A JOURNALIST WAS SHOT: HOW MENTAL HEALTH LAW CHANGED

Vol 9 #6

Alan Eppel

It was August 1, 1995. Brian Smith had just finished his work for the evening and was walking out of the main exit from the CJOH television station when he was shot.

Newspaper reports described later that “the gunman parked his car some 60 metres from the front entrance of the CJOH studios, pulled a long-barreled .22-callibre rifle from his trunk and fired two shots, one hitting the sportscaster and former NHL player (Brian Smith)………..”

It soon emerged that the shooter was suffering from  a severe psychiatric illness.

This event and the subsequent inquest was part of a groundswell from a variety of stakeholders to have The Mental Health Act of Ontario changed. The inquest recommended a review of the Mental Health Act in order “to balance the rights of individuals with the rights of the community when it comes to the mentally ill”

Another tragic event  was the death of a two-year-old boy Zachary Antidormi. He had been murdered by a neighbour. The neighbour had a delusion that this child contained the soul of her deceased son. An inquest had been held in 1999. Among other recommendations the inquest jury called for the deletion of the requirement from one section of the involuntary admission criteria that stipulated that ” the person is suffering from a mental disorder that likely will result in imminent and serious physical impairment of the person“.

MOMENTUM FOR CHANGE

In 1995 Mike Harris became Premier of Ontario after defeating the New Democratic Party government of Bob Rae in the general election. Mike Harris served as Premier from 1995 until 1999 and then for a second term between 1999 and 2002. He was a hard-nosed cost-cutting conservative but ironically there was a convergence of views regarding reform of the Mental Health Act. However for the conservatives this was a law and order issue rather than being about health and social justice.

A COALITION IS FORMED 

The formation of the Coalition of Ontario Psychiatrists was an important step in mobilizing psychiatric support for Mental Health Reform and changes to the Mental Health Act.

The coalition was a joint agreement between the Ontario Medical Association Section on Psychiatry and the Ontario Psychiatric Association. While it may seem that both of these organizations would make natural allies in fact the goals and interests of both groups were quite different. The Ontario medical Association’s principal focus is on advocating for its members. This mostly means negotiating with the Ontario government about fees and payments to physicians.

The  mandate of the Ontario Psychiatric Association is to provide educational events for its members as well as to comment on social and political issues affecting psychiatric patients and psychiatric care by psychiatrists.

Among those who negotiated the coalition included Stephen Connell perhaps one of the most energetic and effective negotiators who at the time was vice-chair of the OMA Section on Psychiatry. Judy Hamilton was Chair of the section. Barry Gilbert was also part of the OMA team. All three were psychiatrists and psychoanalysts.

Initially for the OPA the 1996 president  Lou Faucher a psychiatrist practicing in the Montfort Hospital in Ottawa,  Paul Links Deputy Chief at St. Michael’s Hospital in Toronto, and Lois Hutchinson Chief of Psychiatry  in Thunder Bay took part in the early negotiations. A planning meeting was held on December 1, 1996. The Coalition had other concerns related to funding for psychiatric services and hospital restructuring. Now Mental Health Law Reform took central stage.

The Coalition consulted with two important legal experts. The first was John Gray who at the time was manager, Policy and Systems Development, Clinical Services, Adult Mental Health Division for the BC Ministry of Health. He had been a policy advisor on mental health legislation for over 20 years and previously was the Executive Director of a psychiatric facility in Saskatchewan. The second was Arthur Fish a distinguished lawyer and a strong advocate for changes to The Mental Health Act.

Gray had adopted a human needs perspective which emphasizes a humanistic approach in which mental health law should be seen as facilitating care and treatment of those with serious mental illness.

  CTOs AND THE WORD “IMMINENT”

There were three  critical areas in the existing Mental Health Act that were seen to be most problematic.

• The emphasis on dangerousness to self or others. This applied when an individual was expressing or intending to attempt suicide or were they intended to cause bodily harm or death to another person. This was felt to be too restrictive and excluded many patients who were gravely ill but not dangerous.
• While the term serious physical impairment was in the current act there was a lack of recognition that mental deterioration could have profound and prolonged effects on the life of patients with serious mental illness.
• Thirdly the question of community treatment orders which could enhance the need for hospital admission and allow patients to remain in the community but subject to requirements to engage in treatment and follow-up.

