Introduction
Canada provides publicly funded health care which is governed regionally by its ten provinces and three territories. Mental health legislation differs across the country, but most jurisdictions follow similar principles. Instead of being considered a strict legal issue requiring court authorization as in the US, most Canadian jurisdictions regard involuntary admissions as medical matters that are authorized by physicians, subject to specific criteria set out in the relevant mental health legislation. In all jurisdictions, involuntary admission may be authorized when a person has a mental disorder that poses a risk of harm to self or others. Jurisdictions vary with respect to their definition of a mental disorder, the probability, timing and nature of harm required for an involuntary admission, deterioration and physical impairment clauses, treatment requirements or clauses and whether a finding of incapacity is required for the involuntary admission. A number of jurisdictions specify the person must not be suitable as a voluntary patient. In interpreting involuntary admission criteria, one must look at all elements of the criteria and legislation as a whole.
Mental disorder definition
Ontario’s Mental Health Act contains the broadest definition of a mental disorder, specifying it is “any disease or disability of the mind.”1 In Quebec, the courts can order a temporary confinement if they have “serious reasons to believe that a person is a danger to himself or others owing to his mental state.”2
All other Canadian jurisdictions have more narrow mental disorder definitions. In British Columbia, a person with a mental disorder “means a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”.3 To meet British Columbia’s mental disorder definition, treatment for the disorder must not just be advisable, it must be required. Although differences exist, the remaining jurisdictions define a mental disorder or serious mental illness using similar language. As an example, in the Northwest Territories, a ““mental disorder” means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgement, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life.”4 A number of jurisdictions add that treatment5 or psychiatric treatment6, 7, 8 is advisable or that the disorder is amenable to treatment9 and three have exclusions either related to intellectual disability,10, 11 or acquired or congenital irreversible brain injury.12
A narrow mental disorder definition helps prevent legislative criteria from being applied over-broadly and focuses involuntary admission on those who require it due to serious mental illness.
Harm timing and probability
All jurisdictions permit involuntary admission when a mental disorder, serious mental illness or mental state is causing a risk of harm, if all other necessary criteria are met.
Most jurisdictions require the harm risk to be likely (Table 1), demonstrated on the standard of a balance of probabilities. Likely means a probable risk, one that is more likely than not (i.e. one that is greater than 50% on a balance of probabilities). Using this standard excludes involuntary admission for harms of lower likelihood.
Harm Probability Requirements
a New Brunswick: The person’s recent behaviour must demonstrate that due to the serious mental illness, the person is likely to cause serious harm.11
Probability estimates have limitations. They are imprecise and have been wrong. A “likely” requirement does not adapt to when a <51% risk may warrant involuntary admission, such as for extreme harm concerns, as with the risk for a bombing or mass shooting. In practicality, the acceptable risk varies with the severity of anticipated harm. Likely has been interpreted to have a temporal limit. The anticipated harm must be likely to “occur within some reasonably proximate time.”13
Some jurisdictions do not specify a required likelihood of harm for involuntary admission. Nova Scotia’s MHA makes no mention of “likely” harm. Rather, the person “is threatening or attempting to cause serious harm to himself or herself or has recently done so, has recently caused serious harm to himself or herself” or alternatively “is seriously harming or is threatening serious harm towards another person or has recently done so.”6 New Brunswick requires that the likely serious harm or deterioration risk be demonstrated in the person’s recent behavior.11
Focusing on current or recent harmful behaviour, at the exclusion of prior serious harm, removes an important risk factor in harm analysis, particularly when the prior serious harm is likely to be repeated given the patient’s presentation.Reference Gray, Shone and Liddle14
Prince Edward Island considers prior harm and likely risk of harm by requiring that because of the mental disorder, the person “has caused or is likely to cause harm to the person or others.”7 In Quebec, the civil code makes no mention of “likely” risk of harm, and it does not specify a restriction to recent harmful behaviour. Rather, the court assesses the person with input from two psychiatric examinations completed by physicians and it can order confinement if it “has serious reasons to believe that the person is dangerous and that the person’s confinement is necessary.”2 However, a decision from the Quebec court of appeal specified there must be a significant danger or a high potential for danger. It does not have to be imminent, but must be, if not probable, at least clearly possible in the present or relatively near future, which would justify immediate custody.15 In British Columbia, a person with a mental disorder can be involuntarily admitted when the person requires it for their or another person’s protection.3 Protection includes the “notion of harm.”16 The harm risk analysis can include the patient’s current presentation and prior harm due to mental illness.
Type of harm
Exclusive bodily harm criteria are not a Charter requirement, and the vast majority of Canadian jurisdictions recognize non-bodily harms as well as bodily harms as grounds for involuntary admission when other criteria are met. When legislation does not specify a required harm severity, the presumption is the harm must be serious enough to require involuntary admission.Reference Gray, Shone and Liddle14 Non-bodily harms have been interpreted to include vocational, financial, social, or family life serious harms.16 Recognizing non-bodily harms for involuntary admission allows individuals to access health care when they need it to prevent the serious social harms of no treatment.
