A Practical Guide To Mental Health And The Law In Ontario

OVERVIEW OF LEGISLATION RELEVANT TO MENTAL HEALTH CARE IN ONTARIO

1. Introduction

   We are fortunate to be writing this Toolkit at a time when mental illness is receiving much needed attention in Ontario and across Canada.

   In March 2007, the federal government appointed Senator Michael Kirby to chair the Mental Health Commission of Canada and charged the Commission with the task of developing a national strategy for setting priorities and coordinating services in mental health care. In May 2012, the Commission released a long awaited national mental health strategy: "Changing Directions, Changing Lives: A Mental Health Strategy for Canada".1 With its ongoing mandate, the Commission continues to work towards improving access to mental healthcare in Canada, with such initiatives as the Knowledge Exchange Centre to ensure the public dissemination of the Commission's research, programs, guidelines and tools.2

   In June 2011, the Ontario government launched a mental health and addictions strategy, entitled "Open Minds, Healthy Minds".3 The strategy focuses on providing children and youth with greater access to mental health and addiction services. In November 2014, the strategy was expanded to support the transition between youth and adult services and to improve the quality of services for Ontarians of all ages, through the funding of certain initiatives.4 While there is still much work to be done, at present, the provincial government appears committed to improving access to mental health and addiction services as a core priority.

   Mental health care is regulated by both provincial and federal legislation. Generally, under Canada's Constitution, health is considered a provincial matter, while the criminal law is a federal concern. The ways in which these two levels of governmental power overlap creates tension as the criteria for involuntary admission under the civil law of the province differs from the law governing the detention and eventual release into the community of the mentally disordered criminal offender. At the same time, the civil and forensic regimes look to the province's mental health care system to support the needs of mentally ill persons that each regime strives to address.

   As noted in "Changing Directions, Changing Lives", in any given year, one in five people in Canada experiences a mental health problem or illness, with a cost to the economy of well in excess of $50-billion.

   The intersection of law and medicine is never far below the surface when a patient and the health care team are discussing options for treatment. Ontario's law of consent to treatment, for example, has been designed to apply universally to all types of treatment in a wide variety of settings. Regardless of whether the setting is an out-patient clinic or a specialized psychiatric facility, there are special considerations in the mental health care context that we will address in this Toolkit. As one author has pointed out:

   The treatment of psychiatric patients raises legal issues that ordinarily do not arise in the treatment of other illnesses. The fact that patients are often detained against their will places a high priority on the protection of individual rights within the treatment facility. Consequently, administrators and health professionals who work in the mental health field must be as sensitive to legal issues as they are to medical issues. Decisions about treatment of psychiatric patients will often receive a high degree of scrutiny from tribunals or boards charged under the provincial legislation with the review of such decisions. For courts and tribunals, the question whether treatment is authorized by law may eclipse any question about the quality of the treatment administered and whether or not it was effective. This is because courts and tribunals are concerned with process issues. If the process is inadequate, there is likely to be negative comments on the health care providers and institution regardless of the outcome for the patient.5

   In Ontario, mental health...