws may not be heard.
The right to refuse treatment need not be seen as adverse to the welfare of the pa-
tient. On the contrary, such a right gives the individual options, which may make him
or her feel less helpless at the hands of a psychiatrist. Forcing one to do something
against one’s will, even if it is in one’s best interests, cannot be positive for the doctor-
patient relationship. This sort of treatment environment will not necessarily lead to
continued use of medication by the patient once he or she is released from the hospi-
tal. Pat Capponi, in explaining what finally drove her to stay on medication after bouts
of refusal, emphasized the importance of finding a doctor who listened to her and
with whom she could negotiate a treatment plan.”‘ She stressed the importance of be-
ing treated as an intelligent individual who could make treatment choices. A mutually
determined plan stands a better chance of being followed than one that is imposed
unilaterally on the patient. This can only be achieved if the right to choose is firmly
entrenched in the law.
Ill. Future Legislative Options
It is important to understand the purpose of the mental health system in Quebec.
There appear to be two options: protection of the public from dangerous mentally ill
individuals and treatment of mentally disordered persons. If the purpose is to detain
dangerous individuals, “[T]here is no need to connect that dangerousness to mental
disorder. That purpose would be best attained by simply authorizing the detention of
individuals who are predictably dangerous regardless of whether they are mentally
disordered or not: “‘ Consequently, the logical conclusion must be that the purpose of
the mental health system is the treatment and care of the mentally ill. This is so not
only in Quebec, but throughout the rest of Canada as well.
The mental health system is comprised of many components. One major compo-
nent is legislation. While the purpose of the mental health system is treatment, the
“‘ This observation was made by Pat Capponi, Toronto writer and one who has been hospitalized
for mental illness, in an interview with Michael Enright on the CBC Radio national programme “This
Morning” on the topic of involuntary treatment legislation (2 November 1998).
107 Ibid.
” M. Kingma, Mental Health Law: A Critique of the “Dangerousness” Criterion for Civil Com-
mitment and Some Recommendations for Change (LL.M. Thesis, Dalhousie University 1995) at 8
[unpublished]. Kingma, on this point, argues that the purpose of mental health legislation is treatment.
This is not our conclusion. In Quebec, the legislative purpose is detention, not treatment. We would,
‘however, conclude that the purpose of Quebec’s mental health system is treatment.
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Quebec mental health legislation does not appear to be in sync with this objective.
The goal of Quebec’s legislation is protection. The result of having these inconsistent
goals or purposes is that involuntary confinement remains very limited but, at the
same time, it does not lead to treatment. Rather, it results in mere detention. As Stone
and Stromberg noted, “When a patient exercises this right [to refuse treatment], the
cruelest paradox in civil commitment results: a mentally ill patient is deprived of his
liberty but cannot be treated. This stalemate converts suffering mental patients into
warehoused items, converts psychiatrists into jailers, and converts civil commitment
into a charade ” ‘ How can this charade be addressed? One answer lies in capacity.
A. The Role of Capacity
Mental health legislation began with the belief that mental illness automatically
included incapacity.”” It has been observed that “capacity is now recognized as being
distinct from mental disorder”.’ Consequently, to be involuntarily committed one
should be found to be (i) suffering from a mental illness, (ii) dangerous, and (iii) inca-
pable, We will refer to these three components as the capacity standard. Only then
should an individual be committed involuntarily. There will be no issue of hospitali-
zation as a form of detention. Involuntary hospitalization would then serve the pur-
pose of treatment.
There is a reasonable concern that incorporating a capacity test would grant the
same discretionary power to the medical profession as did the welfare test. However,
as noted by Robertson, there are difficulties in determining capacity, but that should
not undermine the importance of a capacity test.'”2 To protect individuals from such
vast discretionary power, it is imperative that the criteria developed for determining
capacity be well defined, as was discussed in Part II.D. In this instance, the need for
objectivity is even more crucial since we are dealing with deprivations of individual
liberty, both in terms of involuntary confinement and of forced treatment.