Ontario and Yukon specify there must be a likely risk for serious bodily harm to self or others.1, 17 The Quebec courts interpret dangerous to mean physical danger.18, 19 Danger is defined in a specific (i.e. personalized) and precise manner by the Quebec Court of appeal, including the risk of its realization must be high, without its materialization necessarily being imminent.20
Bodily harm is not defined by Ontario and Yukon’s mental health legislation. In Canada’s Criminal Code, bodily harm means “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”21 Someone who behaves aggressively because of psychiatric symptoms may incur criminal charges without reaching the threshold of warranting involuntary psychiatric care.
Restricting involuntary admission to only bodily harm risks or physical danger excludes individuals who need involuntary admission to address the non-bodily harm and non-physical dangers of untreated serious mental illness such as scholastic attrition, unemployment, vocational loss, eviction, strained relationships, estrangement, marital separation, loss of child custody, homelessness, isolation, and/or incarceration. Such harms result in detrimental and pervasive consequences that are very difficult to recover from. Families can become burned out trying to compensate for the untreated illnesses’ dire effects while trying not to lose their family member to a marginalized life in the shelters or on the streets.Reference Ho, Petit, Pirzada and Shin22 Without access to involuntary admission, care is either never accessed or it is delayed until the person causes serious bodily harm or physical danger or becomes a likely risk for it.
The majority of Canadian jurisdictions allow for a more comprehensive understanding of harm that can be incurred against oneself or others and do not include the wording of “bodily harm.” In BC, the criterion of protection includes the social, family, work, or financial life of the patient.23 Alberta’s wording protects individuals from suffering negative effects due to their mental illness.12 These broader definitions in turn promote equitable care access and allow for involuntary admission to address non-bodily harms when other criteria are met (Table 2).
Type of Harm Required
Serious physical impairment or substantial mental or physical deterioration
Several jurisdictions allow for involuntary admission to address a likely risk of serious physical impairment, which has been interpreted as the unintentional and serious harm that will likely come to the person because of the risky activities they engage in due to the mental disorder.24 Examples can include disorganized behaviors due to psychosis that would likely cause a fight or cause a person to walk into traffic and result in serious physical impairment.
Most jurisdictions allow for involuntary admission to address a likely risk for substantial mental or physical deterioration when other criteria are met (Table 3).1, 4, 5, 7, 8, 9, 10, 11, 12 These deterioration clauses mean the mental or physical symptoms or illness will likely get worse unless the person is admitted and treated for the mental disorder. They allow involuntary admission to occur before serious harm.25
Deterioration and Impairment Clauses
a New Brunswick: The person’s recent behaviour must demonstrate that due to the serious mental illness, the person is likely to suffer substantial mental or physical deterioration.11
b Ontario: The patient must have a past response to treatment, be incapable regarding treatment in a psychiatric facility and substitute decision maker consent must be obtained.1
c British Columbia: “requires care, supervision and control in or through a designated facility to prevent the person’s or patient’s substantial mental or physical deterioration or for the protection of the person or patient or the protection of others.”3
d Nova Scotia: “will suffer serious physical impairment or serious mental deterioration, or both.”6
e Yukon: “the person’s impending serious mental or physical impairment.”17
In New Brunswick, the likely risk for substantial mental or physical deterioration must be in the context of recently demonstrated behaviour.11 In Nova Scotia, the deterioration or impairment must be expected with certainty. Its clause specifies the person “will suffer serious physical impairment or serious mental deterioration, or both.”6
A likely risk of substantial mental or physical deterioration may be defended when a person is re-presenting with early symptoms of a prior illness or based on the patient’s presentation and the physician’s knowledge of the illness’s course.25 Deterioration clauses have limitations as they may not apply if the course of illness is unclear or if the patient appears to be at the peak of the deterioration.
In Ontario, the likely risk of substantial mental or physical deterioration can only be relied on to support meeting criteria for an involuntary admission if the person is currently incapable with respect to psychiatric treatment, substitute decision maker consent for treatment has been obtained and the person has demonstrated clinical improvement with prior treatment for the same or similar mental disorder.1
Requiring a past response to treatment can place a person who is mentally or physically deteriorating due to mental illness and who lacks a past response to treatment into a “chicken and the egg” situation. They cannot be admitted involuntarily for treatment because they have no past response to treatment but they do not have a history of response to treatment because they cannot be admitted under involuntary admission criteria.Reference Ho, Petit, Pirzada and Shin22
Requiring a past response to treatment as part of meeting criteria for an involuntary admission due to a likely risk of substantial deterioration becomes discriminatory because such patients cannot access involuntary admission when needed to address substantial mental or physical deterioration.Reference Ho, Petit, Pirzada and Shin22 Even more confoundingly, patients who have made prior expressed capable wishes to receive treatment under these circumstances would not be able to access involuntary hospitalization and psychiatric care, unless there is a past response to treatment.
