Jurisdiction of mental health tribunals to provide positive remedies: application, challenges, and prospects.

• Author: Zuckerberg, Joaquin
• Position: Canada

Modern mental health legislation protects the civil rights of the mentally ill by limiting the scope of permissible state interference with an individual's autonomy. It also generally sets up mental health tribunals in charge of reviewing compliance with parts of the legislation. However, the legislation does not generally address the right to adequate mental health care. The latter (or its lack thereof) has increasingly become a source of debate among scholars and policy makers. The right to adequate care is increasingly being seen as the sine qua non of the civil rights of the mentally ill. This article explores recent Canadian jurisprudence dealing with the power of administrative tribunals to address constitutional and quasi-constitutional claims, and questions whether such power could give rise to a claim for adequate health care before mental health tribunals. It argues that, subject to some limited circumstances where mental tribunals have been given certain discretion to factor adequate care into their decisions, the recent Canadian jurisprudence does not significantly modify the limited remedies available before mental health tribunals.

La legislation moderne en matiere de sante mentale protege les droits civils des personnes atteintes de maladies mentales en limitant la portee de l'ingerence etatique sur leur autonomie individuelle. Cette legislation etablit egalement des tribunaux administratifs charges de faire respecter certains de ses propres elements statuaires. Toutefois, la legislation ne traite generalement pas du droit d'acces a des services de sante mentale adequat. Ce droit (ou plutot, son omission) est progressivement devenu une source de debat parmi les universitaires et les acteurs gouvernementaux. Le droit a des soins adequats est de plus en plus percu comme etant la condition sine qua non des droits civils des personnes atteintes de maladies mentales. Cet article examine la jurisprudence canadienne portant sur le pouvoir des tribunaux administratifs a statuer sur les revendications constitutionnelles et quasi constitutionnelles, et s'interroge plus particulierement a savoir si un tel pouvoir pourrait mener a une revendication devant les tribunaux administratifs en matiere d'acces aux soins de sante mentale. L'auteur maintient que, a l'exception de certaines circonstances ou les tribunaux ont pu se prevaloir de leur discretion pour prendre en compte l'acces aux soins dans le contexte de leurs decisions, la jurisprudence canadienne ne modifie pas de maniere significative les recours limites devant les tribunaux de sante mentale.

Introduction I. The Canadian Charter of Rights and Freedoms II. Jurisdiction of Mental Health Tribunals to Assess the Constitutional Validity of Legislation A. Did Jane Patient Apply Only to the Challenged Community Treatment Order Provisions? III. Remedial Power under Section 24(1) of the Charter A. Legislative Intent to Exclude Charter Jurisdiction B. A Tribunal's Jurisdiction over Remedies C. Charter Jurisdiction Does Not Allow Tribunals to Grant New Remedies IV. The Application of Human Rights Codes V. Potential Claims before Mental Health Tribunals to Advance Rights to Adequate Care A. Ordering, Recommending, or Reviewing Treatment and the Surrounding Conditions B. Lack of Community Accommodation Leading to Involuntary Admission C. Transferring Patients Conclusion Introduction

Most modern mental health legislation provides for some sort of review body to oversee decisions to admit persons involuntarily into psychiatric facilities, to review findings of incapacity to consent to medical treatment, and/or to issue community treatment orders (CTO). This review body often takes the shape of an independent mental health tribunal (MHT) (1) charged with the role of ensuring that an individual's autonomy is only limited according to the substantive and procedural requirements established by law.

This article questions whether these tribunals have or should have a wider role than the one traditionally assigned to them. The recent jurisprudente from the Supreme Court of Canada (SCC) regarding the jurisdiction of administrative agencies to entertain constitutional and quasi-constitutional challenges provides an interesting opportunity to review this question. What are the effects of such jurisprudence on the work of MHTs and on their use as a forum to adjudicate questions concerning the adequacy of health tare provided? This is not only an academic question bur also a question of access to justice, as MHTs are invariably the only adjudicative body, in terms of monitoring compliance with mental health legislation, to which the mentally ill have access.

