Abstract
Mental health Acts are used in all developed countries to address the issue of how a person with a severe mental illness which is likely to cause harm to the person or others and which makes voluntary admission impossible, can be admitted and treated while protecting the person's legal rights. Such Acts are essential for the recovery of many people, especially those with psychotic illnesses, when the illness deprives them of their ability to direct their care.
The Internet and international instruments make comparisons of mental health laws across jurisdictions relatively easy. Comparisons can be particularly helpful for countries, such as Australia and Canada, which share many similarities.
This article compares mental health Acts in the eight jurisdictions in Australia and the 13 in Canada on their involuntary admission criteria, treatment authorization and community treatment provisions. The Acts are also compared as they pertain to the Canadian Charter of Rights and Freedoms [1] and the United Nations Convention on the Rights of Persons with Disabilities [2].
Background
Australia and Canada: geography, culture, governance, legal
Australia (21 million people) and Canada (33 million) have a number of large cities and many sparsely populated areas. Both have significant indigenous populations and many citizens whose first language is not English. English is an official language in both countries and French is also in Canada. Both countries are parliamentary democracies and members of the Commonwealth of Nations. Australia and Canada are federations and the provinces/states/ territories are responsible for passing mental health laws. Health care services and access are roughly comparable.
The courts are the arbiters of the interpretation of mental health Acts in both countries. However, in Canada the court can also declare a law invalid if it violates the Charter of Rights and Freedoms. Australia does not have a federal Bill of Rights, although the Australian Capital Territory [3] and the State of Victoria [4] give the relevant courts limited powers to declare statutory provisions incompatible with human rights [5].
Legislatures and courts may be bound, or at the very least influenced, by international human rights codes. Both Australia and Canada have ratified the United Nations Convention on the Rights of Persons with Disabilities [2].
Method
The sections of Canadian and Australian mental health Acts relating to committal criteria, treatment authorization, and community treatment orders were compared. The analyses are informed by the work of Fistein
Mental health Act provisions were also examined for compliance with rights codes (the Canadian Charter of Rights and Freedoms [1] and the UN Convention on Rights of Persons with Disabilities [2]) using the sections most relevant to the issue at hand.
Results
Involuntary admission criteria: Committal
To be committed in Australia or Canada it was found that all or some of the following five criteria had to be met. The person must:
have a mental illness or mental disorder as defined in the legislation;
be likely to self-harm or cause harm to others because of the illness, OR be at risk of mental or physical deterioration;
need psychiatric treatment, and
be incapable of making an admission or treatment decision.
Involuntary inpatient admission must also be the least restrictive alternative.
The definition of mental illness/mental disorder
All jurisdictions require the individual to have a mental illness/mental disorder as defined in their legislation. Differences can occur in the name, specificity, severity and consequences of symptoms and exclusions.
All Canadian jurisdictions use the term ‘mental disorder’. However, the term ‘mental illness’ is used in most Australian jurisdictions. In both countries, definitions of the term range from broad to comprehensive. For example, ‘any illness or disorder of the mind’ qualifies in South Australia [7]. Ontario has a similar broad definition [8]. The majority of Australian definitions are detailed and similar to that of New South Wales where mental illness is a ‘condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of (a) delusions; (b) hallucinations; (c) serious disorder of thought form; (d) a severe disturbance of mood; (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the above…symptoms’ [9].
Under four Canadian Acts, a mental disorder, by definition, is one that requires psychiatric treatment [10–13]. In Australia, the need for treatment is not a definitional issue, but does form a separate criterion for committal.
Most Australian jurisdictions list exclusions. In Victoria, for example, a person is not to be considered mentally ill because he or she engages in a particular political or religious activity, engages in sexual promiscuity or immoral conduct, takes drugs or alcohol, has an antisocial personality or an intellectual disability or is a member of a particular cultural or racial group [14]. In contrast, Canadian definitions generally do not specify exclusions.
Rights codes require any limitation on rights to be cast as narrowly as is reasonable. The detailed definitions in both Australia and Canada appear to fulfil this principle, although whether detailed lists of exclusions are necessary is debatable.
Be likely to self-harm or cause harm to others because of the illness, OR be at risk of mental or physical deterioration
All jurisdictions require the mental illness/disorder to be likely to cause some type and degree of harm, but not all have, as an alternative, a deterioration criterion.