Incapacity
Some jurisdictions require the person to be incapable with respect to treatment or care and supervision for involuntary admission to occur (Table 4).
Jurisdictions that Require a Finding of Incapacity for Involuntary Admission
a Nova Scotia: Patients must be incapable of making admission and treatment decisions. Capacity may be with or without support.6
b Ontario requires the person be found incapable of consent to treatment in a psychiatric facility and a past response to treatment to allow involuntary admission for a likely risk of substantial mental or physical deterioration when other criteria are met.1
Saskatchewan and Newfoundland and Labrador require enhanced criteria for determining capacity such that people assessed as capable of making treatment decisions are fully aware of the consequences of their decisions.5, 8 For example, Newfoundland and Labrador’s legislation says that as a result of the mental disorder, the person “is unable to fully appreciate the nature and consequences of the mental disorder or to make an informed decision regarding his or her need for treatment or care and supervision.”8 Nova Scotia does not specify “fully” in its criteria. It elaborates in detail what one must be able to understand and appreciate with respect to treatment and specifies that capacity may be with or without support.6
In practice, the level of capacity required to consent to a treatment depends on the seriousness and complexity of the issue.Reference Gray, Shone and Liddle14 Minor interventions may require a casual understanding or appreciation to accept treatment. For example, taking a painkiller for a headache might not require detailed discussions about risks and benefits. However, when the consequences of refusing treatment are severe, such as with inpatient psychiatric treatment for serious mental illness to prevent serious harms, a high threshold for being capable of making a decision about treatment ensures informed decisions are made with full awareness of the risks and benefits of their decision. This means people with low or partial capacity may still access treatment for their illnesses when they do not fully appreciate the likely risks of serious harm, physical impairment or substantial mental or physical deterioration from no treatment.
In Ontario, an individual can be involuntarily admitted when, due to a mental disorder, they are at likely risk of serious bodily harm to self or others, or of serious physical impairment unless they remain in the custody of a psychiatric facility. Incapacity to consent to treatment in a psychiatric facility is required for involuntary admission when it is to address a likely risk of substantial mental or physical deterioration.1 In Ontario, a person is considered capable of consenting to a particular form of treatment if they “are able to understand the information that is relevant to making a decision about the treatment” and are “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”26
The Supreme Court of Canada held that in determining capacity to make decisions regarding treatment in Ontario, the patient does not need to agree with the diagnosis or view the condition in negative terms. The patient “must be able to recognize the possibility that he is affected by that condition” and that “if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.”27 A lower threshold for being deemed capable means a person may refuse treatment without fully understanding or fully appreciating the consequences of their decision. The Supreme Court also noted that capacity can fluctuate.27
Need for treatment
Most jurisdictions specify a treatment component in their involuntary admission requirements.
Some Canadian jurisdictions have a purpose written in their legislation and include the provision of treatment as a main objective.7, 8, 11 Specifying treatment as the purpose helps with Act interpretation. The purpose frames whether the intent of involuntary admission is to treat the mental disorder in order to improve the person’s condition and stop the harm caused by the serious mental illness, including if required, to provide the treatment involuntarily. Alternatively, the purpose of the involuntary admission is harm prevention through confinement, and treatment is only given if it is voluntarily accepted.Reference Gray, Shone and Liddle14
Including the need for treatment in involuntary admission requirements ensures that if the disorder does not need treatment, the person cannot be involuntarily admitted. When a mental disorder is defined as requiring treatment, a person who does not need treatment will not meet the mental disorder definition and will not be eligible for an involuntary admission.Reference Gray, Shone and Liddle14
Alberta departed from “dangerousness” criteria in 2010 and adopted “harm” based criteria but did not initially address the role of treatment in its involuntary admission criteria. In JH vs Alberta Health Services, Justice Eidsvik described Alberta’s involuntary admission criteria as overbroad because “it denies the rights of many individuals who are being detained under the auspices of the MHA when they cannot benefit from treatment.”28 In 2020, Alberta’s new MHA included the provision that individuals must have “the potential to benefit from treatment for the mental disorder” to meet involuntary admission criteria.12
Justice Eidsvik wrote “There are several decisions that looked at whether this move to ‘harm’ based criteria would render the criteria unconstitutional but, in my view, because of the combination of this part of the criteria with other parts, such as the need for treatment, the legislation in Manitoba, British Columbia and Ontario survived the Charter challenges….”28
In British Columbia’s Mental Health Act, the need for treatment is explicit within the definition of a person with a mental disorder, whereby the disorder must require treatment.3 In Prince Edward Island, the involuntary admission criteria state “the person requires care and treatment in a psychiatric facility.”7 Similarly, Manitoba and Nova Scotia have treatment requirements and Saskatchewan, Newfoundland, and Labrador include the person is “in need of treatment or care and supervision that can be provided only” in a mental health centre or psychiatric unit.5, 6, 8, 10 Ontario and New Brunswick’s legislation specify that the attending must release the patient if they are of the opinion that the patient does not need the “treatment provided in a psychiatric facility.”1, 11
Some jurisdictions do not specify a need for treatment as part of the involuntary admission criteria. Alberta requires that the person has “the potential to benefit from treatment for the mental disorder.”12 Nunavut’s criteria does not include treatment requirements, but their mental disorder definition states it must be “amenable to treatment.”9 Legislation in a number of jurisdictions requires that a treatment plan be prepared for the patient.6, 12, 17
Pairing the need for treatment with other involuntary admission criteria helps keep legislation from being overbroad, narrows involuntary admissions to being available for those individuals with treatable conditions, focuses the purpose of the admission on treatment, and prevents detaining people with conditions that are not susceptible to psychiatric treatment. It focuses the admission purpose on treatment and improvement rather than a possibly indefinite detention used to prevent community physical danger, which does not make sense for hospital functioning and may be contrary to the Charter.Reference Gray, Shone and Liddle14
Treatment during an involuntary admission: when incapable of consenting to treatment
A person may appeal a psychiatrist’s finding of incapacity of consent to treatment. In some jurisdictions, treatment cannot begin until the appeal is decided by a panel or, when appealed further, by the courts. Delays incurred by a court review can be months or years, resulting in prolonged detainment without treatment.