This article begins by providing a brief overview of constitutional jurisprudence in the context of Canadian mental health legislation, which has been limited to litigation over the boundaries of legitimate state action and has not addressed the right to adequate care. It then turns to the recent SCC decisions that address the authority of administrative agencies to deal with constitutional and quasi-constitutional claims.

Part V introduces the debate surrounding the right to adequate health care in the context of mental health legislation. It then considers a number of potential constitutional and quasi-constitutional claims to adequate health care that could be made before MHTs and highlights some of the legal barriers these claims face. It concludes that, subject to some limited circumstances where tribunals have been given limited discretion to factor adequate care into their decisions, the recent Canadian jurisprudence will not significantly affect the limited jurisdiction of MHTs.

1. The Canadian Charter of Rights and Freedoms

   The Canadian Charter of Rights and Freedoms, (2) part of Canada's Constitution, came into force in 1982. The text outlines political and civil rights that apply to the actions of all levels of government. Canadian courts have the power to strike down legislation that conflicts with Charter rights. In terms of mental health legislation, the most pertinent sections are: section 7 ("the right to life, liberty and security of the person"), section 9 ("the right not to be arbitrarily detained or imprisoned"), section 10 (the right, upon arrest or detention, to legal counsel and to habeas corpus recourse), section 12 (the right not to be subjected to cruel and unusual punishment), and section 15 (the right to equality). These rights are generally subject to the limitations clause (section 1), which allows governments to justify certain infringements of rights.

   A number of provincial mental health laws have been challenged on the basis of constitutional incompatibility. This litigation has only dealt with alleged breaches of negative rights. Early on, the courts upheld the constitutionality of Ontario's mental health legislation. (3) The administration of treatment without the patient's consent and against his or her will, for instance, was found not to violate section 7 of the Charter because the framework erected under the mental health legislation was in accordance with the principles of fundamental justice. (4) Nor was an MHT's admission and reliance on hearsay evidence considered to violate the Charter. (5)

   The courts, however, struck down legislative provisions dealing with involuntary committal in Manitoba because the provisions did not narrowly define those persons with respect to whom they could be properly invoked and did not specifically prescribe the conditions under which a person could be detained. (6) The amended legislation, which included a test for involuntary admissions that listed "dangerousness" as a criterion, (7) was subsequently upheld by the court. (8) Dangerousness, however, is not the only permissible criterion for involuntary committal. Courts have held that the criterion of protection of the patient or others, for instance, involves the notion of harm and is thus not so vague as to constitute a breach of section 7 of the Charter. (9)

   More recently, courts have held that the test for determining a patient's capacity to consent to treatment under Ontario mental health legislation is not unconstitutionally vague, (10) and that the legislation does not infringe the Charter by permitting the administration of treatment to be forced on involuntary incapable persons (11) and the civil committal of certain sexual offenders at the end of their sentences. (12)

   The Charter has also been invoked in the context of advance directives. In this regard, provisions of Ontario's Mental Health Act that permitted the province's mental health tribunal to override the competent wishes of incapable patients and the decisions of their substitute decision makers, without providing recourse to a hearing to determine why the patient's wishes should not be honoured, were found to violate the right to security of the person under section 7 of the Charter. (13)

   Finally, the judiciary has, in the context of Charter challenges, commented on the scope of patients' right not to incriminate themselves (14) and their right to be informed of their right to counsel. (15)

2. Jurisdiction of Mental Health Tribunals to Assess the Constitutional Validity of Legislation

   The power to assess the constitutionality of legislation derives from section 52 of the Constitution Act, 1982. (16) In the past, administrative tribunals that had jurisdiction--whether express or implied--to decide questions of law arising under a legislative provision were presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. In Cooper v. Canada, however, the SCC suggested that it would not be easy to make a finding of implied jurisdiction. (17) This, in effect, created a presumption of lack of jurisdiction to consider the constitutionality of legislation for those boards that lacked express jurisdiction, including most, if not all, MHTs in Canada.

   The SCC reversed this approach in Nova...