I believed that the he word “imminent” had led to many patients being released from hospital or not admitted, ultimately leading to many deaths. There was no clear understanding of the time frame that the word signified. Did imminent mean that the patient had to be a danger within a few hours, a few days, a few weeks or even longer? Those physicians or justices of the peace who interpreted the shorter time frames meant that that many patients were not admitted with resulting tragic outcomes.

THOSE IN FAVOUR

The Schizophrenia Society of Ontario

under the leadership of Selina Volpatti were extremely strong in their campaign for change.  Many members of the Schizophrenia Society were parents of young adults who were severely ill and often totally withdrawn from society. The members were extremely distressed as very often their children could not access psychiatric services and did not meet the stringent involuntary admission criteria of the existing Mental Health Act.

In February 1998 the Schizophrenia Society of Ontario and Canadians Against Violence Everywhere Advocating its Termination (CAVEAT ) held  a roundtable discussion in Toronto. This was this was chaired by Selina Volpatti an and Priscilla de Villiers President of CAVEAT.  Priscilla’s daughter a McMaster biology student had been murdered in 1991 at the age of 19. Range of stakeholders was invited to the roundtable including family members, healthcare providers, representatives of the Toronto police services in the Executive Director of the Ontario division of the Canadian Mental Health Association. Psychiatrists, family members, representatives from the nursing profession, the Toronto Police Services and Glenn Thompson the Executive Director of Ontario Division of the Canadian Mental Health Association.. Michael Bay, Chair of the Consent and Capacity Review Board attended as an observer.

Stephen Connell represented the Ontario Medical Association Section on Psychiatry, I represented the Ontario Psychiatric Association. A number of other psychiatrists were also present including Richard O’Reilly from the University of Western Ontario.

The subsequent report “Meeting Obligations To The Seriously Mentally Ill” was released in August 1998. Its recommendations remain relevant today as unfortunately many of them were only partially implemented or not at all:

• The new Act should contain a preamble stating that its purpose is to balance the legal rights of those suffering from serious mental illness with their right to medical treatment, care and protection when their judgement is impaired.
• Creation of a framework for a comprehensive, effective and adequately resourced delivery system to provides for the treatment and care of the Province’s seriously mentally ill.
• The removal of the word “imminent” from the act wherever it appears.
• The introduction of community-based treatment orders.
• Stop closure of psychiatric hospital beds until the requisite treatment and community support services are in place.
• Provide adequate resources for an integrated a continuum of care.
• Address social issues such as affordable housing, income support, nutrition and transportation.
• Establish an adequate number of assertive community treatment teams across the province by 2003.
• Crisis intervention services should include 24-hour availability of mobile response teams.

The recommendations of the Roundtable received coverage in several newspapers and television news.

Richard Patten MPP for Ottawa Centre

Richard Patten a member of the Liberal opposition party in the Ontario legislature, had introduced private members bill: an Act to amend the Mental Health Act, Bill111, which passed second reading on February 13, 1997. That session of Parliament ended on December 18, 1997 and the bill was not carried over to the next session. He made further attempts to reintroduce reintroduced this bill on November 4, 1998 and in May 1999 which did not succeed.

James Young  Chief Coroner of Ontario

James Young was a vocal supporter of the need to amend the mental health laws in Ontario. As a public panel discussion he noted that “dangerousness” is not a measure of illness it is a measure of criminal behaviour. Those who do not meet dangerousness criteria may be abandoned by the healthcare system.

He identified several themes that emerged from numerous inquests:

• The law had gone too far in balancing rights versus care. Coroner’s juries were sympathetic to the needs for psychiatric care.
• Inconsistencies in the interpretation and application of the mental health act.
• Problems with information exchange. There is a need for exchange of information between the mental health system and the criminal justice system
• Downsizing of psychiatric hospitals had led to increase in the number of homeless people and greater pressure on the justice system

David Frum

During this time the wife of David Frum was pushed while standing on a subway platform. There had been other incidences of people had been pushed onto the tracks by individuals with mental illness. David Frum was a prominent conservative political commentator( later to become a speech writer for President George W. Bush).  He wrote in the Toronto Sun and  Financial Post calling for change.