Legislation incorporating an involuntary civil commitment standard based on a
well-defined capacity test could prove to be a strong and viable alternative to replace
the present “danger to self’ component of the danger standard.”‘ However, one issue
remains: there may be some individuals who suffer from mental illness and are dan-
gerous, but capable. Kingma has observed that “[a]lthough the concern for dangerous
but capable individuals is arguably small, it exists nonetheless, and makes the elimi-
nation of the ‘danger to others’ criterion an unlikely possibility'”4 While it was noted
“” A.A. Stone & C.D. Stromberg, “A Model State Law on Civil Commitment of the Mentally l1” in
American Psychiatric Association, Issues in Forensic Psychiatry (Washington, D.C.: American Psy-
chiatric Association, 1984) 59 at 66.
“” Kingma, supra note 108 at 208.
.. Ibid. at 209.
“2Supra note 26 at 396.
” Kingma, supra note 108 at 219.
“‘Ibid. at 212-13.
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
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above that the most frequent outcome of research is that there is little, if no, correla-
tion between danger and mental illness, there have been, nonetheless, some studies
that appear to indicate some correlation, and consequently, such findings, however
limited they may be, should not be ignored.”‘ Confinement for the protection of others
has been a well-accepted principle. This was the philosophy of Mill and is essentially
the sole justification for the “danger to others” component. Involuntary confinement
of a capable individual, however, cannot be viewed as treatment if the individual re-
fuses treatment. Despite the flaws noted in this “danger to others” component, the fact
remains that while this standard is not the best, it is all that is available. Until it can be
proven with the utmost of certainty that there is no correlation between mental disor-
der and dangerousness, then the “danger to others” component should prevail, unless
a more successful method finds sufficient scientific and social support.”‘
Replacing all welfare standards and “danger to self’ standards with the capacity
standard would be a positive step in ensuring respect for civil liberties, combatting
paternalistic interference by the State, and achieving the mental health system’s goal
of treatment. It would be an improvement since it takes a major step in addressing that
the right to refuse treatment exists and that capacity is an element separate from men-
tal illness.
The capacity standard and the “danger to others” standard will continue to limit
the cases of involuntary confinement. Fortunately, involuntary hospitalization is not
the only means available to address mental illness. There are other mechanisms avail-
able to address the shortcomings of the mental health system. They include the fol-
lowing: i) Ulysses contracts; ii) out-patient committals; and iii) community services.
B. Ulysses Contracts
A Ulysses contract”‘ is a means whereby mentally ill patients can ensure that they
get treatment during an acute phase of their illness, notwithstanding that, at this time,
due to illness, they may in fact resist the treatment needed to stabilize the condition.
The use of such instruments is a recognition or admission that the decisions made
when the illness has intensified are not the decisions that one would make when the
illness is under control. The act of creating a Ulysses contract is a conscious choice on
“, See J. Monahan, “Mental Disorder and Violent Behavior Perceptions and Evidence” (1992) 47
Am. Psychol. 511 at 514-18. Monahan concluded that there may be “a relationship between mental
disorder and violent behavior, one that cannot be fobbed off as chance or explained away by other
factors that may cause them both” (at 511).
1,6 Kingra, supra note 108 at 220.
“‘ A. Macklin, “Bound to Freedom: The Ulysses Contract and the Psychiatric Will” (1987) 45 U.T.
Fac. L. Rev. 37 at 39. Macklin states that such a contract is a device through which individuals antici-
pate the impact of mental illness on their willingness to accept help and attempt to inoculate them-
selves against it. Further, she states that such contracts are appropriate for those whose illnesses are
characterized by periods of “normalcy” alternating with bouts of severe psychosis.
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the part of the patients to let the healthy self and not the ill self determine what is in
their best interests.
Such instruments allow patients who suffer from a psychotic disorder such as
schizophrenia, manic depression, or depression, while competent, to outline in legally
binding form the nature of treatment that they will undergo when the illness pro-
gresses to an acute phase and they may not be able to make competent treatment deci-
sions. The traditional articulation of the contract is one that is entered into between the
patient and the doctor and would normally outline the deterioration that would trigger
the coming into effect of the contract provisions. In addition, the contract would
stipulate the range of treatment that the doctor would be authorized to effect.”‘ The
terms of such a contract would include not only drug treatments but also the authori-
zation of hospitalization if such action were in the person’s best interests. In these in-
stances unwilling patients, who do not meet the danger standard and thus could not be
involuntarily confined, will be hospitalized based on their competent wishes as set out
in a Ulysses contract. In addition, this form of contract could be used by the patients
to outline the forms of medication that they will agree to take and those that they
would refuse to take during this period. The advantage of such contracts is that during
the illness, the treatment decisions being authorized by the substitute decision-maker
are those previously agreed to by the patient. Through private ordering, the patients
anticipate the illness and restrict their autonomy and liberty to give way to the need to
be treated. The use of such contracts allows the individual and not the State to balance
these competing interests, resulting in an outcome that is acceptable to the patient.