All Australian jurisdictions have a ‘broad’ harm criterion; for example, ‘the person requires treatment for the person's own protection from harm (including harm involved in the continuation or deterioration of the person's condition) or for the protection of others’ [15]. Harm is not limited to physical or bodily harm. In Canada the trend has been to broaden criteria, but four jurisdictions continue to limit harm to physical or bodily harm [16–19]. Courts in Canada have held that deprivation of liberty on the basis of physical dangerousness criteria is permissible under the Charter [20,21].
Most Canadian jurisdictions now offer, as an alternative to the harm criterion, a deterioration criterion. Most Australian jurisdictions also have a deterioration alternative; for example, Queensland's legislations requires that ‘there is a risk that the person may (i) cause harm to himself or herself or someone else; or (ii) suffer serious mental or physical deterioration’ [22]. Earlier clinical intervention is possible under the deterioration criterion, if it applies, than under the harm criterion.
Need psychiatric treatment
Most Australian jurisdictions have a requirement that psychiatric treatment be needed before a person can be involuntarily admitted. In Western Australia, for example, the individual must have ‘a mental illness requiring treatment’ [23]. Only five of the 13 Canadian jurisdictions (British Columbia [24], Saskatchewan [25], Manitoba [26], Nova Scotia [27], and Newfoundland and Labrador [28]) have a specific need for treatment requirement, but eight do not, including the two largest provinces, Ontario and Quebec.
From a rights code perspective, a need for treatment requirement limits the scope of involuntary intervention, even if there is a broad definition of mental disorder that includes untreatable conditions. A need for treatment criterion implies that the purpose of the admission is not social control but to treat an illness.
Be incapable of making an admission decision
Outside a mental health Act a person who is capable of making a decision to be admitted has the right to refuse to be admitted. Under mental health Acts can a capable person refuse admission if all the other criteria are met?
Of the 21 jurisdictions studied, in only three, all in Canada, does legislation provide that a fully capable person cannot be involuntarily admitted [29–31].
Most Australian legislation that mentions capacity is worded similarly to Western Australia's Act. Admission can occur if ‘the person has refused or…is unable to consent to the treatment’ [32]. Only a capable person could have ‘refused’ or ‘unreasonably refused’ [33]. Legislation in Prince Edward Island [34] and Manitoba [35] has similar wording. In fact, most Canadian jurisdictions imply that capable admissions are possible because they use terms such as Alberta's ‘unsuitable for admission to a facility other than as a formal patient’ [36].
In contrast to all Australian and most Canadian jurisdictions, a fully capable person in Saskatchewan, Nova Scotia and Newfoundland and Labrador cannot be involuntarily admitted no matter how ill or dangerous [20]. The rationale is that this respects capable people's rights to make decisions and also avoids turning hospitals into ‘jails’ when capable patients refuse the treatment required for their discharge. However, an incapable person could still refuse the treatment required for discharge by way of an advance directive unless this is not recognized (in Australia) or prohibited for involuntary patients, for example, in British Columbia [37].
Article 12 of the Convention on the Rights of Persons with Disabilities sets out the presumption that people with disabilities, including mental disabilities, have legal capacity [38]. This requires a ‘more nuanced approach towards determining legal capacity’ [39], and it may be that a lower standard of capacity conforms more readily with Article 12 requirements. It would also seem difficult to justify detention for treatment of capable patients who have refused treatment for their mental illness.
There are, however, potentially severe consequences for society and the individual if individuals are not involuntarily admitted because they are capable yet they meet all the other criteria including serious harm to self or others. Therefore, Canadian provinces that include this capacity requirement use a higher standard of ‘fully understands and appreciates’ [40].
Involuntary inpatient admission must be the least restrictive alternative
Legislation across both countries states or implies a ‘least restrictive’ principle such that involuntary measures should not be used when the same objective can be accomplished with less restrictive or voluntary services.
No Canadian jurisdiction makes explicit reference to compulsory treatment in the community as a least restrictive option. However, South Australia, as an example, does: ‘In considering whether there is no less restrictive means than a detention and treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order’ [41].
The least restrictive alternative is consistent with rights codes.
Treatment authorization
Once the person is involuntarily admitted, how is treatment authorized or consented to? The ‘treatment’ referred to is usually that required to get the person well enough to regain their liberty.
Outside of the mental health context, the law recognizes that capable individuals have a right to consent to or refuse treatment, even when such decisions seem objectively unreasonable [42]. However, some mental health Acts circumscribe the right to refuse treatment for mental illness or disorder regardless of decision-making capacity while others require the person to be incapable of making decisions about treatment.