First line treatment decision-making in the context of a finding of incapacity for treatment depends on the jurisdiction. Some jurisdictions require the decision-maker to follow prior expressed capable directives, instructions, or wishes of an incapable individual for whom the treatment is proposed.9, 10, 26, 29, 30
When applying prior capable directives, instructions, or wishes, some jurisdictions specify these must apply to the current circumstances and must not be impossible. Such safeguards are helpful but have limitations. They require extrapolation of prior wishes as they apply to the current circumstances, which may be difficult to determine. Prior expressed capable wishes may not have been properly informed. Determining capacity retrospectively may be inaccurate, especially so if the determination of prior capable wishes was done by a substitute decision maker who does not have capacity assessment training.Reference Gray, Shone and Liddle14
Adverse outcomes have occurred. This can occur when an incapable person’s prior expressed capable wish was for no treatment regardless of the negative consequences.
Solomon et al.Reference Solomon, O’Reilly, Gray and Nikolic31 describe an example of this with the case of Edwin Sevels. Mr Sevels was diagnosed with schizophrenia or schizoaffective disorder and had a history of repeated confinement in a high secure psychiatric facility. He was subsequently detained on a warrant of remand and, after his criminal charges were dropped, was held involuntarily under Ontario’s MHA due to his symptoms and associated violent behavior.Reference Solomon, O’Reilly, Gray and Nikolic31
He was incapable with respect to treatment, but because he had previously rejected it when apparently capable, his relative refused to consent on his behalf. The Court believed medications would significantly improve his condition and aggression, and that it would stop further mental deterioration. It believed that detaining a person suffering from mental illness for an extended period without the treatment needed for release could not have been the Charter’s intent. However, it voiced it had to adhere to the Fleming vs Reid decision which indicated it was against the Canadian Charter to medicate a patient without consideration for their prior capable wish for no treatment.Reference Solomon, O’Reilly, Gray and Nikolic31
Mr Sevels remained detained and untreated. He deteriorated, assaulted, and seriously harmed another person. The official guardian changed their decision and provided consent for treatment. After 65 months of involuntary detainment, he was treated. He improved quickly, was removed from involuntary seclusion, continued to make gains, was eventually transferred to rehabilitation and was subsequently discharged on a community treatment order, which required on-going antipsychotic treatment.Reference Solomon, O’Reilly, Gray and Nikolic31
When first line decision making is prior expressed capable directives, instructions, or wishes, some jurisdictions have safeguards that prevent indefinite involuntary admissions without treatment. In Prince Edward Island, a panel can order treatment without consent according to the patient’s best interests.7 While wording differs amongst jurisdictions, some include a clause that prior expressed wishes not be followed if they would endanger the physical or mental health or safety of the patient or another person.4, 6, 10 Without safeguards regarding prior expressed capable directives, instructions or wishes, indefinite involuntary admission without treatment can occur.
The remaining jurisdictions follow other first line approaches in the setting of incapacity for treatment. In Alberta, decision making is in accordance with best interests.12 In Newfoundland and Labrador, the attending may, “taking into account the best interests of the involuntary patient, perform or prescribe diagnostic procedures that he or she considers necessary to determine the existence or nature of a mental disorder, and administer or prescribe medication or other treatment relating to the mental disorder without the consent of the involuntary patient during the period of detention.”8 In doing so, the attending will consult with the patient and their representative and consider their views.8
In New Brunswick, decision-making is in accordance with the best interests and additional criteria.11 In Saskatchewan, the attending physician may “administer or prescribe any medication or other treatment that is consistent with good medical practice and that he or she considers necessary to treat the mental disorder to a patient who is detained pursuant to section 24 or 24.1 without that patient’s consent.”5 The attending must also, “to the extent that it is feasible given the patient’s medical condition,” consult with the patient and consider the patient’s views.5 In Quebec, decision making follows “the sole interest of that person, complying, as far as possible, with any wishes the latter may have expressed” and the decision maker “shall ensure that the care is beneficial notwithstanding the gravity and permanence of certain of its effects, that it is advisable in the circumstances and that the risks incurred are not disproportionate to the anticipated benefit.”2 However, if the patient categorically refuses to receive care and if the situation is not an emergency or a hygienic care issue, treatment must not be given until the courts authorize it.2 In British Columbia, the facility director authorizes safe and effective psychiatric treatment that is appropriate to the patient’s mental condition.3
Treatment during an involuntary admission: when capacity is present
Prolonged involuntary admission can also occur when a detained individual who is capable of making their own decisions about treatment refuses the treatment that is needed to improve the person’s condition for a safe discharge.