Ontario consent legislation gives effect to a form of Ulysses contract. Under the
legislation, patients can bind their wishes by executing, when competent, a power of
attorney for personal care in compliance with the Substitute Decisions Act,”9 rather
than entering into a contract with the treating psychiatrist. The power of attorney for
personal care will grant the attorney the right to make decisions on behalf of the
grantor should the person become incapable, and it would normally include instruc-
tions as to how these decisions are carried out.’ These forms of Ulysses contracts
provide a level of protection to the patient more than the above-mentioned contract
with the psychiatrist, as the treatment decisions are not simply effected by the physi-
cian but must be agreed to by the substitute decision-maker. Any decisions over which
the attorney has authority must be made in accordance with the known wishes of the
patient or, in the absence of such known wishes, in the best interests of the patient.’2′
Moreover, if properly drafted, this power of attorney for personal care will con-
tain provisions that prevent the grantor from trying to block the attorney’s decisions
when he or she later becomes incapable. The special types of inclusions needed to
,,8 Ibid. at 39-40.
“‘Supra note 99.
,20 Ibid., ss. 46(1)-46(8).
,2, Health Care Consent Act, supra note 97, Sch. A., ss. 21(1), 21(2).
2000] K. BROWN AND E. MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1073
make the power of attorney for personal care an effective “Ulysses contrac’ are ex-
pressly provided for in the Substitute Decisions Act as follows:
1. Section 50(2)2 allows the power of attorney for personal care to contain a pro-
vision authorizing the attorney to use the force reasonable and necessary in the cir-
cumstances to take the grantor to any place for care or treatment, to admit the person
to that place, and to detain and restrain the grantor in that place during the care or
treatment.
2. Section 50(2)3 allows a power of attorney for personal care to contain the
grantor’s waiver of the right to apply to the Consent and Capacity Board for a review
of a finding of incapacity under the following sections of the Health Care Consent
Act.12
a. section 32, which deals with a finding of incapacity with respect to treat-
ment; and
b. section 50, which deals with incapacity with respect to a finding of inca-
pacity with respect to the person’s admission to a care facility.
Subsection 24(2) of the Health Care Consent Act reinforces that an attorney for
personal care may admit the grantor to a psychiatric facility for treatment, notwith-
standing that the patient objects to the admission. However, it is important to note that
such action may only be taken if the patient is incapable (thereby necessitating an as-
sessment at the time of admission) and if the power to admit is expressly provided for
in the document and in accordance with section 50 of the Substitute Decisions Act.
1. The Application of Ulysses Contracts in Quebec
At first glance, it does not appear that there should be any impediments in the law
of Quebec to effecting a valid Ulysses contract in the same manner as that outlined
above under the laws of Ontario. Articles 2166 to 2174 of the C.C.Q. outline special
rules governing the mandate given in anticipation of the mandator’s incapacity. Article
2166 stipulates that a mandate can be used in anticipation of the mandator’s incapac-
ity to care for himself. Article 11 (in the chapter on integrity of the person) authorizes
the mandatary to give consent to “treatment or any other act’ if the person concerned
is incapable of granting such consent. While the mechanism exists whereby the pa-
tient may plan for future illness and authorize the mandatary to hospitalize the patient
and consent to various forms of drug treatment, there is no mechanism available by
which the mandator may make the provisions in this act unassailable.
Article 16 requires the court to authorize any treatment that is categorically re-
fused by a person incapable of giving consent to treatment. In such instances, the
mandatary must justify before the court the necessity and benefits of treatment deci-
sions that may in fact have been expressly provided for in the mandate. While this is
122 mid
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not to say that the court will not authorize such decisions, the introduction of such a
procedure will delay the treatment. This has the effect of frustrating one of the main
purposes of planning in advance for managing psychotic episodes, which is ensuring
that the patient gets the care needed before a serious deterioration in condition. Fur-
thermore, while article 26 authorizes a mandatary to provide consent to admission to a
psychiatric establishment, confinement is only valid if the mandator does not object.
