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Report on civil liberties and mental health legislation

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At your request I have studied the Mental Health Act of 1964 in order to assess if concepts of civil liberty were neglected or violated. I have included in my study an Act Respecting the Estate of the Mentally Incompetent (1962), as this act is an integral part of the official regulations that rule the B.C. Mental Health Services as such.

As I do not know of any accepted or objective criteria on which to base such an assessment, I have used my own norms and values; I will therefore ask you to submit my findings to a medical as well as a legal authority in order that the controversial issues can be assessed from all sides. I have felt it as my contribution to bring to your attention how it is possible in view of a not infrequent lack of sensitivity to the rights of others amongst people in authority to institute offensive practices in the management of patients in a mental hospital or clinic in spite of what we must consider quite progressive legislation.

A survey of the legislation

1962. The Lunacy Act was repealed by An Act Respecting the Estate of the Mental Incompetent

1964. The Government “put on the books” An Act Relating to Mental Health. This Act will only gradually come into effect. When that happens it will repeal the following acts: The Mental Hospitals Act of 1940; Clinics of Psychological Medicine Act of 1940; Provincial Child Guidance Act of 1955;Provincial Mental Health Center Act of 1955; School for Mental Defectives Act of 1953.

Other acts still in force and pertaining to the Mental Health Services. For example, there is an Act to provide for the Establishment and Maintenance of a Provincial Hospital and Home for the Aged Persons of 1948. This Act provides that the applicant must transfer his or her property to “Her Majesty”. The Act applies to senile or chronically ill patients going to Valley-View, Marpole or Kamloops Homes for the aged. A second is an Act respecting the Practice of Psychiatric Nursing of 1951. This Act tends to discourage the recruitment of R.N.s into the Mental Health Services. Third, is an Act respecting Sexual Sterilization of 1953.

The purposes of the revision and the consolidation of Acts concerning the Mental Health Services

The purposes of the revision of the Lunacy Act were seemingly first of all to eliminate the word “lunacy”. Secondly, the jurisdiction under the act was extended to any judge and not only to judges of the Supreme Court. Thirdly, the procedures for declaring a person respectively incapable and capable as well as establishing trusteeship were streamlined.

The purpose of the expected consolidation of the give Mental Health Acts mentioned above seem to be:

  1. to introduce in all public services for all types of mentally disordered persons (except the aged) similar and more progressive principles of mental health administration and services.
  2. to emphasize of medical aspect of mental disorder by deleting the mode of involuntary admission by court order, and substitute it by an involuntary admission by medical certification of two physicians (sections 23 and 25). The court’s role is thus limited to cases where and when an admission has been made to a magistrate that a mentally ill and dangerous person is at large (sec 27). In this case the patient can only be contained for 72 hours and must be released if the certification mentioned above (sec 23) has not taken place.
  3. to make it possible if the public so requests, to abolish gradually the large, provincial mental institutions and introduce mental health service in the community under the responsibility of local mental health societies (sec 5).
  4. to abolish the differential admission policy in use respectively to Crease Clinic and to the Provincial Mental Hospital.
  5. to place the full responsibility for making decisions a to who are suitable and eligible for the kind of hospital treatment available in the provincial mental health services, on the medical superintendent (sec 21).
  6. to ensure that patients who have been involuntarily admitted receive one medical assessment once a year (sec. 24.1).
  7. to ensure that involuntary patients will be discharged 12 months after their admission if the authority for their detention had not been renewed (sec. 24.1).
  8. to make the admission procedures to mental health facilities similar to those procedures used by the admission to general hospitals (sec. 22 and 26).
  9. to provide that the next of kin be informed about the patient’s rights to appeal against involuntary admission and detention (sec. 32).
  10. to provide for a 30 days admission to schools for the retarded.
  11. to provide for non-residential care for retarded.

A comparison between the new and the old legislation indicates an increasing emphasis on providing more prompt and effective attention to those situations of hospitalization that are painful or provoking for the patients and their environment. Following legal instructions indicate this trend:

  1. the medical certificate for involuntary admission is only valid for 14 days and not for one month as under the old legislation.
  2. the magistrate warrant is only good for detention for 72 hours.
  3. a patient or a person connected with him can apply to a judge before an involuntary admission or within three months of the date of the involuntary admission for an order prohibiting the admission or releasing of the patient.
  4. voluntary patients may leave after only 72 hours notice (previously they had to wait for five days).
  5. a certificate of discharge can be provided at request.
  6. after three months of involuntary hospitalization an appeal against detention can be made to a panel of 3 psychiatrists, previously the appeal board consisted of physicians.

Notwithstanding the many commendable and undoubtedly improved features of the proposed new mental health legislation which will gradually increase the mentally ill persons’ right to treatment and which will be a protection against unjustified detention in a mental institution, I think that the legislation is not explicit enough in expressing the rights of the patients and preventing administrative convenience from overriding those principles which will ensure the patient the most effective treatment as well as his or her human dignity.