All Australian jurisdictions have adopted the policy position that involuntary admission allows involuntary treatment to be authorized (usually by the treating physician) because the person is either incapable or refuses treatment. Thus involuntary psychiatric patients may not refuse treatment in Australia.
In marked contrast, a number of Canadian jurisdictions do allow involuntary patients to refuse the treatment necessary for them to regain their liberty. For example, in Ontario a patient found to be capable may refuse treatment. Treatment may even be refused if the person is incapable. The patient's substitute decision maker must refuse if the incapable person has a prior capable wish applicable to the circumstance to refuse treatment. Moreover, the incapable person's substitute decision maker may refuse if there is no prior wish and they believe refusal is in the patient's best interests [43].
Like all Australian jurisdictions, British Columbia, [44] Saskatchewan, [45] and Newfoundland and Labrador [46] do not allow treatment refusal. Other provinces do allow treatment refusal but it can be overruled. The Alberta review tribunal can overturn a refusal [47]. Like Ontario, Nova Scotia [48] and Manitoba [49] require the substitute decision maker to follow capable wishes including treatment refusal. However, unlike Ontario, if following the wish would ‘endanger the physical or mental health or safety of the patient or another person’ the decision must be made in the patient's best interests, and a refusal can be negated.
From a rights code perspective, people come to different conclusions about the rights of involuntary patients to refuse the treatment required for their release. For example, s 15 of the Canadian Charter [1] and Article 12 of the United Nations Convention on the Rights of Persons with Disabilities [2] speak to equality as a right. It can be argued that involuntary patients are equal to voluntary patients and therefore they both must be allowed to make their own decisions, or if incapable, have their previously expressed capable wishes respected. Alternativelly it can be argued that the two groups are not comparable because the consequences of refusal are not equal. The refusing involuntary patient stays incarcerated indefinitely but the voluntary patient walks out of hospital.
Section 7 of the Canadian Charter reads: ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’. Article 14 of the Convention is similarly worded. Involuntary treatment, it has been said, violates the security of the person [50]. However, continued detention because of lack of treatment clearly violates the liberty right. Involuntary admission, which interferes with liberty, has been found not to violate the Canadian Charter of Rights and Freedoms because the deprivation of liberty accords with principles of fundamental justice [12]. Similar arguments may be made supporting compulsory treatment [51].
Jurisdictions also differ on the criteria by which the treatment decision is made (e.g. previously expressed wishes or necessary or best interests), who makes the decision (family member or official) and associated review and appeal issues. These issues will not be discussed here.
Community treatment orders
Community treatment orders (CTOs) require a person with a mental illness/disorder to adhere to a treatment plan in the community (the least restrictive setting) to help the person keep well and reduce unnecessary hospitalization. Important considerations with CTOs include the criteria, treatment plan development, consent, duration, monitoring, and recall and extent of use.
All Australian jurisdictions have CTO provisions. In contrast, only six of 13 Canadian jurisdictions have CTOs, although another two use conditional leave and Quebec uses court ordered treatment that can continue after discharge. Thus, nine of 13 Canadian jurisdictions have some form of compulsory community treatment.
CTO use is much more prevalent in Australia than Canada, although it has also been argued that CTOs have been overused because of the absence of an Australian Bill of Rights [52]. The difference in rates of use is probably linked to the more restrictive CTO criteria in Canada and the emphasis on using CTOs as an alternative to inpatient admission in Australia. In Victoria, for example, ‘At anytime, an authorized psychiatrist may make a community treatment order for a person who is subject to an involuntary treatment order if the authorized psychiatrist is satisfied that (a) the criteria in section 8(1) [involuntary] apply to the person; and (b) the treatment required for the person can be obtained through the making of a community treatment order’ [53].
In contrast, all Canadian CTOs can only be issued if the person has been hospitalized or treated previously. In Saskatchewan, for example, even though the person meets the inpatient committal criteria, he or she must also have had, in the past two years, either three previous involuntary admissions or 60 days of involuntary hospitalization in that province [54].
Unlike any Australian jurisdiction, Ontario [55] and two other Canadian provinces require the patient or the substitute decision maker to consent to the CTO. If the person becomes capable, but continues to be symptomatic, he or she can then refuse the CTO. Even if the person remains incapable the substitute decision maker can terminate the CTO at any time by withdrawing consent. CTOs vary in duration from 12 months in Tasmania [56], for example, to three months in Saskatchewan [57]. Others in Canada are six months.
