Review of Mental Disorders Provisions of the Criminal Code
April 20, 2005
The Honourable Lise Bacon
Chair, The Standing Senate Comittee on Legal and Constitutional Affairs
The Senate
Ottawa, ON K1A 0A4
The Hon. Ms. Bacon:
Re: Submission on Bill C-10: An Act to Amend the Criminal Code (Mental Disorder) and to Make Consequential Amendments to Other Acts
The Psychiatric Patient Advocate Office (PPAO) appreciates the opportunity to participate in the review of the Mental Disorder Provisions of the Criminal Code. Attached is our submission, which we have previously provided to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, House of Commons. Our submission is made on behalf of our clients, vulnerable persons with a mental illness and highlights our concerns and offers recommendations to redress them.
The PPAO is an arm's length program of the Ontario Ministry of Health and Long-Term Care established in 1983 to promote the civil and legal rights of persons with mental illness in provincial psychiatric hospitals through individual and systemic advocacy and education. The PPAO also responds to any systemic concerns of a provincial nature affecting these individuals as citizens. The PPAO works to empower these individuals to improve their quality of life, to uphold their rights as citizens and to make informed decisions about their care and treatment. In Ontario, the PPAO has extensive involvement with forensic clients in the mental health facilities where we provide service.
The PPAO is supportive of many of the clauses in Bill C-10 but has identified several areas where there is room for improvement. We hope that our submission clarifies the concerns we have heard from our clients. Many of our clients talk of the stereotypes that the public holds with respect to their illness and involvement in the forensic system, which ultimately leads to stigma and discrimination. It is in this light that we ask the Committee and the government to consider our submission.
We encourage the committee and federal government to consider our recommendations and to move forward with this legislation. Successful implementation will require the dedication of resources, a broad based public education campaign, and engagement of all stakeholders, including individuals who have been found unfit to stand trial or not criminally responsible.
Once again, thank you for the opportunity to have input into this very significant piece of legislation.
Sincerely,
Original signed by
_______________________
David Simpson
Program Manager
Submission
of the Psychiatric Patient Advocate Office to the Standing Senate Comittee on Legal and Constitutional Affairs
Re: Bill C-10: An Act to Amend the Criminal Code (Mental Disorder) and to Make Consequential Amendments to Other Acts
April 20, 2005
Contents
Background
Introduction
Preamble
Guidelines for Provincial Review Boards
Guidelines for Forensic Facilities
Victim Impact Statements
Right to Annual Hearing and Mandatory Attendance
Treatment Orders
Stigma, Discrimination, and Criminalization of Mental
Illness
Conclusion
Summary of Recommendations
Addendum:
Transcript of PPAO's testimony to the Senate Committee
Background
The Psychiatric Patient Advocate Office ("PPAO"), an arm's-length program
of the Ontario Ministry of Health and Long-Term Care, has been advocating
for strengthening the rights of persons with serious mental illness
since 1983. With field offices located in the current and former provincial
psychiatric hospitals, the PPAO has a unique perspective on the effects
of the Mental Disorder provisions in the Criminal Code ("Code").
Patients who have a mental illness and who find themselves in contact with the criminal justice system (forensic clients) represent a significant portion of our client-base. We are involved in both individual and systemic advocacy as well as public education. We participate in inquests, work with clients and their counsel in matters involving the Ontario Review Board and facilitate client-centred policies and best practices within hospitals. We are pleased to provide this submission for your consideration as you modernize the law to protect the rights of forensic clients and ensure they are treated fairly and equitably.
The PPAO previously made submissions to the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. In these submissions we present several recommendations that we believe are still relevant and which speak directly to the barriers faced by forensic clients.
Introduction
The PPAO, having advocated on behalf of forensic clients for a number
of years, has serious concerns about the forensic mental health system
in Ontario. Forensic clients have consistently reported frustration
with a system that fails to provide individual care, lacks effective
rehabilitative programs, and removes a sense of hope.
Forensic clients also report that the system fails to provide meaningful employment opportunities, education, re-training, socialization and recreation, making successful rehabilitation and re-integration into the community very difficult. The invisible barriers linked to stigma rear their heads and thwart similar efforts once in the community.
