Civil Commitment: A Cross Canada Checkup

• Author: Daniel L. Ambrosini and Lucie Joncas
• Pages: 1029-1061

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CHAPTER 48

Civil Commitment:

A Cross Canada Checkup

Daniel L. Ambrosini and Lucie Joncas

I. INTRODUCTION

Over the past thirty-ve years there have been many changes to civil commitment legislation across Can-

ada. Many of the reforms reect an attempt to balance the civil rights of individuals through stronger

procedural safeguards, with the need to provide eective and timely medical care. Although psychiatric

hospitals have evolved dramatically over the past one hundred years — from asylums, to detention cen-

ters, to treatment centers, to research institutes — there is an ongoing need to ensure that mental health

legislation reects societal standards. e civil liberties movement that emerged in the United States

during the 1970s has also had an eect on civil commitment legislation across Canada. e aim of this

chapter is to provide a comparative analysis of civil commitment legislation across Canadian provinces

and territories.

Civil commitment is a legal process whereby individuals with a mental illness can be temporarily

committed to a designated psychiatric facility where they receive medical treatment, care, or supervision.

Individuals can be committed through a voluntary or an involuntary process (Winick, 2005). Although

we are primarily concerned with involuntary commitment here, it is important to appreciate that many

individuals voluntarily admit themselves to hospitals at the encouragement of physicians, family, and

friends (Gray et al., 2008; Winick, 2005). While coercion may be less visible through the voluntary rather

than involuntary process, it can still ex ist in subtle forms. For many years, voluntary hospitalization was

not permitted partly due to the fear that if individuals could voluntarily commit themselves into a hos-

pital, they could leave whenever they wanted and this may interfere with planned treatment programs

(Appelbaum et al., 2007). ere was also a myth, one which may still exist today, that individuals diag-

nosed with a mental illness are presumptively incompetent to consent to hospitalization (Appelbaum et

al., 2007). However, receiving a diagnosis of a mental illness should not automatically be equated with

the inability to make capable and autonomous choices.

Some individuals have described their experience of being committed to a hospital as anything but

civil. Although short- and long-term stays in hospitals are oen necessary for an individual’s best in-

terests, hospital detention over a long period of time can aect one’s perception of autonomy. In the

same way that forcing medical treatment can lead to perceptions that one’s bodily integrity is being

threatened, civil commitment can lead to feelings of being unduly detained and isolated from the greater

community. Outpatient commitment oers a greater degree of freedom than civil commitment in that

individuals can live in the community contingent on following their prescribed treatment. Outpatient

commitment (OPC) is a term commonly associated with United States legislation whereby individuals

are mandated to follow certain treatments while living in the community. Some Canadian provinces

have incorporated a similar intervention known as a community treatment order (CTO) in their mental

health legislation.

Deinstitutionalization policies have also led to an increasing number of individuals receiving mental

health care in the community. As a result, mental health legislation across several countries has been

Daniel L. Ambrosini and Lucie Joncas

reformed to include community treatment rather than only hospital care (Anfang & Appelbaum, 2006).

Whereas individuals with mental illness were most oen hospitalized and treated solely on the basis of

whether they had suered a mental illness and were in need of treatment, it is now possible under mental

health legislation to re-commit someone to a hospital for failing to follow their prescribed medication.

Following due process is essential to ensure that individuals’ rights will be respected in civil com-

mitment procedures. Civil commitment procedures can be evaluated at three critical times: (1) during

the initial assessment and admission process; (2) while the individual is within t he hospital as a short

or long-term patient; or, (3) during discharge and follow-up in the community. Procedural law can help

ensure that eective and ethical treatment will be provided. As Chief Justice McLachlan of the Supreme

Court of Canada has stated, however, “[l]aws cannot heal people; only medical professionals who pro-

vide services and treatment do that” (McLachlin, 2005). Indeed, while laws are intended to ensure that

procedural safeguards protect patients’ rights, they must also be exible enough to change with societal

values.

As a result of the division of powers doctrine in Canada, mental health falls within t he competence of

provincial and territorial jurisdiction (see references for full list of provincial and territorial legislation).

According to section 92(7) of the Constitution Act, 1867, provinces and territories have exclusive jurisdic-

tion to legislate on “the establishment, maintenance, and management of hospitals, asylums, charities,

and eleemosynary institutions in and for the province, other than marine hospitals.” Because of this

provincial/federal divide, oering a national perspective of civil commitment legislation is not always

straightforward. Nevertheless, comparing how legislative provisions are applied across jurisdictions can

help reveal gaps or trends that need to be addressed. Furthermore, although provincial mental health

legislation and federal legislation such as the Criminal Code are intended to be theoretically non-over-

lapping, some provinces have enacted legislation that has blurred these boundaries (see for example the

Mental Health Act(s) of B.C. (ss. 30, 31), Alberta (s. 13), Manitoba (ss. 24–25), and Ontario (ss. 21–23) and

the Mental Health Services Act of Saskatchewan (s. 22)).