Richard O’Reilly had made a careful study of the use of community treatment orders and was a strong advocate for them. They had been used in other jurisdictions including Saskatchewan, a number of US states and New Zealand.

In a letter to the Globe and Mail on August 26, 1998, O’Reilly wrote that the Ontario government had closed 68% of all psychiatric beds  between 1960 and 1996. The promise of comprehensive community services have not materialized. Community Treatment Orders would permit some of the most seriously mentally ill patients to receive treatment while allowing them to live in the community.

The position put forth by civil libertarians stressing rights and not care had resulted in many human tragedies. Advocates for change drew a sharp distinction between the “freedom” to remain ill and the true autonomy gained by the restoration of health through medical care and treatment.

THOSE OPPOSED

On the other side there was opposition to making this change.

Michael Bay

Michael Bay was a staff lawyer in the Ministry of Health and Chair of the Consent and Capacity Review Board. He felt that the problems with the Mental Health Act could be resolved by the education of physicians, psychiatrists, justices of the peace and police to clarify their powers under the act. He did not feel that the word “imminent” needed to be removed. Also, psycho up men

The Ontario Division of the Canadian Mental Health Association

CMHA were opposed to these changes. In particular the proposal to introduce community treatment orders. They felt that this was too much of an infringement on individual rights.

The Psychiatric Patient Advocate Office

 The Provincial Advisory Committee  on Mental Health

The Mental Health Legal Committee

The latter was headed by Anita Szigeti a passionate and outspoken advocate for the rights of the mentally ill.

Those opposed alleged that “people will be swept off the streets”, that patients’ legal rights would be infringed and that there would be increased psychiatric admissions if the law was changed.

Bill 68 an Act, in Memory of Brian Smith

The bill was introduced by the honourable Elizabeth Witmer, Minister of Health in the first session of the 37^th legislature of Ontario.

The first reading was completed on April 25, 2000.

The race was now on to the finish line. Those lobbying for either side of the case now had to make their final arguments to the to the minister and senior bureaucrats in the Ministry of Health and Long-Term Care.

Around this time I remember a meeting with Gilbert Sharpe the senior lawyer within the Ministry of Health who was overseeing the drafting of the new legislation. One of the issues discussed was the infamous word “imminent” and I believe we may have had some success in our arguments.

PRESENTATION TO PARLIAMENTARY COMMITTEE

This was one of the last public opportunities to make the case for the amendments. On May 12, 2000 on behalf of the Ontario Psychiatric Association I made a presentation to the Standing Committee on General Government on Brian’s Law. I invited Lawrence Martin psychiatrist in the Mood Disorders Program at the Hamilton Psychiatric Hospital to talk about his experience with community treatment orders in New Zealand.

The following are extracts from the official Hansard transcripts:

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“Dr Alan Eppel: My name is Alan Eppel. I’m the immediate past president of the Ontario Psychiatric Association. With me is Dr Lawrence Martin, who is on the faculty at McMaster University. Both of us work at St Joseph’s Hospital in the department of psychiatry here in Hamilton…

The Ontario Psychiatric Association supports the proposed amendments in Brian’s Law because they will: reduce suffering of patients and families; reduce hospitalization; reduce the imprisonment and criminalization of many of those with mental illness; respond to recommendations of numerous coroners’ juries over the past decade; maintain the human rights and legal protection of patients in accordance with the Canadian Charter of Rights and Freedoms; and finally, will allow the restoration for many patients of real freedom, autonomy and dignity………….

I will say something, though, on the issue of human rights, because that is central to any issues concerning mental health legislation. We believe that our Constitution offers as a right, life, liberty and security of the person. Under the current act, many people who are so seriously ill that they do not realize they are ill are deprived of that right and don’t have the opportunity for health, recovery and the ability to work, make relationships and have some quality of life. So we see no contradiction in the present amendments and the guarantees of the Canadian charter, and the present Ontario laws provide for very extensive and rigorous rights protection.