The forensic system is, in many cases, more reflective of a correctional facility that a hospital, where security takes priority over care and treatment. For some the system represents an unrealistic living arrangement without any mechanism to vent because the consequence of doing so can be construed as evidence of a significant risk to public safety, while staff and the general public maintain this right. Others complain of having to be 'perfect' to get out of the system. To restore balance, the forensic system must adopt more of a recovery focus rather than a punitive focus. It must become client-centred by providing a feedback mechanism for forensic clients and families of forensic clients. Only then will forensic clients be treated with the same respect and dignity afforded to any person in need of care.
The PPAO recommends that the Mental Disorder provisions in the Code have a purpose or pre-amble. The language in this section should reflect the purpose of the legislation to ensure that persons subject to the relevant provisions are treated with dignity, respect, and fairness.
Recommendation
- The PPAO recommends that the Code be amended to include a statement of purpose with respect to the Mental Disorder provisions to emphasize the goal of recovery and reintegration into society.
2: Guidelines for Provincial Review Boards
The PPAO previously recommended that the Code be amended to provide guidelines to provincial Review Boards with respect to dispositions, rehabilitation, and dangerousness. Many clients complain of Review Board dispositions authorizing placement in the community, but a lack of appropriate community resources denies them the opportunity. Many clients are 'warehoused' in facilities, such that it is not unusual for forensic clients to reside in a hospital for twenty plus years. Such realities do not comply with the Code, which requires placement in the least onerous and least restrictive environment, and Review Boards are not given power under the Mental Disorder provisions to enforce their dispositions.
As the principles of rehabilitation and reintegration are as important to dispositions as public protection, specific factors relevant to rehabilitation should be articulated in the Code. Again, Review Boards should be given the authority to order that the myriad needs of the forensic client be addressed, and have the corresponding authority to enforce such orders.
Many clients report that undue emphasis continues to be placed on forensic clients' index offences or current inappropriate behaviours rather than dangerousness. The common law duty created in Winko[1], requiring Review Boards to make positive findings of dangerousness, should be codified and strengthened in the Code. This arises from the fact that Review Boards have not operationalized the Supreme Court's recommendations in Winko to seek out evidence that supports release. This has increased the numbers of forensic clients detained on trivial offences who languish in the system for extended periods of time.
Unfortunately, undue emphasis is placed on behavioural issues associating with institutionalized living, detention and historical or static factors as opposed to dynamic factors such as current condition and current level of risk. The Mental Disorder provisions in the Code need to ensure that those persons who find themselves in the forensic system don't remain there for longer than necessary.
Recommendations
- The PPAO recommends that timelines for compliance be introduced into dispositions, and that Review Boards be given the authority to enforce and order compliance with dispositions.
- The PPAO recommends that the Code specify the factors to be considered in determining the least onerous and restrictive disposition, and a range of treatment modalities to address rehabilitation needs, in keeping with the forensic client's wishes and choices.
- The PPAO further recommends that 'dangerousness' be defined in the Code and specifically drafted to exclude 'undesirable' or 'inappropriate' behaviour that does not pose a risk.
3: Guidelines for Forensic Facilities
As a consequence of divestment, many forensic beds have been transferred from Provincial control to the charge of public hospitals. The lack of central oversight has resulted in inconsistent and fluctuating policies that hinder rehabilitation and reintegration efforts. For example, there is currently no uniform standard or definition for security levels such that some minimum secure level forensic clients are subjected to the same restrictions as those in medium secure levels.
A further concern voiced by forensic clients is that although s. 672.56 of the Code allows for Board Reviews following seven days of increased restrictions on liberties, overly broad dispositions allow for broad and restrictive interpretation by facilities, who despite having the obligation to report to the Review Board, often fail or refuse to do so. At present, there is no accountability mechanism or penalty provision in the Code for facilities that fail to report such restrictions. The process for adjournments of these hearings should be initiated and driven by the forensic client.
Finally, forensic patients are currently subject to random searches, restrictions on communication and speech, and restrictions on employment opportunities not related to their index offence. Facilities adopt security protocols that mirror those of the correctional system to institute higher security levels than the forensic client's history and behaviour do not warrant.
Recommendations
- The PPAO recommends that the Code clearly define levels of custodial restrictions.
- The PPAO recommends that the Code clarify the phrase 'restriction on the liberty of the accused' to give guidance to facilities that must apply to the Review Board for a hearing, and further, that the Board be given authority to order compliance with s. 672.56 of the Code.