The provisions in the C.C.Q., such as those mentioned above, serve to protect the
psychiatric patient’s right to autonomy, and there should not be any changes to the
general regime that would weaken these rights. However, in those cases where com-
petent patients freely decided to bind their autonomy by the use of a mandate in an-
ticipation of incapacity, the law should recognize and accommodate these prior capa-
ble wishes. This could be effected by modifications to the narrower regime of such
mandates, while leaving the general regime intact.
C. Out-Patient Committal
Out-patient committal has recently generated interest as an alternative to invol-
untary committal. Such legislation is viewed by its proponents as the only humane
solution to the current abandonment or dumping of chronically mentally ill persons.
They submit that the alternative to such legislation is “continued homelessness, dis-
traught families, dangerousness [and] violence …. ‘ This option is not without its de-
tractors and, as previously indicated, the tensions in this area are once more between
the individual’s right to autonomy and the fact that treatment may be beneficial to the
individual.
It does not appear that the legislators in Quebec are inclined, at least in the near
future, to introduce the use of compulsory community treatment into existing mental
health legislation; it is, however, an alternative that is growing in popularity in other
provinces. Saskatchewan has adopted legislative provisions allowing for out-patient
committal, referred to as “community treatment orders”.'” Furthermore, in Ontario, a
government bill'” has been introduced and it proposes changes to the Mental Health
Act to allow for community treatment orders similar to those in Saskatchewan.
This alternative to institutionalization has many benefits in terms of patient treat-
ment. By allowing the patient to obtain treatment in the community, the negative ef-
fects of marginalization and isolation that are common among patients who are de-
tained involuntarily may be eliminated. Further, community treatment is viewed by
“‘ R Boudreau & P. Lambert, “Compulsory Community Treatment ? 11. The Collision of Views and
(1993) 12:1 Can. J. Comm. Mental
Complexities Involved: Is It ‘The Best Possible Alternative?’
Health 79 at 85.
“4 The Mental Health Services Act, S.S. 1984-85-86, c. M-13.1, as am. by S.S. 1993, c. 59, s. 13,
“‘ Bill 68, supra note 45.
adding ss. 24.1-24.7.
2000] K. BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1075
some commentators as filling the gaps in treatment that de-institutionalization has
precipitated.’:6
This option has also been cited by some of its proponents as being the least re-
strictive alternative. While allowing the patient to live in the community is certainly
less intrusive than involuntary in-patient committal, it can hardly be said to be less in-
vasive than allowing the patient the choice of voluntarily seeking treatment in the
community.”‘
The competent wishes of an involuntarily committed patient have attained con-
stitutional protection. Thus, any out-patient committal legislation must recognize this
right, which in effect limits its application to those who are held to be incapable of
making treatment decisions for themselves. The Saskatchewan legislation” limits the
application of this option to those individuals who meet this criterion. Bill 68 stipu-
lates that a community treatment order may be issued by a physician if the patient or
the substitute decision-maker consents to the treatment plan that forms part of the
community treatment order. Thus, the agreement could not be made without the com-
petent patient’s consent.'” In the case of incompetent individuals, it is the substitute
who will decide if such treatment is in the best interests of the person affected and it
would appear that it could be done against that person’s objections.
If such legislation were enacted in Quebec, a competent patient who refused
treatment would be forced to remain hospitalized. Yet a patient who is deemed in-
competent to make treatment decisions and whose substitute decision-maker decided
that such treatment was in the patient’s best interests might remain in the community,
notwithstanding that both patients had met the “danger to self’ standard. Such incon-
sistent results are problematic. The difficulty lies not necessarily with the notion of
out-patient committal, but with the use of the danger standard as the sole criterion for
justifying committal. One solution lies in redefining the criterion for in-patient com-
mittal to include a finding of incapacity as was noted above in Part IIIA. The solution
with respect to those meeting the “danger to others” standard is less straightforward.
While the use of mandatory community treatment orders avoids abandoning those
chronically ill patients to their illnesses, care must be taken to ensure that in providing
for such options the net is not cast too wide. Such orders should not be viewed as a
means of extending the ambit of forced treatment, but should be viewed as an alterna-
tive in a clearly defined set of circumstances. Thus, the development of specific crite-
ria under which out-patient committal will be applied is of primary importance.
Out-patient committal does not present an overall solution to the problems en-
countered in the area of mental health. However, it may provide a partial solution to
,26 See J. Geller, “Rights, Wrongs and the Dilemma of Coerced Community Treatment’ (1986) 143
Am. J. Psychiatry 1259 at 1259.