Solomon et al.Reference Solomon, O’Reilly, Gray and Nikolic31 describe this outcome in Scott Starson’s case. Mr Starson had bipolar affective disorder and psychosis. He was initially deemed unfit to stand trial for uttering death threats, and the Court ordered detainment and treatment under the Criminal Code’s fitness provisions. He subsequently improved, was fit to stand trial and was found not criminally responsible for the charges. The Criminal Review Board determined the detention’s duration and conditions. As with involuntary admissions under Ontario’s Mental Health Act, treatment decisions were determined by Ontario’s Health Care Consent Act. He was detained, refused medications and was found to be incapable of consent to treatment. He contested the psychiatrist’s incapacity finding, and eventually the issue went to the Supreme Court of Canada. Most of the justices determined he was capable using Ontario’s Health Care Consent Acts’ incapacity definition. The minority of the justices viewed that he was incapable, that his ability to understand and appreciate was impaired and that he neared full denial of the mental disorder. He had ongoing delusions such as that he communicated with aliens and that he was at the forefront of building a starship.Reference Solomon, O’Reilly, Gray and Nikolic31
Mr Starson was found capable by the Supreme Court, but the Criminal Review Board declined his release because they determined he was too much of a public threat. He refused treatment and remained detained and untreated. Over the next ~20 months, he mentally and physically deteriorated to the point where he was in danger of impending renal failure and of possibly dying. His psychiatrist deemed him incapable with respect to treatment again. The finding was upheld by the Consent and Capacity Board, who acknowledged capacity can change with time. His substitute decision maker consented to treatment based on best interests, presumably because she believed his prior wishes did not apply to the current circumstances. He significantly improved with antipsychotic treatment, to the point where, over the next couple of years, the Criminal Review Board approved short passes outside of the hospital and eventually allowed him to live in an approved setting contingent on a minimum of monthly follow-up by his treatment team.Reference Solomon, O’Reilly, Gray and Nikolic31
Of the jurisdictions that allow capable people to be involuntarily admitted, some have provisions to avoid the indefinite detainment of a capable person refusing the treatment required for a safe discharge. Some allow a panel to order treatment without consent if the treatment is in accordance with the person’s best interests and depending on the jurisdiction, additional criteria.4, 7, 11, 12
In British Columbia, the definition of a person with a mental disorder includes that it is a disorder of the mind that requires treatment. “Treatment is defined as “safe and effective psychiatric treatment and includes any procedure necessarily related to the provision of psychiatric treatment.”3 If a person does not meet the mental disorder definition or the involuntary admission’s need for protection or deterioration clauses, they cannot be involuntarily admitted. They can be voluntarily discharged. Accordingly, if they do meet the mental disorder definition and the involuntary admission criteria, and they refuse the safe and effective treatment required for the mental disorder, they are determined to be incapable regarding treatment, and the hospital director authorizes treatment according to what is safe, effective, and what is appropriate to the person’s medical condition.3, 23
Best interests
Controversy exists on whether best interests should be applied in treatment decision making and whether following best interests is contrary to the Canadian Charter because of the Reid vs Fleming decision that prior capable wishes had to be respected before applying best interests. However, during a charter challenge in 1999, the Ontario Court of Appeal asserted they did not find the best interest standard to be unconstitutional and noted it was a broadly accepted standard for decision making.Reference Gray, Shone and Liddle14 Alberta requires the substitute decision maker to decide according to the best interests, and a review board can overrule a treatment refusal if it determines that the treatment is in the person’s best interests.12
Although some differences exist across Canada, best interests as they are described by jurisdictional legislation generally includes regard for whether the condition will likely be improved by the treatment, what will likely happen to the condition if treatment is not provided (i.e. whether the condition will likely deteriorate or likely improve without treatment), whether the anticipated benefits from treatment outweigh the risks of harm, and whether the treatment meeting those requirements also constitutes the least restrictive and least intrusive treatment option.