- The PPAO recommends that the Code be amended to ensure that regardless of whether a facility files for a restriction of liberties hearing, the regular annual review should proceed. Furthermore, only the forensic client should have the right to waive such hearings.
- The PPAO further recommends that the Code specify that a forensic client's rights are not altered unless specifically stated by the Code or by the disposition.
The PPAO is concerned about the proposed changes to the Mental Disorder provisions allowing victim impact statements to be presented at Review Board hearings. Victims deserve recognition and a voice, but in the appropriate forum. Historically, victim impact statements allow victims of crime to provide input into the sentencing process; however, mentally disordered accused persons deemed not criminally responsible are not sentenced and are instead considered patients. The goals of Review Boards are quite distinct from criminal courts. The PPAO questions how such statements would be effective in a process designed to rehabilitate and reintegrate individuals found not criminally responsible, and determine current condition and level of risk.
Ultimately, such statements will divert the Review Board from concentrating on relevant evidence relating to the current condition of the forensic client resulting in the least onerous and least restrictive disposition. Such statements focus exclusively on the effect of the forensic client's actions while they were potentially at the low point in their illness, and neglect other considerations such as the potential for rehabilitation and reintegration.
Recommendation
- The PPAO recommends that clause 16(3), which permits victim impact statements to be presented at Review Board hearings, be repealed and that a more appropriate forum be considered for such statements.
5: Right to Annual Hearing and Mandatory Attendance
The PPAO does not support the proposal to permit Review Boards to hold hearings later than 12 months after a forensic client's recent disposition. Persons whose liberties have been severely restricted are entitled to annual reviews to ensure that the disposition is being followed, and that the person is in the least restrictive environment possible. The proposed amendments make assumptions about forensic clients, in particular their clinical progress, and appear to impose a presumption of dangerousness on the forensic client, which the Supreme Court of Canada (in Winko) deemed inappropriate and possibly discriminatory.
Some forensic clients might also wish to self-represent before the Review Board. In this regard the PPAO believes that it is crucial that unrepresented accused forensic clients have access to amicus curiae, or a friend of the court, to assist with strict legal matters, adjournment requests, etc., similar to the process in place at the Ontario Court of Appeal when a Review Board disposition is appealed.
The PPAO is opposed to any amendment to the Code authorizing Review Boards to compel a forensic client's attendance before a Review Board. The PPAO respects Review Boards' ability to compel the attendance of witnesses, but some clients choose not to participate in the process and have their legal counsel attend in their place to protect their rights. Still others prefer to attend but not give evidence. To compel the attendance of forensic clients is an abusive and paternal amendment that has no role in the forensic system, particularly where victim impact statements may be presented year after year. Indeed, forcing a forensic client to undergo such a process could be counter-therapeutic and frustrate efforts at rehabilitation.
Recommendations
- The PPAO recommends that Review Boards continue to hold hearings no later than 12 months after each forensic client's disposition, and that duty counsel or an amicus curiae process be instituted to assist unrepresented forensic clients before the Review Board.
- The PPAO recommends that clauses 31 and 32 relating to s. 672.85 of the Code be repealed and that forensic patients retain the right to choose how they wish to participate in the process.
There is no more important principle in medicine and law than treatment with consent. The PPAO remains very concerned with court ordered treatment orders under s. 672.58 of the Code. Ontario's Health Care Consent Act ("Act") deems each person capable of consenting to treatment unless found otherwise. It also provides for the treatment of individuals who are found incapable of making their own treatment decisions through the consent of a substitute decision-maker ("SDM"). The Act requires the SDM to consider the incapable person's prior capable wishes and, if none apply, the best interests of the individual according to specific criteria.
Recommendation
- The PPAO recommends that the treatment disposition section in the Code be repealed and a mode of consent-based treatment be adopted similar to that under Ontario's law..
7: Stigma, Discrimination, and Criminalization of Mental Illness
The PPAO is pleased that the Federal government supported the development of education programs for stakeholders and the public, but feels that the Federal government needs to take a proactive leadership role given the national scope of the mental disorder provisions in the Code.
