Challenge to Community Treatment Orders Underway

October 21, 2005 - TORONTO - Consumer-survivor Karlene Thompson and the Empowerment Council have applied to the Superior Court of Justice to strike down the expanded committal criteria and community treatment order provisions in Ontario's Mental Health Act on grounds that these provisions violate the Canadian Charter of Rights and Freedoms. 

The changes to the law were introduced by the provincial Conservative government nearly five years ago under the name Brian's Law after slain Ottawa sportscaster Brian Smith. The expanded committal criteria permit the detention in psychiatric facilities of persons who have shown clinical improvement from past psychiatric treatment for which substitute consent has been provided who would otherwise suffer mental deterioration. Before the changes, involuntary detention was restricted to cases where serious bodily harm to the person or others or serious physical impairment of the person was likely.

The community treatment order provisions permit psychiatrists to make orders requiring that patients take medications or attend at doctor's appointments while living in the community, failing which they are liable to being arrested and brought to hospital. The legislative scheme, while requiring consent, often requires patients to choose between continued detention in hospital and acceptance of psychiatric treatment in the community. The amendments in 2000 required that the government review community treatment orders in the third year following passage of the legislation (by 2003). The review, finally commissioned this year, is expected to be released in December.

The applicants in the challenge are represented by Marshall Swadron and Mercedes Perez of Swadron Associates. In Swadron's view, the expanded committal criteria and community treatment orders exemplify what is wrong with psychiatric care in Ontario. "Even the government's name for the law served to criminalize mental disorder, paving the way for the coercive delivery of potentially dangerous drugs." The Charter challenge is expected to be heard in the Superior Court of Justice in mid-2006.

The Empowerment Council, Systemic Advocates in Addictions and Mental Health, is a non-profit organization that advocates on behalf of psychiatric consumer/ survivors. The Council's mandate includes legislative reform and strategic litigation initiatives.