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 Centre for Addictionand Mental Health |
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Who do hospitals need: More good doctors or more good lawyers? CrossCurrents Spring 2004CrossCurrentsLast Word
Michael Bay is a highly respected Canadian attorney specializing in mental health law. He not only has a deep knowledge of
the subject, but also first-hand experience as former chair of the Consent and Capacity Board of Ontario (CCB). Given his
credentials in this highly specialized field, and myself being a mere forensic psychiatrist, it is with some trepidation that
I undertake the task of providing a counterpoint to his article in the last issue of crosscurrents on the latest ailment about
to befall the mental health system of Ontario. Bay enlightens us about the role that lawyers are supposed to play while discharging these functions, but he does not tell us much about the expectations that mental health boards have of psychiatrists or hospital administrators who are not lawyers and who are not expected to act in that capacity. Nor does he tell us what interactions are expected of lawyers vis-à-vis psychiatrists while appearing in front of these boards. In the present climate of mental health reform, and given the thrusts for advocacy and protection of the human and political rights of mental patients, the legal parameters underlying new mental health systems go beyond the old battlefronts of wrongful commitment and the abuse of patients in old mental hospitals. Psychiatrists and administrators of mental health facilities are knowledgeable and ever vigilant to prevent abuses in these areas. The new challenges in mental health law are to ensure that minimum legal entitlements such as a home, a job and a friend - entitlements that nobody disputes to other citizens - not be denied to mental patients. These new challenges are fought at the ideological frontiers and political arenas and, occasionally, when courts of law hear cases of outright discrimination against the mentally ill. Seldom do these challenges come to the attention of boards such as the ORB or CCB. If psychiatrists and administrators were to become advocates of the rights of their patients, what would the role of lawyers be other than converting an amicus curiae situation into an adversarial Roman circus? These boards have been set up to protect the rights of patients. But protect them from whom? Psychiatrists and administrators of mental health facilities are not the enemy of patients and need no legal representation in front of these boards. If the issue is contentious, for example, when the psychiatrist recommends commitment that the patient or representative opposes, what is the psychiatrist's role, other than to give an honest opinion based on solid clinical knowledge and the scientific bases for the recommendation? What can a lawyer add to that? Psychiatrists or administrators do not appear in front of these boards to battle legal precedents. If their best scientific and clinical opinion is not accepted, that is a decision that the board, like any other judicial or quasi-judicial body, is entitled to make. In my opinion, it would be the board, not the psychiatrist or administrator, who must defend that decision in case of appeal. The boards also exist to protect patients' rights, so postponing this responsibility by adding layers or volumes of legal argumentation does not make the decision easier or less momentous for the patient. The issue, therefore, is not only financial, but ideological, as well. Financially, we as Canadians have a collective responsibility to ensure that our health system does not collapse under the weight of demands that, even if reasonable, could be done without or could be assumed by the professionals already in the system. Faced with a choice between doctors, nurses, occupational therapists or lawyers, who would a patient choose? What would a responsible administrator decide? It certainly would not be practical to add another layer of professionals to a system already overburdened by demands and incapable of sustaining an adequate number of nurses and physicians to meet these demands. Legal services do not come cheap; over-legalizing the system will simply divert precious health dollars to needs that may no longer exist. A very strong argument, therefore, would have to be made to add lawyers to the payroll, especially when clinicians are not the enemies of patients' rights and exist, first and foremost, to provide them with the best treatment and to advocate for and protect their rights. Ideologically, if clinicians are not the patient's enemy and if their role is to advise the boards to the best of their clinical
and scientific ability, why would they need to arm themselves with a cadre of lawyers? Why distort the optics that the patient,
the board and the patients' advocates should have of the clinicians? What we need is not the fast fix that Bay advocates,
but a vigorous debate on the role of clinicians and lawyers in the mental health system and a clear statement of the expectations
of both when they appear in front of the mental health boards. Dr. Julio Arboleda-Florez is head of the Department of Psychiatry at Queen's University in Kingston, Ontario. |
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Last updated: February 17, 2005 2:19 PM Published: July 01, 2011 7:19 AM ID#5683-R |