Best Interests may explicitly consider current wishes and/or prior capable wishes, as well as prior capable values and beliefs.4, 8, 9, 26, 29, 30 If not explicitly stated in legislation, it can be argued that considering patient wishes is an implicit requirement.Reference Gray, Shone and Liddle14 Treatment decisions according to best interests helps prevent indefinite detention because the treatment must be the least restrictive and least intrusive applicable treatment. It automatically applies to the current circumstances. It weighs the anticipated benefits and harms, and this would consider any potential harms linked to the administration of involuntary treatment such as any possible harms linked to the involuntary admission itself. The benefit of the involuntary admission and treatment must outweigh the anticipated harms.
Appealing incapacity for treatment in Canada and treatment pending appeal
In British Columbia, Newfoundland and Labrador, Nova Scotia, and Saskatchewan meeting involuntary admission criteria will result in an individual being eligible for treatment.
In Newfoundland and Labrador, Nova Scotia, and Saskatchewan, involuntary admission requires a finding of incapacity to treatment.5, 6, 8 If a person disagrees with the involuntary admission, they may seek review of the involuntary admission to a tribunal authorized to review the decision. The panel may uphold the involuntary admission, which would include the incapacity status and allow for involuntary admission and treatment or rescind the involuntary status, and the person can be voluntarily discharged without treatment.
In British Columbia, before an involuntary patient is treated, they are all assessed for capacity by the treating physician. If found to understand the treatment and its consequences ( i.e. capable), the patient can consent to their own treatment if they agree with it. If found incapable because they do not appreciate the treatment including their need for treatment they are found to be incapable. Then, the director of the psychiatric unit on the advice of the treating physician consents or can refuse. There is no appeal to the review board on a finding of incapacity as such; but a patient could argue that treatment is not required or that they are competent and therefore suitable as a voluntary patient. Treatment continues during the review panel process.3, 23
In the remaining jurisdictions, except for Quebec, people who are involuntarily admitted may seek a legal review of the involuntary admission status and/or the incapacity finding to an administrative tribunal or reviewing body. In Quebec, involuntary hospitalization and an incapacity finding would need to be reviewed by the courts.2
If a party is dissatisfied with a review board’s or court’s decision, they may seek an appeal to a reviewing court and even up to the Supreme Court of Canada. Appeals addressed through the courts can take months or years to be resolved as a result of various factors. However, when a review board confirms an incapacity finding regarding a proposed treatment, most jurisdictions allow for treatment to commence during the appeal process. A minority of jurisdictions do not allow treatment to start or to be significantly modified until the court makes a decision on the appeal, which can unfortunately result in prolonged involuntary admissions without treatment. Because of the severity of symptoms for patients requiring involuntary admission, which can center around risks of bodily harm or dangerousness, sometimes physical restraints or seclusion are unfortunately required due to violent untreated illness.
Many Canadian jurisdictions—Alberta, New Brunswick, Nova Scotia, Northwest Territories and Prince Edward Island—permit treatment pending appeal, meaning the involuntarily hospitalized person can be compelled to receive treatment for the mental disorder while they appeal the incapacity determination to the court system.4, 6, 7, 11, 12 Jurisdictions that do not allow treatment to start until the issue is resolved in court include Ontario, Manitoba, Nunavut, and the Yukon.9, 10, 17, 26 There is no mandated time frame for an appeal to be heard by the courts. Typically, the waiting period is several months but can take up to a year. A study in Ontario showed an average initial treatment delay of 253 days for patients who appealed a panel’s decision.Reference Kelly, Dunbar, Gray and O’Reilly32 In Quebec, when there is a request to review a finding of incapacity in the courts, an application for treatment pending a potential appeal can be made concurrently, so even if there is a subsequent appeal, treatment can commence in the interim.2, 33, 34, 35
Most appeals delay treatment and do not reach the courts. For example, in Ontario, the most populous jurisdiction in Canada, its Consent and Capacity Board’s (CCB) 2022–2023 Annual Report reveals that since recorded data in 2012, the majority of appeal outcomes were identified as withdrawn, abandoned, or unknown.36 The minority of appeals actually reach the courts, and when they do, the courts overturn only a small minority of the review board’s original decisions. Appeals can rely on arguing the board made errors in facts, law or both37 but the majority of appeals are dismissed after careful court review. In communication with Ontario’s CCB, from 2018 to 2023, there were 346 appeals regarding treatment incapacity. Over this period, only four appeals were allowed by the courts and overturned the review board’s decision; there were two additional cases remitted back to the CCB for new hearings (CCB, email communication, June 12, 2023). While it is impossible to track the whereabouts for all patients and the trail of all appeals, these are the best data available and collected by the CCB. When considering the small number of successful appeals, there are enormous harms caused by delays in treatment, or potentially no treatment, if patients are discharged from hospital prior to the appeal reaching the court.
Delaying treatment until a court decision considers individual rights for autonomy, self-determination and bodily integrity. However, in clinical practice, delayed treatment in this manner is at the expense of rights to liberty, freedom, and the best interests of vulnerable populations. It denies the provision of wellness and health, and protection from harm. The finding of incapacity is generally upheld by the courts, and so it can also be argued that disallowing treatment pending appeal systematically delays treatment to the personal detriment of the patient through prolonged hospital detention and the risk of worsening illness prognosis. One can contend that delaying treatment while awaiting an appeal infringes on a person’s right to autonomy and self-determination should the person’s prior capable expressed wish or values for treatment be prevented because the person makes impaired decision-making and directions while they are unwell. Bodily integrity is also at risk given any potential self-inflicted bodily harm or agitation driven by untreated illness.
