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Getting help from the civil law.

It is 7 a.m. and my husband Bill is on the phone with Mr. Robson, the superintendent of Michael's apartment building. Mr. Robson has called because our 34 year-old son Michael is throwing the electrical appliances out of his apartment window and Mr. Robson does not know if he should call the police. He has tried to enter Michael's apartment but Michael has barricaded the door. Bill thanks Mr. Robson for calling and assures him that we will be right over. When we arrive, we see the disarray of appliances on the front lawn. We plead with Michael to let us in but he refuses to respond. With the aid of Mr. Robson, Bill enters Michael's second story apartment from the balcony. Making his way through the disheveled apartment, Bill hears whimpering from the closet and finds Michael cowering in the corner covering his ears to stop the voices. Michael pleads with Bill to leave, the electrical wires are sending him messages to cut them free, and someone could get electrocuted.

Michael was diagnosed with schizophrenia at the age of 21. He has been refusing all medications for several weeks. His parents have been told that if two physicians are of the opinion that Michael meets the criteria, he may be civilly committed under the Alberta Mental Health Act (MHA). The first question, then, is what path to take to get that opinion?

Three Ways to Obtain a Physician's Opinion

1. Admission Certificate

The least traumatic option for Michael would be to transport him to the office of his family physician or psychiatrists. Then, after examination, if the physician is of the opinion that Michael meets the criteria for admission under the Act, he could issue an admission certificate. This certificate authorizes anyone to apprehend and convey Michael to a facility where he could be examined by a second physician. If the second physician is also of the opinion that the criteria have been met, a second admission certificate is issued. Michael then becomes a "formal patient": a person detained involuntarily for one month under the Mental Health Act. The physicians must base their opinion on facts provided by their personal observations of the patient and facts provided by third parties.

2. Mental Health Warrant

As in the case of Michael, it is not unusual for the individual to resist going to see a physician. Michael's family could take a less desirable option by proceeding under s. 10 of the MHA. They would go before a provincial judge who may then issue a warrant for a peace officer to apprehend and convey Michael for an examination at a facility. Michael's parents would only need to have reasonable and probable grounds to believe that Michael meets the criteria for admission. The standard is that an informant need only conclude there is enough evidence, left uncontradicted, to satisfy a reasonable person. It is, of course, essential to be acting in good faith.

3. Conveyance by Peace Officer

The third available option is to directly notify the police. Mr. Robson, the superintendent, could have called the police. The peace officer could take Michael to a facility for examination under the MHA, thereby diverting him to the civil commitment process rather than detention under the Criminal Code. This allows Michael to avoid the possible stigma of a criminal record and possible incarceration. On arrival at the facility, the peace officer must explain on a form why he or she believes the action was necessary. Sadly, it is not unusual for persons to be subsequently released because there is insufficient information on this form to enable a physician to decide that the admission criteria were met.

Criteria for Admission: An Obstacle Course

Family and friends can help the person reach the goal of care and treatment by understanding the criteria and the admission process. Like an athlete going over an obstacle course, a person can be civilly committed only after completion of a series of hurdles. These hurdles are the criteria for admission under the Mental Health Act as an involuntary patient. Since mental health legislation is a provincial matter, the acts vary considerably from province to province.

We should be glad the criteria for admission are in place. Like all fences, the criteria are sometimes a barrier that prevents us from going where we want, but often protect us from falling over a nasty precipice. Only the Criminal Code provides similar powers to apprehend and detain a person against his or her will. Unfortunately, there is no shortage of examples on the international scene of mental health systems that have been used to remove persons who are a nuisance, or to silence political dissidents. In most Canadian provinces, there is an almost continual debate about the approprianteness of current criteria for admission under the mental health legislation and the balance to be struck between the individual's need for treatment and that person's civil liberties.

First Hurdle: Is there a mental disorder?

In Alberta, there are three hurdles to be met for involuntary admission, two relatively low, one quite high. The first hurdle is the criterion that a person such as Michael is suffering from a mental disorder. "Mental disorder" is defined in the MHA as "a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs (i) judgment, (ii) behavior, (iii) capacity to recognize reality, or (iv) ability to meet the ordinary demands of life". Physicians usually do not have much trouble making this assessment.

Second Hurdle: Is there a danger?

