Civil committal and release

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Involuntary committal to a mental institution raises two fundamental questions bearing directly on civil libertarian principles:

  1. what conditions, if any, justify committing an individual against his or her will?
  2. by what procedure(s) should committal take place?

Involuntary committal just as much as criminal conviction results in important restrictions of an individual’s liberty, But where criminal proceedings are routed through a judicial process, the procedure for involuntarily committing someone is not, The procedure outlined in the B.C. Mental Health Act closely resembles that found through most of the Anglo-Saxon world. It has remained unchanged in its essentials since at least the 19th century. In British Columbia anyone can initiate the process leading to committal for up to one year before fresh authority is needed. The process requires the signatures of two physicians who need not possess special psychiatric qualifications. Emergency procedures, which have effect for 72 hours, need fewer signatures. It is normal, therefore, for an individual to be committed without opportunity to challenge the evidence for committal or to have his interests legally represented,

Apart from habeas corpus, the only protection individuals have under the Mental Health Act against wrongful committal is Section 30. This section allows for an application for a court order either to prevent committal, if it hasn’t yet taken place (a highly unlikely state of affairs), or to effect release. Since the passage of the Mental Health Act the section has been rarely used. Unless there were exceptional circumstances a lawyer would advise his client to wait until a Review Panel could be constituted: a minimum of 30 days after committal, The Panels do not address themselves to the merits of the original committal. It is evident from a description of committal procedures that they inadequately protect the interests of individuals against wrongful detention. As a minimum, therefore, we should press for the following reforms:

  1. a hearing before an independent quasi-judicial tribunal prior to committal except for 72-hour emergencies;
  2. a right of appeal to the Courts against the decision of this tribunal;
  3. the right to legal aid;
  4. further restrictions on the use of emergency procedures to check their abuse. All emergency procedures should perhaps require a minimum of one signing physician plus a warrant issued by a member of the Tribunal or a Magistrate. The police, moreover, should no longer have authority to act solely on hearsay evidence as they presently do.
  5. In areas of the Province with psychiatrists, at least one of the signatures needed for—anything other than an emergency must be a psychiatrist’s.

What guidelines are we to give these tribunals for carrying out their task? What will justify a decision to commit? The Mental Health Act presently demands that a mentally disordered individual:

  1. requires medical treatment in a Provincial mental health facility; and
  2. requires care, supervision, and control ’for his own protection’ or welfare or for the protection of others. Even these conditions, weak and vague though they are, may not be satisfied in practice because of a confusion promoted by bad drafting in the Mental Health Act itself. The interpretative section of the Act places an ’or’ between (1) and (2) instead of the ’and’ found in Section 23. There is reason to believe that physicians have signed commitment certificates thinking that only one of the two conditions had to be satisfied. The conditions, furthermore, are weaker than they otherwise would be because of the phrase “or welfare”. Its presence thoroughly undermines whatever restrictive force is possessed by the anaemic “for his own protection”.

There are three reasons for thinking that the conditions for committal should be very restrictive. For some they might justify scrapping involuntary committal altogether, although that is a conclusion I don’t accept or intend to defend. These are:

  1. the present state of psychiatric knowledge is too fragile to carry the weight of the judgments that would rest on it;
  2. paternalistic justifications for the restriction of an individual’s liberty have a doubtful status. Either they are ruled out (as in Mill’s On Liberty) or they have to overcome a powerful initial presumption favouring the unimpeded exercise of liberty;
  3. it is hard to have much confidence about the predictive powers of our judgments about the danger someone constitutes to others. Quite independently of that, however, reliance on this ground constitutes an admission of preventive detention, at least in some circumstances.

The model Mental Health Act proposed by the Mental Patients Association in 1972 advances the following account of a mentally disturbed person which is considerably more determinate and less open ended than the present Act. It reads:

“mentally disturbed person” means a person suffering from a disturbance of mind that requires care, supervision, or control necessary because:

a. the person has threatened, attempted, or inflicted harm upon the person of another and who, as a result of a mental disturbance presents an immediate threat of substantial physical harm to others; or

b. the person is in need of care without which it can be reasonably assumed that he will suffer substantial personal physical injury due to his inability to care for himself and that the person is incapable, due to his condition, of making a rational choice as to whether or not he desires treatment….

What are the objections to this view?

Section 24 of the Mental Health Act creates Review Panels, but it offers them no instructions. This is one of the major shortcomings of the present system. The result, according to some who have served on the Panels, is that the standard for being kept in a mental institution is lower than the standard that must be met for initial committal. The remedy would be a clear instruction within the Mental Health Act that the issue before the Review Panel is whether the individual as he or she is would on the available evidence be committed if he or she were not already committed.

The Review Panels consist of three members: a chairperson, someone nominated by the Hospital, and someone nominated by the patient. Doubts can be raised about this method of constituting a panel. The patient’s representative, for example, frequently feels him or herself to occupy an uncomfortable position between being a representative of the patient’s interests and a judge of the case. Perhaps a more satisfactory system would be one with a panel with a more thoroughly independent status. Either way, it should be made clear that all members of the panel are guaranteed access to the patient’s medical records.

The initiative for calling a review rests now with the patient or someone acting on his or her behalf. It would seem a better protection of the patient’s interests if there were also mandatory reviews periodically.

Three further points should be added to the brief:

  1. the Department of Health at present gathers no statistics concerning involuntary admission and release. Without such statistics it is impossible to do anything but crudely guess how frequently the various powers established by the Mental Health Act are invoked; what the is proportion between voluntary and involuntary admissions, etc. The Department of Health should be urged to gather statistics and information in this area;
  2. it should be part of the Tribunal’s function to determine whether no less drastic option exists than admission to a mental health facility as an involuntary agent. If the sane end can be achieved with less drastic interference with the person, that constitutes an argument for selecting those means;
  3. at present children are, for the purposes of the Mental Health Act, regarded as voluntary admissions even if they come unwillingly. The upshot is that what protections there are for involuntary patients are not extended to them, It would seem advisable, therefore, that the tribunal examine the case of children who are admitted prior to their admission, although the criterion governing their deliberations ought to be a different one. They would not need to consider whether the child was a danger to itself or to others. Similarly the powers of the Review Board ought to be extended to cover children since, unlike other voluntary patients, they are not released on the basis of their own requests.