I will conclude by calling upon all you who have the true interests of patients with severe and incapacitating mental, psychiatric illness at heart to support Brian’s Law and our proposed modifications. Thank you very much and I’m open for questions.

Dr Eppel: The Ontario Psychiatric Association does support the idea of a preamble to generally explain the purpose of the act. The present act is more of a police act. It is really characterized by a focus on dangerousness rather than care and treatment for people who are very ill. So we certainly would like to see a preamble, if that were possible, explaining that the purpose of the act primarily is to provide the care and treatment to individuals who are very severely ill, particularly those who may not realize that they’re ill and may not be able to consent to or refuse treatment.

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Ms. Lankin: I thank both of you so much. This is really invaluable information and direct experience that you’re providing to the committee.

I’m very interested in your comments, and the last comments you just made about the majority being patients with a psychotic disorder. It speaks, Dr Eppel, to your comments around perhaps the use of a preamble. We’ve asked for a number of studies to be provided already. One of them is the Swartz study from the States, which shows that the success of CTOs in reducing hospitalization is pronounced for the sub-population of patients with psychotic disorders and is not pronounced for the sub-population of patients with mood disorders…..the success of it is multiplied by the degree of community supports in place to support the CTO.

In a sense I’ve been trying to circle the square, square the circle…between the fears among some people in the psychiatric survivor community and the real plea from families, particularly families of patients with psychotic disorders.

I’m wondering, if the studies indicate this and the experience indicates this, is there a way to clinically narrow the application of CTOs….I think what people fear is inappropriate application of the language or the language being inappropriately structured and that it will capture a broader group of people. Have you given any thought to a clinical narrowing?

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Dr Eppel: We have, actually, and that’s a very good point. Our solution to that was to narrow the current definition of mental illness in the present Mental Health Act so that it would apply only to people with serious incapacity, with impairments of perception and judgment and behaviour and so forth. That would narrow it down and it might reassure some of the people you are referring to that they wouldn’t be scooped off the street and medicated and all this fear-mongering that we’ve heard.

The intent of the act is certainly not to do that. It’s aimed at a certain group of people that is small in number but yet who are suffering a great deal. We had thought that one way to go would be to narrow the existing definition of mental illness so that it would exclude certain groups to whom it clearly wasn’t relevant or wouldn’t apply. That would be one possible way of doing that…”

Bill 68 went through third reading at the end of June 2000. The word “imminent” was deleted from all

CONCLUSIONS: LESSONS LEARNED

The predicament of the mentally ill over many centuries has been characterized by two opposing currents: on the one side have been the forces of exclusion and oppression; on the other have been the movements for compassion and care. On the one hand is an attitude of ostracism and stigma, on the other is the medical therapeutic response.

Brian’s Law passed second reading on June 7, 2000 and  3^rd reading on June 21, 2000. Looking back now in 2020 what can we say about the mental health reforms and changes to the Mental Health Act that were made at the beginning of the century?

The Mental Health Act in Ontario is essentially unchanged from the law that was passed in 2000. As a general comment the problems addressed by the Mental Health Act 2000 have been superseded by greater problems.

Brian’s law has had some successes. Community treatment orders play a valuable role in ensuring treatment and support for a group of patients that otherwise may have languished in the throes of mental illness. There is continuing academic debate about the impact on hospital readmissions but on the ground many patients and family have benefited.

The changes to the criteria for involuntary admission have also made hospitalization more accessible for many patients by the addition of non-dangerousness criteria.

However a paper by Lebenbaum et al found an increasing rate of involuntary admissions between 2009 and 2013 in Ontario, from 70.7% in 2009 to 77.1% in 2013. The most likely reason for this is the reduction in number of hospital beds. Only the most severely ill are now admitted.

The number of psychiatric beds in Ontario dropped from 219 per 100,000 population to 81 per 100,000 from 1965 to 1980. By 2015 the number of beds was 34.2 per 100,000 a decline of 84.4% over the 50-year period.

The authors also note that the failings of deinstitutionalization have that to individuals with severe mental illness interacting with the police. Period between 1997 and 2013 the authors report a 17 fold increase in the number of police Mental Health Act apprehensions in Toronto Ontario from 522 to  8,441.

So one can conclude that changes to the Mental Health Act cannot replace the need for comprehensive psychiatric services in the community.

Governments since the 1980s in Ontario have promised mental health reform but the system remains inadequate to the needs of those with mental illness and psychological disorders.

Despite many well-written government reports professing the need to develop a coherent mental health system in Ontario change has been incremental piecemeal and outstripped by the needs of the population.

The extreme reduction in psychiatric beds over the past 50 years has had the undesirable consequence that many patients with severe psychiatric illness end up in the prison system rather than in a hospital system. This has been a hugely retrograde consequence of the originally high-minded deinstitutionalization goals.

The responsibility primarily rests with governments of all stripes. While talking a good game about providing care in the community they have instead cut services to hospitals and not replaced them. This may have helped the bottom line of government but has had huge negative impact on those affected by severe mental illness and their families.

It is also true that in Ontario it it is very difficult to make systemic changes. There are too many vested interests protecting the status quo. This includes the major professional groups, the Ontario Medical Association and the Ontario Nurses Association who are not prepared to see changes to the allocation of funding or the incentivization of improved models of care.

This means that only individuals who have the most severe levels of psychiatric disorder can gain admission to inpatient care i.e. those who meet criteria for involuntary admission. The rest are turned away to try and navigate the patchy and inadequate community services.

Inpatient psychiatric care in many places has suffered with decreased quality of care. Admissions are short.  The focus is on rapid treatment with medications. However admissions are not long enough to assess whether these medications are effective. Often medications are added to our doses are increased before an adequate time has elapsed to assess the impact of the initial treatment.

Nursing care has undergone changes. While nurses are now expected to have degree training they have had to take on multiple roles on inpatient units at the expense of direct interaction with patients. Nurses spend a large part of the time in documentation and administering medications. There appears to be limited time to sit down and get to know their patients well. Twelve hour shifts with alternating blocks of three days on and two days off has reduced continuity of care. This is very difficult for patients.

The climate on inpatient units has changed from therapeutics to risk-management. Patients are administered checklists to assess for suicidality. They are observed and monitored. What is missing is the critical therapeutic alliance between nurse and patient. In the absence of this the quality of information obtained by checklist and closed-ended questions is poor. Consequently the rate of suicide attempts and completed suicide or assaults on inpatient units has increased in some jurisdictions.

The need for reform continues.

Notes

i. John Gray, Margaret Shone & Peter Little. Canadian Mental Health Law and Policy Butterworths Canada October 2000.

Margaret Shone an Alberta lawyer who had been involved with amendments to Alberta’s Mental Health Act and Peter Liddle a professor of psychiatry and head of the schizophrenia division at the University of British Colombia. This book is a comprehensive overview of mental health legislation in Canada as well as a description of the nature causes and treatment of mental disorders.

ii. Hansard . Brian’s Law (Mental Health Legislative Reform), 2000 / Loi Brian De 2000 Sur La Réforme Législative Concernant La Santé Mentale

Consideration of Bill 68, An Act, in memory of Brian Smith, to amend the Mental Health Act and the Health Care Consent Act, 1996 / Projet de loi 68, Loi à la mémoire de Brian Smith modifiant la Loi sur la santé mentale et la Loi de 1996 sur le consentement aux soins de santé.

iii. Francis Lankin was quite a formidable politician who had previously been Minister of Health in the NDP government of Premier Bob Rae between 1991 and 1993.

iv. M. Lebenbaum, M. Chiu, S. Vigod , P Kurdyak. Prevalence and predictors of involuntary psychiatric hospital admissions in Ontario, Canada: a population-based linked administrative database study BJPsych Open (2018) 4, 31–38. doi: 10.1192/bjo.2017.4

v. Jennifer Walker. The Legacy of a Story: Commemoration and the Double-Narrative of Jeffrey Arenburg and Brian Smith. Disability Studies Quarterly Winter 2008, Volume 28, No.1.