‘7Boudreau & Lambert, supra note 123 at 82.
28 The Mental Health Services Act, supra note 124, s. 24.3(1)(a)(v).
‘-‘ Bill 68, supra note 45, s. 14.
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that small group of chronically ill patients who are repeat users of mental health fa-
cilities. If out-patient commitment is to be considered as an option to in-patient con-
finement, mental health care providers must be able to deliver the program effectively.
Adequate resources must be allocated to the implementation of a system that will be
adequately staffed to handle the increased patient load. In addition, the following are
issues that must be addressed if such an alternative were to be implemented.
There must be a system in place to monitor the patient’s progress and to evaluate
the ongoing need for continued compulsory treatment. To this end, the orders should
be for a relatively short duration. The objective of such an alternative should be to get
the individual stabilized. The therapeutic goal would be to move toward the adoption
of a voluntary treatment plan. If this is not possible, the order must last only as long as
the patient meets the defined criteria. Once the individual fails to satisfy the criteria, to
minimize the limitation to individual autonomy inherent in such orders, the imposi-
tion of treatment should come to an end.
The system must also monitor compliance with the treatment order. Thus, appro-
priate courses of action must be developed to deal with situations where a patient fails
to comply with the terms of the order.’ Will the penalty for non-compliance be invol-
untary in-patient committal or forced injections? Is there some other effective alterna-
tive? Moreover, who will monitor compliance and who will enforce the sanctions or
consequences of non-compliance? All of these issues must be addressed and incorpo-
rated into out-patient committal legislation.
Finally, the treatment must be accessible to the patient. Such a system will be
doomed from the outset if the patient does not have easy access to the treatment. A
patient who is on welfare and must travel for miles to obtain costly medication will
not be predisposed to following such a treatment order.
It is important to remember that out-patient committal is an alternative available
to help alleviate some of the suffering caused by those afflicted with mental illness.
Drug treatment is not the only form of assistance that those suffering from mental ill-
ness require. Pat Capponi argues that an approach to mental health legislation that fo-
cusses too strongly on the medical model may mean that legislators will lose sight of
the social issues that need to be addressed when dealing with those suffering from
mental illness, such as the need to provide housing, jobs, and resources for the devel-
opment of support networks.”‘ Thus, the quality of life of those suffering from mental
illness cannot be improved unless a strong community network is established.
“‘” See The Mental Health Services Act, supra note 124, s. 24.5(3), dealing with revocation of such
orders. For Ontario, see Bill 68, ibid.
“‘ See The Mental Health Services Act, ibid., s. 24.6, dealing with the failure to comply with such
orders. For Ontario, see Bill 68, ibid.
‘” Supra note 106.
2000] K BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1077
D. Community Network
The intended results of de-institutionalization do not appear to have materialized.
The goal of de-institutionalization was to get people out of the obscure wards of the
institutions and into the welcome arms of the community. The problem is that the
community was not equipped to accept these individuals. A strong, interconnected
community network was not established before the patients were removed from the
hospitals. Consequently, it is not known if the original plan of the drafters was a good
one, since it was not implemented as it was formulated. Therefore, the option of
community services and support should be explored to its fullest before condemning
de-institutionalization.
De-institutionalization is a respectable endeavour, as it recognizes that involuntary
confinement is a direct violation of civil liberties. Provision of community services is
a logical complement to a plan for de-institutionalization. To ensure adequate and ef-
fective community services, governments must make a full-time commitment to en-
suring the viability of such programs, which entails three major factors: contribution,
coordination, and continuity. These elements, however, are currently missing.
Governments need to contribute more financial resources to these community
services. The community services available today are struggling on the limited funds
they are given to keep up with the demand for their services. Long waiting lists are the
norm. In the future, the government of Quebec needs to recognize and acknowledge
the existence of those individuals roaming the streets, alone and receiving little, if any,
assistance.
Coordination is another feature missing from the community services currently
available. Many health-care workers do not know the range of services that may be of
use to their patients. Consequently, they are unable to provide options to their patients
once they have exhausted the services available to them in their own organization.