Criteria for assessment of conflicts of interests

In order to assess those issues as objectively as possible, we must take into account that the authors of the mental health legislation seemingly have tried to make a legislation that will deal with medical and social problems at the same time. The acts are designated to delineate and to protect the rights not only of the mentally disturbed person and of the public, but also of the institutions that have been delegated the authority to decide how these “rights” can be administered to the benefit of all concerned. This decision begs the question:

  1. should this authority be delegated to a medical authority?
  2. what is the future role of the court in matters of mental dysfunction?
  3. What rights has the mentally disturbed person for whom the medical superintendent has “no room”?
  4. What duties have the penal institutions toward the asocial individual for whom no treatment is available?
  5. If “a mental health society” assumes the responsibility, who will foot the bill?
  6. What provisions are made for ensuring that the mental health services will develop according to increases in scientific knowledge and change in social mores when absolute and uncontested authority is placed in the hands of one man, the medical superintendent? We must not forget that we have experienced that, in spite of much talk about new therapies, the mental hospital has a grim tendency to become a limbo for social outcasts and defenceless persons.

The role of the superintendent

It seems that if the medical superintendent is delegated the uncontested authority to decide whom his or her institutions can and will treat, as well as the state of his or her patients’ mental capacity, then he or she has ipso facto the responsibility to clarify to those concerned, namely the general public, his or her principles of administration:

  1. On what criteria does he or she make decisions? Definition of mental illness? Opinion about treatment or methods?
  2. Can his or her institution in fact provide effective treatment to those who are admitted?
  3. What are the institution’s responsibilities for after-care and rehabilitation?
  4. To what degree does the patient or his or her guardian participate in the decision-making regarding treatment and administration of his or her estate and civil rights?

If the superintendent cannot clarify his or her area of competency, then, of course, he or she cannot have an uncontested right to decide the patient’s rights to hospitalization.

The role of the court

The role of the court has been abrogated. However, as long as the patient’s behaviour is used nearly exclusively as criteria for diagnosing mental illness, it seems necessary and logical that the court keep an important role in the public administration of mental health problems. Even if we could assume that the new legislation would force the medical superintendent to define his or her area of competency, and as a result many of the mentally ill and their relatives would know about the right of treatment and seek treatment before the illness had created severe social problems, we must not forget that there are many instances of mental illness or disturbance for which this legislation does not provide any service. These instances are often the most serious cases of mental dysfunction that cause citizens severe grief and anger, and thus contribute to stigmatize all who have mental health problems.

The necessity for forensic medicine is not mentioned in this act.

It seems that the new legislation is disregarding the most crucial issues of the mental health problem by not facing and answering:

  1. What social institution shall deal with those types of mental disturbances for which the medical superintendent cannot be held responsible?
  2. Which type of service is deemed effective for such cases?
  3. Must the citizens accept that the court must continue to order indefinite prison terms for individuals who have tested the community’s tolerance to its limits? Has our civilization not reached the point when we must admit that we cannot eliminate such fundamental problems merely by refusing to seek for the chain of cause and effect?

As the court is the institution established for the protection of the rights of the citizens it seems important that the new mental health legislation entails the provision for a close cooperation between the court and a11 the other public institutions which play a part in the social as well as the emotional development of the citizen. It should be the role of the court to decide, after having taken appropriate counsel, to what degree the individual’s freedom must be curtailed in order to protect society, but it also behoves the court to ensure that the individual be accorded his right to social rehabilitation.

Criticism of the sections of the Acts and their administration

  1. An Act Respecting the Estates of Mentally Incompetent Persons

    While a perusal of this act can leave the unwary reader with the impression that the act provides a good and necessary service and protection for citizens who have become incapable, my experience is that the administrators of this act do not take into account that mental incompetency can be not only be a very inconsistent human condition, but it can also frequently be a differentiated state of mind where the factor incompetency is not extended to all the individual’s faculties. Thus a patient might be mentality incompetent only for a very short while or he or she might be only partly mentally incompetent for instance in regard to the reality of others’ attitudes to him or her, although he or she still remains competent in matters such as work performance, financial obligations and civil rights.

    As it is of utmost importance for the successful treatment of mental illness, that the patient be given frill support and all available cues to keep him or her beware of his or her identity, it is of course very detrimental to make any abrogation of his or her responsibilities and rights, except that the patient’s mental confusion is such that he or she will act contrary to his own “ego-support”. However, I have, to my great concern, witnessed that the procedure of “making a person incapable” in done routinely and not infrequently for reasons which are purely administrative in intent and in my opinion a violation against the right of the individual. Furthermore, when the physician has made his or her judgment regarding the patient’s mental state at the time of admission, he rarely changes it (although the patient’s mental condition has changed) until the day of discharge). It is so much more convenient to let the clerical staff notify the public trustee who automatically at the time of discharge will transfer the patient’s rights back to him or her, if he or she has not been notified that the patient must remain as incapable. If the practical administration of patients’ affairs is not kept up to date on account of lack of staff, the patients and their relatives do frequently experience this delay in getting the disposition of their funds, pensions or bank account. It is their experience that it is frustrating and humiliating for the patients to realize that they have been considered incurable especially when they find that the ones who would look after their business did not do it as well as they could have done it themselves.