A. Laws of Exception

Before examining mental health legislation, it is important to appreciate that these are all laws of excep-

tion that need to be interpreted restrictively. Although an individual’s rights can be overridden in the

interests of necessary medical treatment under certain situations, such as when someone is a danger or

threat to others, civil commitment is a process that presumptively interferes with an individual’s con-

stitutional rights. As Winick states, “[c]ivil commitment is basically inconsistent with our legal system’s

strong commitment to principles of individual autonomy and self-determination” (Winick, 2005).

e application of the least restrictive principle during civil commitment is not new. Anand stated

more than thirty years ago, “[i]t is important to realize at the outset that civil commitment represents the

most signicant deprivation of liberty without judicial process that is sanctioned by our society today”

(Anand, 1979). Consequently, involuntary civil commitment should always be used as a last resort, such

as if patients decline voluntary commitment but pose a substantial risk of harm to oneself or others (Ap-

pelbaum & Rumpf, 1998 where the authors note that some decisions to commit individuals to a hospital

are clear whereas others will be more dicult, such as with individuals who suer from anorexia ner-

vosa where it appears that harm to oneself is not imminent which may not be the case).

Just as lawyers who meet clients must presume that mental competence is intact, individuals who

present themselves at a hospital should be presumed able to make free and informed decisions. Of course,

a psychiatric assessment may quickly reveal that the individual’s mental capacity to make decisions is

impaired or diminished. Despite lacking the capacity to make independent decisions, an individual does

Civil Commitment: A Cross Canada Checkup 

not necessarily lose her full autonomy. Civil commitment should be considered a temporary process

with the long-term goal of assisting patients to return to an autonomous life in the community.

Equally important is that although mental health legislation can restrict individual liberty rights,

the principles found across the legislation must still conform to the Charter of Rights and Freedom (see

Gray et al., 2008, for an overview of the Charter as it applies to mental health law). Some of these rights

include the right to counsel, the right to remain silent, to communicate with others, to receive visitors, to

object to certain forms of seclusion and restraint, to request reasonable treatment, to refuse unreasonable

treatment, to declare treatment preferences, and to access medical records. (For a Canadian perspective

describing some of these rights and safeguards see, Gray et al., 2008, at 331–387; for an American per-

spective, see Miller, 1987; Winick, 2005; Appelbaum & Guteil, 2007.) Within the context of criminal law,

section 10 of the Charter provides that everyone has a right to be informed promptly of the reason for an

arrest or detention. While hospital detention for the purpose of a psychiatric assessment under mental

health legislation does not always hold the same public goal as detention in the criminal law context,

their common thread is that they both temporarily restrict individuals’ rights (see C.B. v. Sawadsky, 2005,

where the court stated that protections under the Charter do not have the same eect for detention under

the Mental Health Act as someone detained for criminal purposes. e decision was armed in C.B. v.

Sawadsky, 2006, and application for leave to appeal dismissed in C.B. v. Sawadsky, 2006).

Most jurisdictions have incorporated into mental health legislation, as a matter of constitutional

freedom, the principle that treatment should be administered in the least restrictive or least intrusive

manner (for a discussion of the least restrictive alternative principle in the Unites States, see Slovenko,

2000). e Supreme Court of Canada has stated in the criminal law context that where an individual

poses a risk to the public, the “least onerous” and “least restrictive alternative” must be considered to

protect that person’s liberty interests (Pinet v. St. omas Psychiatric Hospital, 2004; Penetanguishene

Mental Health Centre v. Ontario (Attorney General), 2004; R. v. Demers, 2004; see also Criminal Code, s.

672.54). Applying the least restrictive principle to the mental health context means that prior to com-

mitting someone to a hospital, whether that person is dangerous or not, all other reasonable alternatives

must have been explored rst. For example, the use of diversion by problem-solving courts uses the

least restrictive principle because it aims to rst direct individuals to treatment programs or processes

that may lead to positive clinical outcomes. Table 48.1 highlights how several Mental Health Acts have

included a reference to the least restrictive principle. Some provinces and territories may wish to consider

how the principle can be made more explicit.

II. HISTORY OF CIVIL COMMITMENT IN CANADA

To appreciate the evolution of civil commitment in Canada it is necessary to contextualize the legislation

within the historical development of psychiatric hospitals. During early settlement into North America,

individuals with mental illness were primarily cared for by members of their communities (Appelbaum

& Guteil, 2007). As the burden of care for such individuals mounted, almshouses and jails were used to

conne persons, with the law oering only limited protections and rights (Burgess, 1905). Among the

rst of the British North American colonies to make special provisions for individuals with mental ill-

ness was New Brunswick where, in 1835, a small wooden building that had been a cholera hospital was

converted into an asylum (Burgess, 1905). Until then, it was possible for any two justices of the peace,

without a medical certicate, “to issue a warrant for the apprehension of a lunatic or mad person, and

cause him to be kept safely locked in some secure place directed and appointed by them, and, if they

deem it necessary, to be chained” (Burgess, 1905).

During these early years, mental health legislation did not dierentiate between individuals with

mental illness and serious criminals. Jails were substituted with hospitals, and those individuals who