For patients, hospital treatment delays contribute to prolonged suffering, loss of liberty and poorer prognosis when involuntary admission remains necessary. Patients and their families may endure extended disruption of family life. Delays in discharge can increase socioeconomic disruption for patients, not to mention the risk of worsening illness and poorer prognosis.Reference Marshall, Lewis, Lockwood, Drake, Jones and Croudace38, Reference Penttilä, Jääskeläinen, Hirvonen, Isohanni and Miettunen39 A higher level of psychosis can be a predictor of violence in an inpatient setting,Reference Radisic and Kolla40, Reference Steinert41 increasing the risk of restraint use and seclusion, which can place patients at greater risk of physical injury.
The risk of patient violence also poses a threat to hospital staff and copatients. Antipsychotic medication can lower patient hostility, potentially mediating aggressive behaviourReference Volavka42; thus, treatment delays create a barrier to increasing the safety of the hospital setting. Jurisdictions that permit treatment pending appeal address these adverse outcomes, striking a balance that allows individuals to receive treatment while they appeal a panel’s decision about an incapacity finding to the court.
Canadian mental health legislation, the Canadian Charter of Human Rights and Freedoms, and the Canada Health Act
Canadian mental health legislation must consider both the interests of society and individuals with mental illness and consider a person’s right to liberty, autonomy, protection from harm, procedural fairness, and equality.Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43 It must consider one’s right to wellness. It must adhere to the Canadian Charter of Human Rights and Freedoms and the Canada Health Act.
During an involuntary admission, a person loses their liberty, and potentially their autonomy to decide their treatment.Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43
Liberty, autonomy and procedural fairness
When a person’s liberty is restricted, section 7 of the Canadian Charter states it must occur in “accordance with the principles of fundamental justice”,44 meaning the law must follow fair legal principles that are generally agreed upon by society and must consider a balance of individual and society interests.Reference Gray, Shone and Liddle14
In alignment with the principles of fundamental justice, Canadian MHAs have procedural safeguards for involuntary admission and treatment. The Canadian Psychiatric Association’s (CPA) position paper on “Principles Underlying Mental Health Legislation” describes that “Procedural safeguards should generally include, but not be limited to, provision of rights information, the right to retain counsel, the right to an independent review of committal, or a finding of incapacity, and appropriate review by the courts. Safeguards might also include such things as a requirement to provide a second opinion on a plan of treatment, if requested.”Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43 Following the principles of fundamental justice has kept the liberty loss from involuntary admissions adherent to section 7 of the Charter.Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43
With respect to the individual’s interests, the CPA describes the loss of liberty from an involuntary admission should benefit the person and the associated treatment should be financed by the government, follow best medical practices, and be the least intrusive and the “least restrictive alternative treatment that is appropriate.”Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43
Liberty loss must not be arbitrary. In alignment with Section 9 of the charter,44 involuntary admissions must comply with specific criteria that ensure the law is not overbroad and that the detainment is not arbitrary.Reference Gray, Shone and Liddle14
Legislation has similar considerations for the loss of autonomy that occurs when a person loses the capacity to consent to treatment. The CPA’s position includes that treatment should be the least restrictive alternative that is appropriate, that it should have procedural safeguards, that patients should have an active role in the formulation and integration of their treatment and when appropriate, that close support(s) be involved.Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43
It can be argued that involuntary admission and treatment can restore a person’s right to freedom of thought, unplagued by the irrationality of psychosis, restore a person’s freedom when they have required involuntary admission to address serious harmsReference Gray, Shone and Liddle14 and restore their autonomy to make treatment decisions regarding mental and medical illness.
Equality and health care accessibility
Health care should be accessible to all residents. The Canada Health Act identifies the primary objective of Canadian health care policy is “to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.”45 Section 12(1) of the act asserts a province’s health care insurance plan “(a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons”.45
People with severe mental illness who refuse treatment because they do not realize they are ill and because they are incapable with respect to treatment, do not have reasonable access to health care when they need it and are discriminated against for their health status. The CPA asserts that “all citizens have the right to access publicly funded treatment,” and that “access to psychiatric treatment should not be denied to a person simply because that person does not have the capacity to recognize his or her illness.”.Reference O’Reilly, Chaimowitz, Brunet, Looper and Beck43
Section 12 of the Charter says “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”44 It can be argued that detaining people with schizophrenia for long periods without the treatment they need to be safely released violates section 12.Reference Gray, Shone and Liddle14 When a person is involuntarily admitted because of the serious harm from the mental disorder, treatment can restore their liberty.