Coordination must become a primary goal. The ultimate objective must be a true sys-
tem of care that results in constant communication among different types of agencies
(e.g., psychiatric, social, vocational and housing), rather than a loose network of
services.’ –
Moreover, continuity of care is essential to ending the revolving door cycle. It
would be ideal if every individual had one person who would be responsible for his or
her treatment or care. If it is not possible to have one person who would follow the in-
dividual, then it is essential that the transition from one person to another be thorough
and understood by the patient. Too often, the community services take a patient only
through the first few steps on the road of recovery that in many cases is a road of in-
numerable steps. Again, due to the lack of coordination between services, the onus is
on individuals to make their own way to the next stage of the recovery process. Thus,
‘331J.A. Talbott & H.R. Lamb, “Summary and Recommendations” in H.R. Lamb, ed., The Homeless
Mentally Ill (Washington, D.C.: American Psychiatric Association, 1984) 1 at 5-6.
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there is the risk that these next steps will never be made, whereas if there were ade-
quate support and follow-up from a health-care or social-services professional, the in-
dividuals would stand a greater chance of going the full distance on the road to recov-
ery.
The philosophy of de-institutionalization has yet to realize its full potential. It re-
quires the establishment of a strong network of community services that runs
smoothly, is adequately funded, and meets the needs of its users. Community-based
mental health services and organizations are essential elements of a strong, accessible,
and effective mental health system.
Conclusion
Mental health law in Quebec places heavy emphasis on protecting the individual’s
right to autonomy and self-determination. This stance has arisen partly in response to
the abuses suffered by many psychiatric patients in the developing years of psychiatry.
Moreover, this trend is in keeping with the primacy that we as a society place on indi-
vidual freedoms. In the area of mental health law, the era of paternalism has given
way to the era of empowerment. The strong emphasis on individual rights in this area
of the law is an important means of breaking down the barriers that many individuals
suffering from mental illness feel exist between them and the rest of society.
The standard for involuntary confinement in Quebec is that of pure danger. While
this strict criterion ensures that individual liberty is infringed only in a narrow set of
circumstances, it also means that only those who are desperately ill fall within these
parameters. This strong focus on the rights of individuals, to the exclusion of their
treatment needs, gives these individuals the “right to be delusional”. Along with this
“right” comes the right to be isolated and maybe even homeless. Is this really foster-
ing the right to autonomy and self-determination? It is through the use of one’s mind
that one’s free will is expressed. Thus, when it is one’s brain that is diseased, is it the
disease or the individual making the choice? Perhaps it is only when the disease is
treated and under control that one is expressing one’s true will. Thus, as we have ar-
gued, strong individual rights are needed to enhance patient welfare; however, pro-
viding treatment to those too ill to seek it themselves may also enhance individual
autonomy.
Mental health laws need to reflect in a more balanced fashion the individuals’
right to self-determination and right to relief from suffering. The starting point must
be to re-evaluate the criteria for involuntary confinement. Dangerousness as the sole
criterion tends to be both under- and over-inclusive. It is under-inclusive when it sets
the standard of danger to be immediate or imminent harm, yet it is over-inclusive
when such a standard would justify the confinement of competent individuals who do
not pose a danger to themselves or others. Thus, one solution to the over-inclusiveness
lies in developing standards that incorporate incapacity as a criterion for involuntary
committal. The problem of under-inclusiveness is best addressed by legislative op-
tions designed to enhance the opportunity for the patient to receive treatment outside
of the institutional setting.
2000] K BROWN AND E MURPHY- QUEBEC MENTAL HEALTH SYSTEM
1079
Out-patient committal may be a means of ensuring that the chronically mentally
ill who are in and out of hospitals get the treatment they need, without entirely de-
priving them of their liberty in the process. Similarly, the use of Ulysses contracts is a
means whereby individuals can plan in advance to get the required treatment once the
illness overcomes them. Such solutions are by no means all-encompassing. There is
still a large population of those suffering from mental illness who fall between the
cracks. A strong, coordinated network of community mental health services must be de-
veloped to fill these gaps. This requires a modification to mental health policy and a
commitment of resources to ensure that adequate support mechanisms are available in
the community to fill the void that de-institutionalization has created.
The law alone cannot solve all the problems encountered by those suffering from
mental illness. There must be financial resources committed to improving their social
conditions. This means ensuring that these individuals have affordable housing, job
training, jobs, and resources for the development of adequate support networks. It is
only when their medical and social needs are adequately addressed that those suffer-
ing from mental illness will be able to transcend the circumstances in which they find
themselves.