Many of our clients' illnesses are 'criminalized'. Rather than being diverted to receive care in the publicly accessible mental health system, individuals are charged with crimes, sometimes very minor offences, and diverted into the forensic system. Forensic patients are perceived as increased safety risks, leading to restrictive policies not clearly provided for under the law. Even within the hospital setting, some patients are still being charged criminally by hospital staff for disputes between other patients or staff, acting-out or minor offences.
Once out in the community, clients face the dual stigmatization of having a mental illness and having had contact with the criminal justice system. The discrimination faced by forensic clients in their efforts to obtain housing, employment and social acceptance is well documented in literature, and in the PPAO's opinion unacceptable. There is another population within the forensic system who faces even higher even higher hurdles in the community, namely those individuals with a mental illness and a developmental disability.
There must be a concerted effort on the federal government's part to address community fears of mental illness and violence if individuals with serious mental illness are to achieve their full potential and reintegrate into a welcoming community with a wide array of supports.
Recommendation
- The PPAO recommends that a Federal-Provincial-Territorial working group be promptly established to undertake an extensive education campaign aimed at tackling the stigma facing forensic patients. The working group must include a variety of stakeholders, including consumers, to promote tolerance, understanding and acceptance of individuals with a mental illness.
Conclusion
Echoing our previous submissions, the PPAO again encourages the Standing
Senate Committee on Legal and Constitutional Affairs to continue to
consult with the public and stakeholders on this very fundamental legislation.
We advocate for equitable treatment for individuals with mental disorders
or impairments and see the Mental Disorder provisions in the Code
as a key mechanism to rehabilitate and reintegrate persons with mental
illness and help them participate fully in society. We encourage the
Committee to review our recommendations and implement them to reflect
Canada's leadership in the area of rehabilitation and reintegration.
The PPAO believes that there is much to be done before we could have an inclusive and welcoming society for individuals with mental disabilities. We are confident, however, that Canada can rise to meet this challenge. Doubtless, it will take much effort on the part of all stakeholders, but with modern and progressive Mental Disorder provisions in the Code that focus on restorative rather than punitive justice, the dream will become a reality.
David Simpson
Program Manager
- The PPAO recommends that the Code be amended to include a statement of purpose with respect to the Mental Disorder provisions to emphasize the goals of recovery and reintegration into society.
- The PPAO recommends that timelines for compliance be introduced into dispositions, and that Review Boards be given the authority to enforce and order compliance with dispositions.
- The PPAO recommends that the Code specify the factors to be considered in determining the least onerous and restrictive disposition and a range of treatment modalities to address rehabilitation needs, in keeping with the forensic client's wishes and choices.
- The PPAO further recommends that 'dangerousness' be defined in the Code and specifically drafted to exclude 'undesirable' or 'inappropriate' behaviour that does not pose a risk.
- The PPAO recommends that the Code clearly define levels of custodial restrictions.
- The PPAO recommends that the Code clarify the phrase 'restriction on the liberty of the accused' to give guidance to facilities that must apply to the Review Board for a hearing, and further, that the Board be given authority to order compliance with s. 672.56 of the Code.
- The PPAO recommends that the Code be amended to ensure that regardless of whether a facility files for a restriction of liberties hearing, the regular annual review should proceed. Furthermore, only the forensic client should have the right to waive such hearings.
- The PPAO further recommends that the Code specify that a forensic client's rights are not altered unless specifically stated by the Code or by the disposition.
- The PPAO recommends that clauses 16(3) and 21, which permit victim impact statements to be presented at Review Board hearings, be repealed and that a more appropriate forum be considered for such statements.
- The PPAO recommends that Review Boards continue to hold hearings no later than 12 months after each forensic client's disposition, and that duty counsel or an amicus curiae process be instituted to assist unrepresented forensic clients before the Review Board.
- The PPAO recommends that Clauses 31 and 32 relating to s. 672.85 of the Code be repealed and that forensic patients retain the right to choose how they wish to participate in the process.
- The PPAO recommends that the treatment disposition portion of the Code be removed and a model of consent and substitute decision-making be adopted similar to that in Ontario's law.
- The PPAO recommends that a Federal-Provincial-Territorial working group be promptly established to undertake an extensive education campaign aimed at tackling the stigma facing forensic patients. The working group must include a variety of stakeholders, including consumers, to promote tolerance, understanding and acceptance of individuals with a mental illness.
Footnotes:
[1] Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 (hereinafter: "Winko")