    It seems also strange that this act collides and even supersedes the Act for the Protection of Children that is administered by the superintendent of Child Welfare. The Public Trustee has no provision for giving actual care and supervision for children for whom he or she is guardian according to the mental health legislation.

  2. An Act Relating to Mental Health

    Part 1. Sec. 2. alcohol addict means a person suffering from a disorder of the mind evidenced by his so being given over to the use of alcohol that he is unable to control his use thereof… and as a result a) is incapable of managing his affairs or b) endangers himself and others.

    Mentally ill person means a person who is suffering from a disorder of the mind a) that seriously impairs his ability to react appropriately to his environment or to associate with others; b) and that requires medical treatment or makes care supervision and control of the person necessary for his protection or welfare or for the protection of others.

    The quotations above are samples of the kind of interpretation of terms that seems to me to be unnecessary stigma provoking, as well as diagnostically misleading.

    Part 2. Secs. 6, 9 and 10. Minister and Staff

    This act requires that the Director of Mental Health Services be a qualified psychiatrist. However, the other medical officers can be physicians. It seems a very unhealthy situation, especially if the Deputy Minister is not a psychiatrist, because the only psychiatrist will then be something like a counsellor only with no authority on the highest level and little influence in the daily work in the hospital. The result is that there is no one who can formulate the guiding basic philosophy of the institution. This year’s annual report of the mental health services is, in my opinion, outright scandalous ii the statements should be taken as a professional medical report. This is a very important issue because this report is presented to the people as a true picture of the psychiatric services, while the bitter reality differs considerably from the rosy picture made up by a civil servant who is trying to please his or her political master. Such a report might encourage communities to continue to send their iii to this institution, believing that they will be given first class treatment.

    Sec. 16. Expenses of examination

    The Act places these expenses on the local area and this can, in my experience, become a deterrent for patients in obtaining the necessary services. It can be a real discomfort and very time consuming to prepare a mentally ill person for his hospitalization. The Government should therefore encourage the people who can locally provide such service by reimbursing them properly. Now, if the patient is only a little resisting, the family have to get the police because their services are free if the person is committed. Many court committals are made because no one can pay the medical bill or the transportation. It is however a very disturbing and destructive action from a psychodynamic point of view.

    Sec. 16 (6) Residence and responsibility Act

    This section mentions that the Residence and Responsibility Act applies for the purpose of this section. Under sec. 7, it is stated that every resident of the province in entitled to mental health services in general. The practice under the old act is to repatriate patients who have been hospitalized in other provinces and who have not lived one year in B.C. While it might be good therapy to transfer a patient to a hospital in which he or she has received good care, and in which he or she can receive visits from relatives, it can be very cruel and undemocratic to apply this rule simply for administrative convenience. For example, in order to get rid of a difficult patient, or to increase the hospital rate of annual discharges for the annual report, or to save money. Is the mentally ill patient suffers from feelings of rejection; this policy is in general a very detrimental one.

    Sec. 18. Conveyance of Patients.

    In the original copy of the new act, there no provisions made for transportation so an amendment was made regulating that the police department can escort involuntary patients. As the Act has been changed in order to diminish the role of the court, it seems unnecessary to continue to use police escorts as if mental illness was a criminal offence when two nurses, a doctor or a nurse, or even a driver and a nurse, could achieve, in most of the cases, the patient’s co-operation. This arrangement has worked well in Europe.

    Part 3. Duration of Detention

    It seems unbelievable that the only guarantee the patient has for getting regular medical assessment in a mental hospital is “that an involuntary patient must be examined before the date of the anniversary of his admission, if he shall be detained for a further 12 months”. It seems to me that no institution should be licensed for the treatment of any type of oven chronic patient if each patient was not given a monthly appointment with his or her doctor. Acute and short-term patients should be given two appointments weekly for the first six weeks, and once weekly for the next six weeks, and twice monthly for the next six months. In Denmark each mentally i11 person, each prisoner married mother who has not a relative who can act on his or her behalf is given a citizen as an unofficial guardian who has the obligation to see that the person in getting his or her rights in the form of medical treatment, court hearings or support from the father of the baby.

    Sec 29. Direction and Discipline of Patients.

    In the Act there is not mentioned anywhere anything about the work patients are doing. While it usually is accepted that work is as an important factor for the rehabilitation of the mentally ill patient, there are many practical problems involved in obtaining the right kind of work for the patient. While it is of course impossible to legislate against stupidity, it seems to me that the act should emphasize that the institution must not subject the patient to do the kind of work that the society at large despises because it is dirty and menial. Moreover, the patient should net he forced to do senseless tasks or tow work in an outdated fashion. Furthermore the work-leaders should be people who enjoy working with patients and who do not supervise them as if they were a gang of prisoners.

    Part 4, Sec. 29 Regulations.

    This section places all the power for regulations at the top. There is no provision for enlisting the cooperation of the staff on the practical level, or interested members of the community. If any public health service is to be kept on a high standard and attract staff who have high qualifications and professional ethics, there must exist a non-political board of competent professionals as well as public-minded citizens which can: act as the people’s watchdog, can protect the staff against each other as well as against political pressures, and which can formulate standards of care.