In Matters of Life and Death: Public Health Issues in Canada, health journalist André Picard of the Globe and Mail covers Canada's medical assistance in dying law, First Nations medical care, the legalization of marijuana, and more in a series of essays. Picard examines the high rate of mental illness among incarcerated Canadians in this excerpt.
If they are sick, why do we jail the mentally ill?
Imagine for a moment that one of the symptoms of breast cancer was an uncontrollable desire to scream obscenities and utter death threats to passersby, or that people with heart diseases were prone to masturbating in public, or that those with arthritis had a compulsion to shoplift. What would we do? Build new women’s prisons to ensure breast-cancer sufferers were punished for their transgressions? Construct new sex-offender wings to make room for the legions of people with cardiovascular disease? Jail every arthritic kleptomaniac until they smartened up? Of course, we would never dream of filling jails with people who are already suffering from debilitating but treatable illnesses. Yet that is precisely what we are doing with far too many individuals suffering from mental illnesses including schizophrenia, bipolar disorder, and addiction.
Canada has 25,000 criminal offenders incarcerated in provincial and territorial jails and another 15,000 in federal penitentiaries, not to mention another 100,000 under supervision like parole. Of those sentenced to a federal penitentiary (meaning sentences of two years or more), one in four has a diagnosed mental illness, and 80 per cent have a serious substance-abuse problem. Federal penitentiaries and provincial jails (as well as our streets) have become de facto mental institutions.
While people with psychiatric conditions can commit criminal acts — as anyone can — many offenders are not responsible for their acts, so they don’t belong in prison in the first place. And virtually none of the convicts, whether deserving of prison or not, are getting the treatment they need. In custody, people suffering from mental illness are easy targets; they are vulnerable and exploited. The very behaviours that get people with mental illnesses into trouble in the first place — being loud and belligerent, refusing orders, committing antisocial acts, self-mutilating — make them disciplinary problems. They are sent to solitary confinement, which can exacerbate their symptoms. When they are released, without counselling or assistance, they are virtually doomed to re-offend; thus they are trapped in a vicious cycle.
During his tenure as correctional investigator of Canada from 2004 to 2016, Howard Sapers noted repeatedly that care for the mentally ill in prisons is abysmal. Their rights are routinely violated and dignity denied. There is no question the warehousing of the mentally ill in prisons has to end. But for that to happen, we have to address why they end up there in the first place. In modern, progressive Canada, the tool we employ for dealing with the mentally ill is too often the Criminal Code rather than the Mental Health Act.
For almost three decades, provinces have had policies of deinstitutionalization, vowing to liberate the many lifelong patients of institutions for the mentally ill. In the early 1970s, Canada had almost 50,000 psychiatric beds. Today, there is less than one-tenth of that number. Deinstitutionalization was — and remains — a laudable approach. But implicit in the deal was that care must be provided in the community. Too often, that did not happen. Psychiatric patients were not released into community care, they were just released. This has created an underclass of homeless and semi-homeless “crazy” people who have become fixtures on our streets, and in our jails.
Contrary to stereotypes, most people with mental illness are not violent (except perhaps to themselves). They are 11 times more likely to be victims of violence than perpetrators of violence. For the most part, they are being swept up in the criminal justice system for crimes including public urination, disturbing the peace, vandalism, and drunken fights.
You can’t blame police. They are armed with guns, batons, handcuffs, and the Criminal Code. There is a bit of folk wisdom that holds, “Give a man a hammer and everything becomes a nail.” Instead, ideally, police should try to “de-escalate” situations with words rather than brute force. Talk. Wait. Talk some more. But that’s not how they are trained or equipped. Invariably, when confronted with people who are unruly, addicted, or psychotic, the batons come out; so do the pepper spray, the Taser, and sometimes the service weapon. When we invest in weaponry instead of care, tragedy ensues.
Judges, too, have limited options. Some attempts are made at diversion, such as the mental health courts, and judges have the power to order psychiatric evaluations. But with so little assessment capacity and so few beds available, people languish for months in prison waiting for the powers that be to determine whether they should be in the prison system. Courts have already ruled that this practice is illegal and unconstitutional, but it persists.
We don’t need a return of Dickensian mental institutions to hide away the “crazies.” We need a commitment to integration, to making people with psychiatric illnesses full citizens, with all the rights of citizenship. Deinstitutionalization should not be synonymous with criminalization. We cannot accept that people should be punished for being ill — and mental illness is no exception.
