Community treatment orders and Nova Scotia—the least restrictive alternative?

Shelley Trueman
Health Law Journal 2003, 11: 1-33
CTO/IOC legislation is a bewildering array of presumptions and inconsistencies. It is a reaction to the inherent difficulties of de-institutionalizing treatment into the community and has been based on heated arguments of misconceptions and misunderstandings of various proponents and opponents of CTOs/IOC. Legislators in the United Stated have implemented widely varying legislation over the past twenty-five years yet there is little common basis for states to proceed on or even to analyse when conceptualizing IOC legislation. It isn't surprising that Canada, after looking towards the United States as a leader in mental health legislation, is also encountering inconsistent and illogical legislation from province to province. To compound Canada's own inconsistencies, Canadian courts have not generally followed the lead of the United States of protecting fundamental rights within Canadian mental health legislation. As a result, Canadian provinces still rely on a broad parens patriae justification when infringing the rights of mental health patients and have not truly effected the narrower danger standard that is stated within its legislation. Provincial legislators should be very careful when proposing CTO legislation that will further erode patients' rights. Many provinces and states use the least restrictive alternative to justify the use of CTOs/IOC, either as a catch phrase or as a legitimate factor in considering options. Generally, though, the principle is used in terms of coerced treatment rather than a person's fundamental right to liberty or not to be arbitrarily detained. Legislators have translated the institutional model of medical treatment to the community by intrinsically linking treatment to committal. The most obvious contradictions of community treatment is the backwards slide of preventive commitment based on deterioration rather than purely danger. This includes the arbitrariness of releasing hospitalized patients on a continuing deterioration or even danger basis rather than fully discharging them. Another major problem is taking away a patient's inherent right, either by denying the patient's own decision-making if competent, or by ignoring prior wishes or substitute decision-making, to accept or refuse treatment. Legislators have succumbed to an artificial concept that mentally ill persons are dangerous or incompetent and do not have the ability to choose treatment when they are decompensating. Thus they have provided for patients' treatment in a confusing array of CTOs/IOC, all dependent on interference or restriction of a person's basic right to decide for himself. Very few studies have been able to isolate the key factors of what makes CTO/IOC work, although recent studies seem to suggest that CTOs/IOC won't work if there isn't the corresponding support/service system. At the same time, there have been studies of voluntary treatment plans that are succeeding, such as assertive community treatment, that do not rely on coerced treatment. Among these are PACT, case management, mobile crisis units and early intervention methods such as the delivery of emergency services (at a facility) when so requested. When considering CTOs as part of recommended amendments to the Hospitals Act, the Law Reform Commission certainly started on the right track by consulting a broad range of stakeholders and advisory groups within the Nova Scotia's mental health system. Unfortunately, the Commission derailed and did not fully develop its inquiry. Ideally, the Departments of Justice (or the Law Reform Commission), Community Services, and Health should have modelled a full-scale investigation after the RAND study developed for the California Senate. Consultation is definitely necessary, but it needs to be followed up with empirical evidence or at the very least other studies. Realistically, this may be beyond the financial means and resources of the Nova Scotia government. However, it is not beyond the reach of the Commission to explore such controversial issues further to see why certain legislation has been implemented in different provinces and whether it has proved effective or not. As New Brunswick is currently the only province that has considered and rejected CTOs, concentrating instead on community services and supports development, they deserve more than a cursory glance by the Commission and any inquiry performed by New Brunswick may contribute valuable insight as to why not legislate CTOs. This would be a more practical approach for the Commission to take rather than doing a survey of what other provinces are legislating and then accepting it blindly with or without the support of their stakeholders and advisory groups. The focus of the de-institutionalization movement was to revolutionalize how persons with mental illness are treated. A return to an institution mentality is not needed. Patience and the support of a new and better system that puts voluntariness and the mental health consumer in the centre of decision-making is the most promising way to effective mental health care.

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