Alberta's community treatment orders: Canadian and international comparisons.

• Author: Gray, John
• Position: Giving Voice 2: Advocacy & Mental Health

Introduction

Community Treatment Orders (CTOs) are designed to assist people who, because of serious mental illness, do not avail themselves voluntarily of medication, follow-up opportunities and other services for their care and treatment while living in the community and who, without treatment, become psychotic and require repeated hospitalization. CTOs are generally viewed as less restrictive of liberty and individual autonomy than the alternative of involuntary inpatient hospitalization.

CTOs have been developed relatively recently in response to the shift from hospital-based to community-based mental health service delivery (e.g. New Zealand) (1) although in some jurisdictions the tipping point for the legislative motivation to enact CTO legislation has been violent incidents involving people with untreated mental illness. Alberta, (2) Ontario (3) and New York (4) are examples. We discuss the Alberta incident and the relationship between mental illness and violent incidents in the last section of this article where we respond to criticisms of CTOs.

Alberta is the fifth and most recent province in Canada to enact CTO legislation. In formulating its provisions, Alberta (5) had the benefit of experience in Saskatchewan, (6) Ontario, (7) Nova Scotia (8) and Newfoundland and Labrador (9) as well as in a large number of international jurisdictions. (10) It also had the benefit of extensive information gained from recent scientific studies. (11)

In the next section of this article, we compare significant elements of CTOs in Alberta with those in the four other Canadian provinces that have CTOs and, internationally, in New Zealand, and some Australian, United Kingdom and United States jurisdictions. (12) We then address criticisms that have been levelled at CTOs in Alberta and give our conclusion.

Significant Elements of CTOs

This article focuses on the major substantive and procedural elements in Alberta's CTO scheme including the authority to issue a CTO, the criteria, pre-conditions, consent, treatment planning, duration, compliance, and rights and protections.

Authority to issue a CTO

CTOs are issued by physicians after examination of the person being assessed for a CTO. Alberta requires separate examination and signature by two physicians, one of whom must be a psychiatrist, within the 72 hours immediately preceding issue of the CTO. (13) In contrast Ontario requires only one physician who does not have to be a psychiatrist. (14)

CTO criteria (harm and deterioration)

In Alberta, as in other Canadian provinces and most foreign jurisdictions, the criteria for issuing a CTO builds on the criteria for involuntary inpatient hospitalization. In Alberta, in addition to suffering from mental disorder, the individual must be "likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment" (the "harm or deterioration" criterion) in the absence of intervention. The Alberta wording (which applies to both involuntary inpatient hospitalization and CTOs was previously "likely to present a danger to himself of others". (15) The new language parallels the wording in the Saskatchewan legislation (16) and is similar to changes in wording that have been made in other provinces. (17)

The rewording broadens the basis for intervention with the result that more people are now likely to qualify for a CTO than would have qualified under Alberta's previous "danger" criterion.

Pre-conditions (previous psychiatric history)

Even where a person meets the committal criteria for involuntary intervention, all jurisdictions in Canada and some jurisdictions elsewhere impose a "pre-condition" on CTOs. That is to say, a physician can only issue a CTO where the person has a previous psychiatric history. In contrast, most jurisdictions outside Canada impose no pre-conditions and do not require an inpatient history. (18)

Jurisdictions with pre-conditions differ widely on the amount of psychiatric history the person must possess. Those jurisdictions that impose restrictive previous hospitalization requirements effectively limit CTOs to assisting persons whose illness has basically become chronic and who repeatedly vacillate between community and hospital (the "revolving door" syndrome). Because the ambit of assistance is broader in jurisdictions with no previous hospitalization requirements, the CTO could help people earlier in the illness progression thus improving the prognosis. (19)

Where does Alberta sit in comparison with other provinces on hospitalization pre-conditions? Alberta requires that:

... within the immediately preceding 3-year period the person has on 2 or more occasions, or for a tolal of at least 30 days,

(A) been a formal patient in a facility,

(B) been in an approved hospital or been lawfully detained in a custodial institution where there is evidence satisfactory to the 2 physicians that, while there, the person would have met the criteria set out in section 2(a) [mental disorder] and (b) [harm or deterioration) at that time or those times, or

(C) [a combination of (A) and (B)]. (20)

In Canada, Alberta and Ontario, (21) with their almost identical provisions, have the least stringent previous hospitalization requirement. In these provinces, an individual with one hospitalization of 30 days or two admissions within the previous three years would satisfy the pre-condition. Therefore, although there is a pre-condition of hospitalization, the CTO can be issued at a relatively early stage of the illness. Other provinces have more restrictions because they use a shorter time period, two years, with Saskatchewan (22) requiring 60 days or three hospitalizations and Nova Scotia (23) 60 days or two admissions while Newfoundland and Labrador (24) specify three admissions but no time period.

Unlike any other Canadian province, Alberta recognizes hospitalization equivalencies whereby a person who has been in a facility such as a jail for the same period could qualify if they likely had a mental disorder and met the harm or deterioration criterion while in the custodial institution. (25) This should be helpful For some of the many people with mental illnesses who become involved with the criminal justice system.

In addition, unlike any other province, Alberta does not require a hospital or institutional history. A physician may issue a CTO if:

"... the person has, while living in the community, exhibited a pattern of recurrent or repetitive behaviour that indicates that the person is likely to cause harm to the person or others or to suffer substanlial mental or physical deterioration or serious physical impairment if the person does not receive continuing treatment or care while living in the community (26) Although Alberta has the most lenient CTO preconditions in Canada, the conditions are more restrictive than those in some foreign jurisdictions which ask only if the committal criteria apply. If they do, whether the person is treated in hospital or community becomes a decision based on considerations of safety, service availability, patient preference and clinical factors. (27)

Consent to CTO

Does the CTO have to be consented to? Despite being called an "order", in Alberta (with one exception), (28) Ontario (29) and Nova Scotia, (30) a CTO can be implemented only if consent to the CTO is obtained from a patient capable...