Pay now or pay later: Addressing one of the hidden costs of divestment
CrossCurrents
The Last Word
Editorials do not necessarily reflect the views of CAMH. We welcome submissions from our readers. For information, contact
the Editor, crosscurrents, 33 Russell St., Toronto, Ontario M5S 2S1, tel 416 595-6714, e-mail hema_zbogar@camh.net.
Nobody ever thought that divestment of provincial psychiatric hospitals in Ontario could risk the delicate balance that underlies
our mental health legislation. But that is precisely what is happening. We need to understand the threat and take steps to
address it or else serious consequences are likely to result.
Mental health law is an attempt to reconcile the irreconcilable. The patient's right to treatment, care and safety as well
as issues of public safety must be balanced with the patient's right to autonomy and self-determination. The law has been
structured to reflect this dynamic and the day-to-day implementation of the law must reflect it as well if the system is to
function properly. This delicate balancing act plays out every day as clinicians apply the law on the unit, patients and physicians
appear before the Consent and Capacity Board (CCB) and CCB decisions are appealed to the courts.
In the days of the provincial hospitals, the administrators of those facilities had access to legal advice, staff had the
benefit of ongoing education provided by government lawyers and there was access to lawyers for consultation and, in special
circumstances, to legal representation for Board hearings. Experienced legal counsel was automatically assigned whenever a
Board decision was appealed to the courts. Since the vast majority of court appeals arose from the provincial hospitals, this
meant that counsel for both sides skilfully argued cases and the courts had the input required to reach an informed, balanced
decision. This, in turn, resulted in a thoughtfully reasoned, balanced body of case law.
Divestment has brought about substantial changes. Hospital administrators, who may be relatively new to mental health, may
not be aware of the direct supervisory role assigned to them by the Mental Health Act or their personal liability under that
act if the rules are not followed. They may be loath to bring in legal counsel because of cost, or they may not understand
the intricacy of the issues. In-house education in mental health law is often not a priority in these cash-strapped times.
And administration may not understand that the practice of hospital-based psychiatry is a unique partnership between clinicians
and administration, requiring legal support for the physician as appropriate. As a result, many physicians no longer have
access to legal consultation and representation when necessary, and there is often less than full enthusiasm for providing
expensive legal assistance when matters move from the Board to the court. All of this is happening at the same time that the
patient bar, always committed and energetic, is becoming more experienced and organized.
Unless physicians appearing before the CCB have legal backup when urgently required, the Board will lack the raw material
it needs to reach a just and legally correct decision. In addition to compromising patient care and physician morale, the
resulting Board decisions may confuse and distort the system and lay a poor foundation for later review by the courts.
Thoughtful, well-reasoned court decisions are crucial because they set precedents that are binding on everyone in the system.
A less than fully balanced decision can skew the entire system and cause a great deal of trouble for clinicians, administrators
and patients. Judges, however, are only human and can only be expected to consistently reach thoughtful, balanced results
if the Board decision being reviewed is informed, thoughtful and well reasoned, and there are skilled advocates before the
court arguing the issues from all perspectives. As the resulting problematic court decisions begin to accumulate, the risks
to the system are substantial.
The solutions are obvious:
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Ongoing and vigorous mental health law training should be an important part of every hospital's education program.
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Experienced mental health counsel, whether in-house or private, should have input into the formulation of mental health and
consent policies and protocols including related policies and practices of the medical records department.
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Keeping in mind obvious financial limitations, clinicians must be able to occasionally consult counsel when preparing for
CCB hearings and to obtain legal representation for hearings on those rare occasions where the legal issues, complexity or
high stakes dictate it.
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Most importantly, every single appeal from the Board to the Courts merits vigorous legal representation. Hospital administrators
must understand that it is the hospital's responsibility to provide and fund this assistance.
The CCB must also take the effects of divestment into account and redouble its efforts to ensure quality and consistency.
Board members, like family court judges, must hone the fine art of doing justice, while dealing with unrepresented parties.
To do this, they must receive vigorous initial training and ongoing education and must have access to appropriate written
materials, peer mentoring and highly experienced legal counsel.
There is also a role for umbrella groups such as the Ontario Psychiatric Association, the Ontario Hospital Association, the
Mental Health Legal Committee, the Psychiatric Patient Advocate Office and the Schizophrenia Society of Ontario. These groups
should do their utmost to ensure that sufficient resources are in place and that appropriate practices are implemented and
followed.
There is no shortage of well-meaning people on the administrative, government, clinical and legal sides of the mental health
world. The fixes may be difficult and may consume some of our scarce resources. However, they are necessary. In fact, the
risks to the system if they are not implemented are so serious that there really is no other option.
Michael Bay, Juris Doctor, is a mental health and administrative lawyer. He is also an assssociate professor with the Department
of Psychiatry and Behavioural Neurosciences at McMaster University in Hamilton, Ontario, and the former chair of the Consent
and Capacity Board.
Centre for Addiction
