Mental health law reform for a new government in New Brunswick.

AuthorCulbert, Timothy T.
  1. Introduction

    In February 2009, after almost a year of consultations with experts on mental health care, service providers, and people suffering from a range of mental illnesses, Judge Michael McKee released his report entitled Together into the Future: A Transformed Mental Health System for New Brunswick. This report contained over 80 recommendations to the provincial government for reforming the mental health care system including: strengthening community networks, reducing the stigma associated with mental illness and investing in early intervention through the education system) This follows a trend in Canadian provinces of reforming mental health policies. (2) While this report was a positive step for the reform of New Brunswick's mental health care system, it was never acted upon. (3)

    The then-Minister of Health for New Brunswick, Mary Schryer, did respond to the report in writing in September 2009, but expert reactions to this response were mostly critical. (4) Following Schryer's response, the provincial government left the McKee Report on the shelf. In October 2010, a new government was elected in New Brunswick under the Progressive Conservative leadership of Premier David Alward. The Minister of Justice for this new government, Marie-Claude Blais, stated that she intends to review the McKee Report and move forward with some of its recommendations. (5)

    Why is the reform of mental health laws in New Brunswick so important? One only needs to mention the name "Ashley Smith" and the answer to this question comes into sharp focus. Our mental health laws have let us down: they stigmatize the mentally ill, they criminalize the mentally ill, and they tend to paint all people suffering from mental illness with the same brush. While it is beyond the scope of this paper to delve further into Ashley Smith's story, one cannot properly analyze mental health laws in New Brunswick without mentioning this terrible tragedy. (6)

    The purpose of this paper is to analyze the current status of New Brunswick's mental health care system against this backdrop and to provide ideas for reform. These suggestions for reform focus primarily on mental health legislation. They underscore the fact that legislation plays a key role in mental health care. This point has been forgotten in the various government reports to date. Thus, in this paper I argue that the fact that the new Minister of Justice (as opposed to the new Minister of Health) is considering this report is significant. This paper uses the theory of therapeutic jurisprudence as a lens through which to analyze the current status of mental health laws in New Brunswick.

    Section II defines the concepts of "mental health law" and "therapeutic jurisprudence" and then briefly describes some of the key issues discussed by mental health law academics. Because mental health law is a vast domain, many topics such as criminal responsibility, discrimination in the workplace, and adult guardianship legislation, for example, will remain untouched.

    Section III provides a cursory overview of mental health legislation in Canada. It emphasizes the coercive nature of mental health laws in Canada. The New Brunswick Mental Health Act is used as an example in this section, even though I recognize there are differences among provincial mental health laws. While my understanding of Canadian mental health laws aligns somewhat with Kaiser, I have significant criticisms of his approach to mental health law reform. Indeed, Kaiser's dislike of the "medical model" is overstated. Therefore, while his research and analysis of Canadian mental health laws is exceptional, I argue that there are times when the medical treatment of people with mental illness is the only alternative. Thus, I am more aptly a proponent of Gray et al.'s "human needs perspective." (7)

    Section IV evaluates the McKee Report and submits that one of the key shortcomings of this report is its failure to include legislative reform within its list of recommendations. This section concludes by providing suggestions for legislative reforms that will enhance mental health laws in the province of New Brunswick and lead to stronger protection of the rights of the mentally ill.

    I conclude that if we are to properly reform the mental health care system in New Brunswick, the government should review and revise the Mental Health Act and move it away from its current "coercive nature" by incorporating positive rights in order to empower individuals suffering from mental illness. However, I do not suggest that in order to reform the mental health system we must completely move mental health legislation away from the medical model. Instead, I argue that there is a place for the medical model in treating individuals with serious mental illnesses, but this model must be balanced with legislative change, more efficient community-based treatment and programs that utilize the government's administrative tools to promote mental health awareness.

  2. Understanding Mental Health Law

    (A) Definition of "Mental Health Law"

    One of the greatest challenges faced in analyzing mental health law is defining the terms. Indeed, attempting to find a standard definition of "mental health law" is challenging. Bartland and Sandland state that "mental health law and policy is, by its very definition, an interdisciplinary study. It is not an area where law should be considered independently, divorced from the realities of clinical practice or life for the client in the community." (8) The legal and medical communities in New Brunswick are thus left to try to create a tenable definition of "mental health law" by piecing together various definitions concerning "mental illness," "disability" and examining how these areas interact with the law. Black's Law Dictionary defines "mental illness" as follows:

  3. A disorder in thought or mood so substantial that it impairs judgment, behavior, perceptions of reality, or the ability to cope with the ordinary demands of life. 2. Mental disease that is severe enough to necessitate care and treatment for the afflicted person's own welfare or the welfare of others in the community. (9)

    Barron's Canadian Law Dictionary defines "mental disorder" as:

    A disease of the mind or mental illness; used as a defence to criminal charges ... disease of the mind is broadly interpreted. It embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. (10) These definitions reflect a common theme in mental health law literature: that "mental health law" is often defined with reference to an individual's functioning vis-a-vis the community. This theme assumes that a mentally ill individual is or will become a threat to him or herself or others in the community. Thus, laws that deal with mental illness in Canada refer to "worst-case" scenarios or emergency situations, leaving a large demographic of individuals with mental illness without the protection of or protection from legislation.

    Kaiser provides an instructive definition of "mental disability law":

    "Mental disability law" is not used here with the same precision as "contracts" or "torts." Instead, it is an umbrella term which embraces any impairment that affects a person's emotional or cognitive functions, with a focus upon the legal dimensions of disability. One then looks for the ways in which the disability attracts the attention of the law and, in particular, one strives to see the precise legal effects of disability on an individual's existence as a citizen and member of society. (11) It is important to recognize that three unique definitions of mental diseases are presented above: it is first defined as "mental illness;" it is next defined as "mental disorder;" and finally, it is referred to as a "mental disability." The varying definitions of mental diseases reflects different authors' views on exactly what is a mental disease. On the one hand, proponents of the "medical model" of mental health law view mental disease as an "illness" comparable to physical illness, which requires medical treatment (by therapy or medications) to mitigate the consequences of the illness. On the other hand, critics of the medical model argue that defining mental disability as an "illness" allows medical professionals to label individuals. One clinical psychologist makes the following observations:

    Labels are depersonalising and strip people of their individuality by making assumptions without getting to know the person. The use of labels by mental health professionals could be viewed as defensive, as a means of distancing oneself from the service user by treating them as different by virtue of the label. (12) The section below on mental health laws in Canada further examines the academic debates surrounding mental health law and terminology. One should note that this area is highly politicized and wording must be approached with care.

    Gray et al. state, "the term 'mental health law' covers three types of legislation: the 13 Mental Health Acts, the Criminal Code of Canada mental disorder sections and provincial/territorial consent to treatment, adult guardianship and adult protection legislation." (13) This paper primarily uses the first of these definitions, reviews legislative reforms to mental health acts proposed by various academics across Canada, and applies these suggestions for reform to the New Brunswick context.

    (B) Definition of "Therapeutic Jurisprudence"

    In the early 1990s Wexler and Winick became aware that "mental health law" as an area of academic study had "lost its driving force and much of its lustre." (14) Mental health law, according to these authors, was born out of the civil rights movement in the US and was buttressed by a concern for the constitutional rights of patients suffering from mental illnesses...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT