Abstract
We thank Dr. Okoro for his letter. We agree that autonomy and consent are the cornerstones of medical practice. The issue with civil commitment law, both inpatient and community orders, is that there are times when for issues of risk to oneself or others and/or incapacity to care for oneself, a person’s treatment decisions may need to be overridden. This is inherently coercive, which can result in negative feelings for the individual concerned. The adherence to the principles of procedural justice may minimize these feelings. Our article set out to explore these issues in the context of community treatment orders (CTOs) in our jurisdiction.
Maximizing a person’s voice in this process (a procedural justice principle), even if ultimately the individual is treated without his or her own consent, is the balance this type of legislation must strike. This balance of patient voice in the context of overriding issues of protection of the person’s rights (to integrity of the body, safety, and access to treatment in the least restrictive manner) as well as public safety is not straightforward but complex and nuanced. The inclusion of specific criteria for qualifying for a CTO as well as appeals and protection provisions in CTO legislation are important to balance these competing ethical duties.
The current CTO process in Ontario is consent based where the individual subject to a CTO, or his or her substitute decision maker if she or he is incapable, must voluntarily agree to it. These individuals are provided with rights advice as well as legal advice and could contest the CTO and/or the finding of incapacity if they do not agree with it. A physician cannot issue a CTO for a capable individual, who meets the CTO criteria, against his or her wishes.
Many jurisdictions have tried to find a “golden road” in this area; we are not aware of any that have fully achieved it. We, however, disagree that there is sufficient provision in mental health acts, the common law, and United Nations provisions to ensure community treatment is achieved when issues of significant risk and/or incapacity arise. Most developed countries have implemented specific CTO legislation as voluntary treatment decisions are insufficient to meet public safety and personal protection and treatment needs of certain individuals with severe mental health issues.
And what would Szasz think? We hesitate to infer thoughts of others, but as he did not believe there is such a thing as mental illness, he would likely see all this as improper. If that view was followed, he would consign many people with severe and enduring mental illness to poverty, homelessness, and criminalization.