The second hurdle for involuntary admission requires that the person be "in a condition presenting or likely to present a danger to himself or others". It is this criterion that critics of the MHA believe to be an unreasonable barrier to treatment, partially because both physicians and courts have taken a conservative interpretation of what constitutes "a condition presenting or likely to present a danger". Dr. Julio Arboleda-Florez, Professor and Head of the Department of Psychiatry, Queens University, has described dangerousness as "an attribute whereby an individual, because of past behavior, or possession of some specific characteristics, is believed to possess a potentiality for carrying out acts of violence or harm in the future. Dangerousness implies a prediction that an act of violence or harm will materialize. A dangerous person, therefore, is one who is considered potentially violent. Once an act of violence is carried out, the potentiality has been fulfilled, and the person is simply `violent', unless the potentiality remains for further acts of violence to be committed in the future. While an act of violence is an observable behavior, dangerousness cannot be observed, but only prognosticated. Predicting that a person will be violent is the same as making an assessment about the danger that the person poses to other individuals." (Arboleda-Florez and Copithorne: Mental Health Law and Practice 1:113)

Often whether or not the dangerousness hurdle has been cleared is a simple issue of evidence. This is one instance when other interested parties - family, friends, and peace officers - can be of enormous assistance. If a family keeps a diary over several days or weeks and chronicles the proposed patient's behaviour, the physician is not limited to his or her observations. Many times, even though an individual is suffering from a severe mental disorder, he or she can convincingly argue at the examination that this condition does not pose a risk to self or others. All too often, the physician has no other evidence except that of the proposed patient and a few hurried or distraught words of the accompanying person.

Always there must be a distinction between that behavior which is annoying and that behavior which is dangerous. In other words, physicians should not be left to rely on suspicions, speculations, or conjecture when assessing dangerousness. They should be provided with some sort of evidence, and, if possible, corroborated, that harm to self or others is likely. The harm inflicted is currently interpreted to mean physical harm and does not include property damage, economic loss, or psychological damage. The harm caused to children by adult behavior may be particularly difficult to categorize; perhaps the thershold of risk to children is lower than that for adults.

Third Hurdle: Is the person suitable for admission?

The third, and, in Alberta, the last hurdle is that the person is "unsuitable for admission to a facility other than as a formal patient". Only certain institutions defined in the regulations of the Act as "facilities" are permitted to detain persons as formal patients. Physicians must be able to state on the admission certificate that the person refuses hospitalization and that voluntary admission has been offered and refused.

Some provinces have an additional hurdle that a person's condition must be treatable. This is not explicitly stated in Alberta, but in practice treatability is usually considered as part of the assessment of suitability for admission.

After admission, what next?

Michael's admission is but the beginning of what can be a lengthy process to obtain treatment. No treatment can be administered to Michael without his informed consent or in the event of his incapacity, his substitute decision-maker. Each provincial act has specific provisions to determine whether or not individuals have capacity to make treatment decisions and to provide a mechanism for review when formal patients object to treatment or to the admission certificates. Most facilities will be able to advise family or friends on their role in these processes. Many provinces have legislation that enables persons to make advance directives respecting health care (in Alberta this is the Personal Directives Act).

Many question whether admission to an institution is the most effective way to provide treatment to those in need. A recent innovation, seen in the Saskatchewan Mental Health Services Act, is the concept of outpatient commitment. A person found to meet admission criteria would not be admitted to a facility but would be returned to the community, subject to supervision. This approach allows a treatment program to be followed, but permits considerable individual freedom. Dr. Gerald McDougall, Medical Director, Provincial Mental Health Advisory Board, endorses outpatient commitment because it enables the individual who badly needs the treatment to be a partner in the program. This form of program is less intrusive than commitment to a facility because the person's support comes from the people who follow his treatment, rather than from an institution.

We need to have periodic re-examination of our mental health legislation because methods of treatment have improved, so that care can be provided in a less restrictive environment. As well, government policies have radically changed the way mental health services are provided. Common decency and compassion compel us to make sure the system works in the best way possible.

Margaret Copithorne is co-author of Arboleda-Florez and Copithorne: Mental Health Law and Practice and former counsel to the Calagary WHO Centre.

Cheryl Hoffner is the Psychiatric Designation Coordinator for the Calgary Regional Health Authority.
COPYRIGHT 1998 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1998 Gale, Cengage Learning. All rights reserved.

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Author:Copithorne, Margaret; Hoffner, Cheryl
Date:Dec 1, 1998
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