Alister Browne discusses Mental Health Acts in Canada.
In 2012 Luka Magnotta murdered a Chinese international student, dismembered his body, and sent parts to elementary schools and federal political parties. He had been diagnosed with paranoid schizophrenia, borderline personality disorder, and psychosis. He was charged with first-degree murder, and convicted in December 2014.
I want to use this case to explore Mental Health Acts (MHAs) in Canada. MHAs regulate the involuntary confinement of individuals suffering from mental disorders to protect them from themselves, and others from them. There are 12 different MHAs in Canada, one for each of its jurisdictions. (Nunavut and the Northwest Territories use the same Act.) I will explore these by asking what would happen to Mr. Magnotta in three scenarios under a sample of those Acts. This will enable us to see how the Canadian MHAs differ, and get a sense of their strengths and weaknesses.
Scenario 1: Mr. Magnotta is mentally ill but has not been deemed a danger to himself or others. Surprisingly, this was Mr. Magnotta’s situation. Prior to his crime he was never deemed a danger to himself or others and, thus, not confined in a mental health facility. To fall under any MHA in Canada, individuals must be both mentally ill and pose an actual or potential risk to self or others.
Scenario 2: Mr. Magnotta is mentally ill, does not now pose a danger to himself or others, but a physician thinks his condition will deteriorate to a state in which he would. If Mr. Magnotta lived in BC he could be admitted simply on the judgement of the physician. If he lived in Ontario further conditions must be satisfied. He must have been in this state before, suffered the anticipated deterioration, and been successfully treated. He must also, while capable (i.e., capable of understanding and appreciating the nature and consequences of treatment and non-treatment), have never declared that he did not want treatment in any subsequent episode, and the family must consent to the intervention. If he lived anywhere else in Canada, he could not be admitted against his will.
Scenario 3: Mr. Magnotta is mentally ill and a physician judges him to pose a risk of bodily harm to himself or others. Every MHA in Canada would allow for his involuntary admission. But what would happen to him once admitted would differ. If he were in BC, he could not refuse treatment even if he were (as the mentally ill sometimes are) capable. Decisions about treatment would be made by the Director of the facility, based on what is thought in his best interest, regardless of whether he or his family prefers something else.
By contrast, if he were admitted in Ontario and capable, he would be able to refuse any or all treatment and remain in the facility. He would be kept safe there, segregated if necessary. In Ontario some patients have been kept for years in this way. A recent court ruling has placed a six-month cap on the time one can be detained under the Mental Health Act in Ontario. If Mr. Magnotta were not capable, treatment decisions would be made by his family or other surrogate on the basis of his known or supposed preferences.
The other MHAs in Canada combine these views on treatment refusal and authorization in different ways, sometimes adding novelties of their own. This yields the 12 MHAs we have. There would be no problem with this diversity if there were nothing to choose between the MHAs. But I do not think that this is so—and judging from the debates that rage over them, nor does anyone else—and I end with three suggestions about what should go into an ideal MHA.
(1) MHAs should have a deterioration condition that allows for involuntary admission to a mental health facility when mentally ill individuals who are not now a danger to themselves or others have a significant chance of becoming so. If individuals can be quarantined when they do not have a serious infectious disease but there is a good chance they will develop it, we should be able to confine individuals suffering from mental disorders when there is similar evidence of similar risk.
(2) MHAs should allow capable patients to refuse treatment. Patients suffering from physical conditions are ethically entitled and legally permitted to do this, whatever the consequences, and there is no reason why patients suffering from mental disorders should be treated differently.
(3) Following from this, and out of respect for autonomy, MHAs should allow treatment decisions to be made by the patients themselves if capable, and by their families acting on their known or supposed preferences if not.
I do not pretend that these recommendations and reasons for them settle the issues, but I do think they are enough to put the onus of argument on those who would answer differently.
Alister Browne is a retired Philosophy Instructor, Langara College.