The ‘freedom’ to be sick and the right to be well
Can we, in a democratic society, justify incarcerating people who have committed no crime? Is forcing sick people to take medication against their will legal and constitutional? The answer to those questions is yes, according to a 2016 ruling by the Court of Appeal of Ontario, which rejected a legal challenge to what is commonly known as Brian’s Law. The court upheld provisions of the Ontario Mental Health Act, which allows for people suffering from severe mental illness to be committed to psychiatric institutions for treatment, and the Health Care Consent Act, which allows for community treatment orders (CTOs) that mandate continuing treatment, usually involving medication. The decision — which is being appealed to the Supreme Court — has potentially far-reaching ramifications because most jurisdictions have some form of committal on their books, and five provinces use CTOs.
A little background is needed to situate the debate. In 1995, Ottawa sportscaster Brian Smith was shot to death by Jeffrey Arenburg, an untreated schizophrenia sufferer who heard voices and felt that killing a broadcaster would silence them. An inquest concluded that Arenburg should have been in hospital, but the law was too weak. In 2000, Ontario adopted the new Brian’s Law which beefed up the law.
The Empowerment Council Systemic Advocates in Additions and Mental Health, a group of self-described “psychiatric survivors,” challenged the law. The applicant in the case was Karlene Thompson, a 59-year-old former teacher who was diagnosed with schizophrenia in 1973 and was hospitalized at least 13 times up to 2000. She was hospitalized again after she was found living in a squalid rooming house where she collected her feces and urine in plastic bags. Thompson was released on a CTO that obliged her to take anti-psychotic drugs. She did until 2003, after which she became delusional and deteriorated physically. Then the legal battle began. (Thompson eventually moved back to her native Jamaica to avoid treatment, but the case proceeded.)
Such cases are complex, but in essence, the key issue was the purpose of the legislation: Is it intended to bolster public safety or to improve the treatment of patients who are seriously mentally ill? In upholding a ruling by Justice Edward Belobaba of the Ontario Supreme Court, the appeals court agreed that the law is clearly designed to help people and not punish them.
Parents and caregivers of people with severe mental illness have long been frustrated by civil libertarians who argue that individual rights — including the right to refuse treatment — are paramount. That’s because those with severe mental illness often have a symptom called anosognosia — a lack of awareness that they are actually sick. Treatment is “forced” on them because they don’t have the capacity to make a rational decision. That is not cruel and unusual punishment. On the contrary, it is humane and compassionate. Involuntary committal to a psychiatric institution is a last resort; it is also a rarity, usually reserved for those who commit serious acts of violence and are judged not criminally responsible. For the most part, people with severe mental illness who refuse treatment and who become a risk to themselves and others as a result end up with CTOs. And it should be noted that physicians or family members cannot impose these conditions on a whim; an elaborate legal process needs to be followed, with appeal processes up to and including the Consent and Capacity Board.
Between 2000 and 2010 in Ontario, the number of CTOs issued annually ranged from 656 to 1,093. The mandatory treatment lasts, on average, 1.9 years. But most CTOs are renewed because those affected tend to be the sickest of the sick. Community treatment orders are far from perfect, and this has been well documented. But, if anything, they are underused. Too many sick people are still caught in a revolving door between treatment and illness. We resist because the notion of treating people against their will (even if they are irrational) sticks in our craw. Currently, about 5,000 people in Ontario are under mandatory treatment, most of them living in the community.
In addition, drugs used to treat those with severe mental illness, especially anti-psychotics, are far from perfect. They can cause massive weight gain and increase the risk of diabetes and heart disease. But again, it’s a balancing of risks. Harming the heart is an unfortunate but fair trade-off if it prevents a person from wallowing daily in his own feces, harming others, or killing himself. And the imperfection of drugs does not invalidate the law or undermine its purpose.
Without proper treatment, people with severe mental illness live dismal lives, usually on the streets or in prison. They die deaths by a thousand cuts, deaths by a thousand pills, deaths by a thousand missed opportunities for care. The most urgent questions people have when their loved ones are in the clutches of a devastating illness like schizophrenia is, “How do I get them help?” CTOs are a necessary tool when the situation becomes desperate.
Of course, when the state behaves in a coercive fashion against an individual, we should be concerned, and doubly so when that power is enshrined in legislation. But the interventions allowed under Brian’s Law are justified and necessary; they meet the test of reasonable limits to the freedoms guaranteed in the Charter of Rights and Freedoms. But those are technical legal matters. The Ontario court ruling is important, above all, because it reminds us that individual autonomy needs to be balanced against the right to be well. The “freedom” to be sick is a false freedom.
Excerpt from Matters of Life and Death: Public Health Issues in Canada, by André Picard, © 2017. Published by Douglas & McIntyre. Reprinted with permission of the publisher.
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