Part I – The Treatment of Treatment Orders For Treating the Accused: Centre for Addiction and Mental Health (CAMH) v Ontario
On May 24, 2012, the Ontario Court of Appeal (“ONCA”) released a sensitive and nuanced judgment that promises to polarize opinions and provide plenty of fodder for thought regarding the handling of criminally accused mentally ill persons. On the one hand, the Centre for Addiction and Mental Health (CAMH) v Ontario, 2012 ONCA 342 [CAMH], on appeal from the Court of Justice of Ontario, considered the dignified and timely treatment of mentally ill persons who are deemed unfit to stand for trial to ensure that they can do so. On the other was the ONCA’s concern that limited public resources such as hospital beds in treatment facilities should be distributed in as fair a manner as possible. This ultimately led to the ONCA’s ruling that the trial judge’s decision to ensue a treatment order “forthwith” could not stand, as it overrode the consent requirement of the health facilities that were designated to treat mentally ill accused persons.
The facts of this case did not focus on the actual alleged criminal act of the accused (sexual assault), but on the judicial processes employed to ensure he was given the appropriate treatment once he was deemed unfit to stand for trial. Justice Hogan, who heard the case at Court 102, Ontario’s “Mental Health” Court, issued a “treatment order” on a “forthwith” basis under section 672.58 of the Criminal Code, RSC 1985, c C-46, [CC], essentially compelling the Centre for Addiction and Mental Health (“CAMH”) to immediately treat Conception, so that he would not be detained in jail until a hospital bed became available for him.
A treatment order is a court-mandated directive that ensures accused persons are given the necessary medical care to enable them to be fit to stand trial, in instances where they are found mentally unfit to do so. In CAMH, Justice Hogan had considered expert psychiatric evidence in finding that the accused, Brian Conception, needed such treatment, and issued an order deeming that such attention must be given to Conception at once. The serious nature of the directive, coupled with the fact that neither of the two designated facilities had a bed for Conception immediately created a problem with respect to the order’s execution. The delay between the issuance of the order, and an availability of a bed for Conception would have been six days, which Justice Hogan was not prepared to accept. In a forthright exchange with Crown counsel, she accepted that while pushing for Conception to receive treatment in priority would lead to someone else being displaced on the list of patients, she had made her determination after hearing expert evidence, and had considered the best interests of the accused. The following quote reflects the dilemma behind her decision to issue a “forthwith” order:
“If someone is in such a condition that they have to be the subject of a treatment order, where they are being forced to take medication…. and I have made that determination based on expert evidence…. then that means now, it does not mean that a treatment order is necessary next Monday….”(para 15, emphasis in original).
On appeal however, this issue had evolved into one of consent of the CAMH, the facility where Conception was ultimately left in the hallways to be treated, in spite of the administrators’ clear indication that there was no free bed for him. Under section 672.62 of the CC, a designated mental health treatment facility’s consent is to be obtained before any accused can be sent to it for treatment. The reasoning behind this was to enable hospital administrators to determine “who required priority of treatment” (para 14), in the interests of balancing fair distribution of their resources to the public. The tension arose because of Justice Hogan’s concern that a mentally ill patient-accused should not be made to wait in jail cells until a bed was found for him or her, primarily because prisons are ill-equipped to provide adequate care and treatment to such persons. The idea behind issuing the order was also to ensure that Conception could stand trial as soon as the treatment made it possible for him do so safely and in good mental health, thus also creating an efficient trial process.
Analysis of the ONCA
The issues at appeal, then, focused on the validity of the treatment order in the face of the consent requirement and its constitutionality under the Charter. The latter aspect of the analysis considered whether Conception’s section 7 rights would have been infringed in the face of the consent requirement, as a failure on the part of the CAMH to issue its willingness to treat him immediately would have led to his being detained in jail until a bed became available. One final point was with respect to the mootness of the case, since the accused had already been treated, and had stood at trial by the time this appeal was heard. Here, the ONCA deemed that because this issue is one that has come up quite often in cases dealing with mentally ill persons as alleged offenders, it was worth revisiting, so that future rulings would have a point of reference on the matter.
Justice Blair, in writing for the majority, ruled that the consent requirement continued to be constitutional. He drew a distinction between the general consent of the CAMH with respect to agreeing to have mentally ill accuseds brought to its facility and treating them on a regular basis, from its specific lack of consent to treat Conception stemming from an unavailability of beds. He also pointed to the fact that the consent requirement was designed to ensure that the patient would get adequate and safe treatment; hence, overriding this through a treatment order could not be justified as being in the patient’s best interests.
Justice Blair then turned his attention to the argument that the consent requirement violated Conception’s section 7 Charter rights, namely that a refusal by the CAMH would have automatically led to his detention in a prison facility. He recognized the seriousness of the consequences, which, apart from the obvious denial of liberty, also would have placed Conception in a vulnerable position, perhaps even threatening his safety. Justice Blair noted that while jails were obviously not equipped to deal with mentally ill accuseds, it forced an entire institution to prioritize a single patient over those who might have been waiting already, raising concerns of fairness. Further, he was quick to note that the court’s orders were primarily focused on the legal effects of speeding up Conception’s treatment – that he would be fit to stand for trial as soon as possible – rather than any medical concerns – that his condition might be exacerbated if he were left untreated for six days.
Keeping this in mind, Justice Blair then pointed out that even though Conception’s section 7 rights could have been violated by the CAMH’s refusal, the unconstitutionality aspect would have been triggered if the violation had been unjustifiable under the principles of fundamental justice. And in this case, the broader framework of the consent requirement was emphasized by the ONCA, namely that it is contextual. A refusal on the part of hospital administrators to immediately accommodate a mentally ill accused, as long as it was on reasonable grounds, was thus found consistent with the principles of fundamental justice. As such, Justice Blair noted that this case was not one of consent being withheld for arbitrary reasons, and hence, Justice Hogan should have deferred to the opinions of the hospital administrators here.
The ruling is a controversial one, and has sparked many concerns about the treatment of mentally ill accused persons versus the policy rationale behind the fair distribution of already-strained public resources. Stay tuned for part II of this commentary next week, which focuses on the broader picture, and will engage in an analysis of the many voices that are involved in this debate.