By Alicia Maiuri, J.D. 2015, University of Ottawa Faculty of Law

While the protection of the public safety is a legitimate and often cited reason to enact or amend legislation, concern should also be had to the potential adverse impacts that touting a public safety agenda to support the introduction of a CTO regime could have on persons with severe mental disorders.

Elizabeth Witmer, Ontario’s former Minister of Health, introduced Bill 68, An Act in Memory of Brian Smith on April 25, 2000. Bill 68 received overwhelming support by members of the Legislative Assembly, passing with a vote of 82 to 10 within less than two months after its first reading. The legislation, which came into force on December 1, 2000, amended Ontario’s Mental Health Act (“MHA”).

As a part of the amendments to the province’s MHA, physicians could now issue community treatment orders (“CTOs”) to persons with severe mental disorders if certain criteria were satisfied. The purpose of the amendment, at least as described in the MHA, is to provide outpatient treatment to “revolving door” patients — those persons who are institutionalized, stabilized, and respond well to treatment only to relapse and become re-institutionalized — by providing them with community-based treatment or care and supervision that is less restrictive than being in a psychiatric facility.

Physicians’ decisions to issue CTOs are reviewable by the province’s Capacity and Consent Board, on request of persons subject to the order or their substitute decision-makers (“SDM”). A CTO will expire six months after it is issued, unless it has been renewed or terminated earlier at the request of the person subject to the order or his/her SDM.

Impetus behind the Amendments

Among others, the deaths of Brian Smith and Charlene Minkowski were widely publicized  and, arguably, catalysts behind the swift amendments to the MHA and the introduction of CTOs under Bill 68. Jeffery Arenburg, a man suffering from paranoid schizophrenia, killed Smith, an Ottawa sportscaster. Herbert Cheong, a man who had also been diagnosed with schizophrenia, pushed Minkowski to her death as she awaited her subway train.

A reading of Bill 68’s legislative debates demonstrates that concerns for public safety in the wake of these events informed the provincial legislature’s decision to amend the MHA to introduce a CTO regime. Member of Provincial Parliament, Mr. Doug Galt, said the purpose of Bill 68 was to prevent another incident similar to Brian Smith’s from occurring again. He stated, “Just one Brian Smith is one too many to have happened.” (Legislative Debates, page 3433). In a similar vein, the Ontario Psychiatric Association (“OPA”) felt that the amendments to the MHA would protect the public from mentally ill Ontarians and it was partly for this reason that they supported the amendments. (Legislative Debates, page 3430).

CTOs: Potential Adverse Consequences

While the protection of the public safety is a legitimate and often cited reason to enact or amend legislation, concern should also be had to the potential adverse impacts that touting a public safety agenda to support the introduction of a CTO regime could have on persons with severe mental disorders.

Consider, for example, that the risk of homicide committed by persons with mental disorders is low; the risk of homicide by schizophrenics is less than 1 percent. (Thompson and Empowerment Council, page 7).  In fact, persons with mental disorders pose more of a threat to themselves than they do to others; suicide is far more frequent than homicide. (Legislative Debates, page 3475). Data from the Canadian Mental Health Association shows that persons with mental disorders are more susceptible to being a victim of violence themselves than they are perpetrators of violence.

Moreover, the successful implementation of a CTO regime relies, as the name suggests, on the availability of community-based resources. The province, however, introduced its CTO regime despite a total inadequacy of mental health resources. (Legislative Debates, page 3470). This issue was addressed during Bill 68’s legislative debates. The province had already identified a figure of approximately $600 million to meet current needs for community-based mental health services and this figure did not account for the additional resources that would be required to support CTOs. (Legislative Debates, page 3475). Members of Provincial Parliament expressed their concerns that there was no room in the province’s budget to allocate additional funds to support mental health initiatives in the community. (Legislative Debates, page 3471).

Introducing a CTO regime without sufficient community-based mental health resources also concerned patients and patient advocacy groups that CTOs would be used to medicate patients. Such fears were premised on the fact that limited beds in hospital psychiatric wards and the closure of psychiatric institutions, absent community-based resources, could result in a physician’s exclusive reliance on the only available outpatient treatment: medication.

The potential for increased reliance on medication could also compromise the patient-physician relationship among patients who are reluctant to rely on medication as their primary form of treatment. In fact, R.A. Malatest & Associates Ltd.’s 2005 review of the effectiveness of Ontario’s CTO regime found that patients who were forcibly medicated under a CTO were reluctant to seek help in the event of relapse once their CTO had been terminated.

The Saint Michael’s Hospital of Ottawa and the Ottawa’s Psychiatric Survivor Group feared that CTOs would also compromise the patient-physician relationship by making it coercive. (Legislative Debates, page 3473). The Psychiatric Survivor Group said CTOs could compromise the trust that has been established between mentally ill patients and their physicians. (Legislative Debates, page 3473). A survey of 85 mental health professionals and 104 individuals with schizophrenia spectrum conditions conducted by Marvin Swartz, Jeffrey Swanson, and Michael Hannon found that 36 percent of participants avoided treatment out of fear of being subject to coerced treatment. P.J. Fischer and W.R. Breakey’s study showed similar results, finding that involuntary treatment of any kind resulted in persons with mental disorders choosing homelessness rather than institutionalization, in part to avoid psychotropic medication.

 Recommendations: Room for Reform

Guaranteeing a basic set of services could ensure that mentally ill individuals, regardless of where they reside in Ontario, will receive an equal level of care. This could help to successfully reintegrate severely mentally ill persons as they make the transition from institutionalized care into the community and decrease the likelihood of medication, on its own, as the principal form of treatment. Perhaps a minimum list of community supports services could have been written into the legislation.

Moreover, in an attempt to eliminate the perceived coerciveness of CTOs the legislation could be amended so that CTOs are no longer referred to as treatment “orders” but rather, as treatment “agreements.” In fact, Members of Provincial Parliament alluded to this amendment during Bill 68’s legislative debates. (Legislative Debates, page 3480). Arguably, simply changing the name could help to restore the patient-physician relationship by re-building the trust that was compromised by the coercive nature of CTOs. Viewing a CTO as an agreement among patients and their physicians would reinforce the notion that this type of treatment is a joint effort by patients and their physicians.

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