Access to health care should be consistent across Canada and respect section 15 of the Charter which ensures equality rights.44 Critics have argued it is violated by involuntary admission, because they frame involuntary patients as the same as voluntary medical patients but not treated the same. They are involuntarily admitted and treated and therefore discriminated against because they do not consent, violating section 15. The opposing argument is that they are not the same. Medical patients must consent to admission or the substitute decision maker must consent on their behalf. Involuntary psychiatric patients are not asked to consent to admission indeed, they by definition refuse admission. When a medical patient refuses treatment, they can walk out of the hospital at any time. In contrast, the untreated involuntary patient is detained until they meet the discharge criteria without treatment, which may result in an indefinite detainment when the serious mental illness requires treatment for the person to be safe for discharge. Should the untreated mental illness cause violent behaviours during the detainment, the person can end up physically and chemically constrained to ensure their and other co-patients’ safety.
Section 15 also says it “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”44 This means that programs aimed at reducing apparent discrimination are not contrary to section 15. Involuntary treatment is what restores a person to have the same privileges and rights as a voluntary patient.
Individuals have the right to equal protection and equal benefit of the law without discrimination based on mental disability. It is arguable that the jurisdictions that restrict involuntary admission to bodily harm or physical danger criteria breach section 15.Reference Gray, Shone and Liddle14 Such jurisdictions deny individuals with mental illness causing serious non-bodily harms or mental or physical deterioration, the protections and health rights they would obtain in most other Canadian jurisdictions.
Conclusion
Mental health legislation across Canadian jurisdictions has overlapping principles with respect to involuntary admission and access to treatment. Legislation must consider the individual’s interests, the interests of society as well as a person’s right to liberty, autonomy, procedural fairness, wellness, protection from harm, and equality.
Most jurisdictions allow for involuntary admission to address non-bodily harms or mental or physical deterioration due to a mental disorder when other criteria are met. Legislation that limits involuntary admission to when there is concern for physical danger or bodily harm, forces people to suffer the serious non-bodily harms and mental or physical deterioration of untreated mental illness. Individuals with serious mental illness who refuse involuntary admission and treatment because of anosognosia—a common symptom of psychosis that impairs awareness of one’s own mental condition—are discriminated against in those jurisdictions. Access to involuntary admission and treatment when it is needed should not be restricted to bodily harm or physical danger. Individuals with mental illness should have equal access to care and treatment. Safeguards should be in place to ensure involuntary admission is accompanied by appropriate treatment and that prolonged detention without treatment does not become a common deleterious outcome for people with severe, but treatable, conditions.
When the purpose of involuntary admission is to provide needed treatment that cannot be provided voluntarily, the concept of stopping treatment, which leads to increased detention and suffering, might be questioned. As Solomon et al.Reference Solomon, O’Reilly, Gray and Nikolic31 described regarding Ontario’s MHA, “In attempting to protect autonomy, the Ontario law has imperilled the physical and mental health of involuntary psychiatric patients and exposed them to indeterminate detention. In our view, a better balance needs to be struck among the competing interests of these patients. In striking this balance, consideration must be given to the impact that the law has on the lives of those it seeks to protect. As our study indicates, treatment delayed results in liberty denied.”
A review of the mental health legislation across Canada’s provinces and territories demonstrates how various jurisdictions have grappled with the complex balance between competing rights, principles, and ethical considerations when it comes to involuntary hospitalization, capacity, and treatment decision-making. The nuanced and different approaches played out across the country allow for comparisons and the potential for each jurisdiction to review their system for improvements. There are opportunities to fine-tune laws to eliminate unintended and significantly harmful consequences, and to incorporate new knowledge and societal expectations for timely care. Mental health legislation must be living documents, and align with best practices and recognized guidelines related to pharmacotherapy, psychosocial treatments, and comprehensive community treatment.
Author contribution
Conceptualization: L.C.P., K.S., J.G.; Writing original draft - L.C.P., K.S.; Visualization: L.C.P.; Writing - review & editing: L.C.P., K.S., N.F., M.D., J.G.
Financial support
This research received no specific grant from any funding agency, commercial, or not-for-profit sectors.
Disclosures
Dr Lyndal Petit: Dr Petit is a Board Director for the Ontario Psychiatric Association and Co-Lead for the Ontario Psychiatric Association Mental Health Law Reform Task Force.
Dr Karen Shin: Dr Shin is Chair of the Ontario Psychiatric Association and Co-Lead for the Ontario Psychiatric Association Mental Health Law Reform Task Force; Co-Chair for the Coalition of Ontario Psychiatrists; and sits on the Ontario Health, Mental Health and Addictions Centre of Excellence, Schizophrenia and Psychosis Advisory Table.
Ms Nicole Fielding: Ms Fielding is an Ontario Psychiatric Association Mental Health Law Reform Task Force member.
Dr Mathieu Dufour: Dr Mathieu Dufour is the President of the Canadian Academy of Psychiatry and the Law (CAPL).
Dr John Gray: Dr Gray is a Board member of the Family Alliance for Severe Mental Illness and an Ontario Psychiatric Association Mental Health Law Reform Task Force member.
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