CTOs clearly encroach upon an individual's right to liberty, but they can be seen as a way of providing access to services outside of more restrictive hospitalization. Dawson has pointed out that well supported CTOs can ‘bring relief to families…encourage use of less restrictive forms of treatment…prevent unnecessary criminalization, and…bring greater stability to the lives of the seriously mentally ill’ [52, p. 157].
Discussion
While there are many similarities between mental health Acts in Australia and Canada, the differences are of more interest. Differences are discussed within a ‘treatment’ focus and a ‘rights’ focus, although rights protection mechanisms present in all Acts (e.g. notices, committal procedures, tribunals) are not addressed in this article.
Committal criteria
Australian committal criteria have more of a treatment focus than those of some major provinces in Canada. This is reflected in the Australian Acts’ use of the word ‘illness’ rather than ‘disorder’, the broader committal criteria, and the need for treatment as a criterion. Some Canadian jurisdictions focus more on rights as reflected in narrower committal criteria and limit committal to those who are incapable.
In the definition of the mental illness/disorder, Australian jurisdictions refer to ‘mental illness’, which is treatable, rather than to the Canadian ‘mental disorder’, which can include non-treatable disorders. Despite this, some Canadian jurisdictions, but no Australian, include ‘need for treatment’ as part of the definition. This provides both a treatment focus and a rights focus by limiting those who qualify. Australian jurisdictions that use exclusions (e.g. political belief, sexual orientation, etc.) in the definition may provide more rights focus than Canadian jurisdictions.
A treatment focus is reflected in all Australian Acts because they have broad harm criteria and, as an alternative, deterioration criteria. Some Canadian Acts restrict admission to the physically dangerous and do not recognize deterioration. These narrow dangerous criteria may be seen as reflecting a rights focus, although Canadian courts have found that broad harm criteria, combined with fundamental justice protections, do not violate the Charter [20,21].
The treatment focus of Acts is reflected in the ‘need for treatment’ as a committal requirement, which appears in all jurisdictions except three in Canada. Thus non-treatable people can be detained contrary to both a treatment focus and a rights focus.
A rights focus and a treatment focus are evident in three Canadian provinces. In these provinces if a person is fully capable they cannot be admitted as an involuntary patient. The rights argument is that capable people, to preserve their autonomy, should not be compelled to be admitted or treated. With the treatment focus it means that capable people cannot refuse treatment because they cannot be admitted.
Treatment authorization/consent
Australia has a stronger treatment focus than many Canadian jurisdictions because no Australian jurisdiction allows involuntary patients, or their substitute decision makers, to refuse the treatment required for the patient's release. However, a number of Canadian jurisdictions do permit refusal of the treatment required for release. These are ‘quarantine’ rather than ‘treatment’ Acts in Appelbaum's terms [58].
In relation to a rights focus, some people interpret rights codes as requiring involuntary patients to have the right to refuse treatment and would favour the Ontario model with its apparent pre-eminence of ‘autonomy’. The evidence indicates that treatment refusal denies liberty rights and results in additional seclusion and restraint, assaults on nurses, longer incarcerations and increased costs [51, pp. 242–247]. For example, ‘Professor’ Starson was detained without treatment for nearly seven years before his delusions nearly caused him to starve to death [59,60]. Moreover, other involuntary patients have been detained for over 20 years because Ontario law allowed them not to be treated [61]. That does not appear to be consistent with the spirit of rights codes.
Community treatment orders
Community treatment orders (CTOs) are universal and widely used in Australia, whereas three Canadian jurisdictions do not have them, although all have leave provisions. Australian CTOs are more treatment focused because they are not restricted to people with a history of previous hospitalizations like Canadian jurisdictions. Canada's requirement of a history of previous hospitalization and consent to CTOs reflects more of a rights focus.
It can be argued that there is both a stronger rights focus and treatment focus in Australian CTOs as they can be used as least restrictive alternatives to prevent or shorten hospitalization for people early in their illness. Early treatment is also likely to improve prognosis. In contrast, Canadian CTOs are restricted to patients who have had considerable hospitalization.
Conclusions
There are significant philosophical differences regarding the purpose of involuntary admission between Australian and some Canadian jurisdictions where treatment refusal is possible. This is addressed in a recent discussion paper of the Canadian Psychiatric Association [62]. The use of CTOs early in the treatment process may be worth considering in Canada.
There are a number of other issues not discussed here, for example review tribunals and committal procedures. Despite philosophical differences, the way in which the relevant legislation is shaped in both countries will increasingly be affected by international trends towards the rights of persons with disabilities. How those rights are taken into account during legislative reform processes will no doubt provide further areas for comparative exploration.
Footnotes
Acknowledgements