Fact or fashion? Alberta adopts the community treatment order.

• Author: Carver, Peter

A decade ago I wrote an article titled "A New Direction in Mental Health Law." (1) The article focused on "Brian's Law," the emotive name given by Ontario's then Conservative government to a major revision of that province's mental health laws. The thrust of Brian's Law was to expand the bases for intervening in the lives of persons with mental illness, including through broadening the criteria for involuntary hospitalization. The particular issue addressed in the article, however, was the introduction into Canadian law of the "community treatment order" (CTO). While forms of CTO had become common among American states (known there as "outpatient committal"), Brian's Law represented an innovation in Canadian mental health law and services.

Ten years later, Alberta has introduced the CTO into its legislation. It is the fifth province to do so. (2) What was an innovation just a few years ago now has a track record in several Canadian jurisdictions, as well as in other countries. What may seem surprising is that despite this widespread development, no consensus has emerged concerning how the CTO should be employed, nor whether it serves its intended purposes of maintaining individuals in the community and reducing involuntary admissions to psychiatric hospital facilities. In short, we have no ready answer to the question of whether in adopting the CTO Alberta has joined the vanguard in mental health legislation, or is merely the most recent victim of fashion.

Various criticisms have been made about the CTO mechanism over the years. This brief comment addresses three such criticisms in the context of the specific CTO model adopted by Alberta:

1. CTOs are not effective for those persons for whom they are most intended--individuals who are non-compliant with treatment plans while living in the community.

2. The legislative obligations imposed on physicians and other service providers deter them from making use of the CTO mechanism.

3. CTOs serve more as an alternative to living freely in the community than as an alternative to involuntary hospitalization.

   The first two points go to the efficacy of CTOs. The third goes to the balancing of potential benefits of the CTO with its impact on civil liberties of persons with mental illness.

   Overview of the Community Treatment Order

   The concept of the CTO is deceptively simple. It authorizes physicians to place a person under a legal order to follow a prescribed treatment plan, including the taking of medication, while living in the community. Previous to introduction of CTO provisions, Alberta's law authorized treatment orders only for involuntary ("formal") patients in psychiatric hospital facilities. Like the other CTO jurisdictions, Alberta had to address the issue of how to map the CTO onto existing hospital-based mental health legislation. The central features of this legislation are the rules governing consent to treatment and the criteria for involuntary committal.

   Alberta's CTO provisions track the province's position on consent to psychiatric treatment, with one exception. In Alberta, the refusal of treatment by a competent formal patient or by a substitute decision-maker for a formal patient may be overridden by order of a Review Panel under section 29 of the Act. This is unlike the situations in Ontario, which does not permit the overriding of competent refusals of treatment, or Saskatchewan, which does not permit involuntary hospitalization of treatment competent individuals. In Alberta, a CTO can be imposed over the objections of a competent patient. However, while hospitalized patients are subject to an override only by order of the Review Panel, the imposition of a CTO can occur on the basis of medical opinion alone. (3)

   The committal criteria for CTOs in Alberta have both a qualitative and a quantitative aspect. (4) The qualitative aspect of committal criteria are the substantive criteria going to the individual's current mental condition. As with the other jurisdictions, Alberta has set the CTO criteria at the same level as the criteria for involuntary hospitalization:

   two physicians, after separate examinations of the person by each of them within the immediately preceding 72 hours, are both of the opinion that the person is likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment if the person does not receive continuing treatment or care while living in the community. (5) All jurisdictions provide that once a person has been made subject to a CTO, they can be committed to a further CTO without the need for further or intervening hospital admissions.

   Alberta has adopted a novel measure that arguably weakens the link between previous hospitalizations and CTOs. Section 9.1(l)(b)(iii) of the Act provides for issuance of a CTO where

   in the opinion of the 2 physicians, 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...