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Dying With Their Rights Intact

Even though people suffer from a disease of the brain that impairs their rational thinking, most jurisdictions in North America have stringent legislation that makes it difficult to impose treatment. And, because society allows them to refuse treatment, some die. But, their civil liberties remain intact. Or do they?

That was and still may be a phrase used by psychiatrists in Ontario to refer to the concept that those with serious untreated mental illness have the right to refuse treatment. Even though they suffer from a disease of the brain that impairs their rational thinking, most jurisdictions in North America have stringent legislation that makes it difficult to impose treatment. Without treatment, they often end up homeless, in jail, living on the streets, and harm themselves and/or others. And, because society allows them to refuse treatment, some die. But, their civil liberties remain intact. Or do they?

The B.C. author and advocate, Herschel Hardin, calls this "uncivil liberties." "Far from respecting civil liberties, legal obstacles to treating the mentally ill limit or destroy the liberty of the person." He originally wrote that in the Vancouver Sun in July of 1993 and it is still true today. And Hardin is no stranger to the concepts of civil liberty. He was a member of the board of directors of the B.C. Civil Liberties Association from 1965 to 1974, and has also been involved in the defence of liberty and free speech through work with Amnesty International. One of his children, however, has schizophrenia so he also knows first hand the problems of this horrible disease.

Left untreated, the disease will impair rational thinking and subject the individual to voices, delusions, and paranoia. They become, as Hardin said, "prisoners of their illness."

The civil libertarians often cite John Stuart Mill's On Liberty. That philosopher said that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant." When Mill wrote that, however, there were very few effective medical treatments for anything let alone mental illness.

What the civil libertarians ignore, however, is the very next paragraph in which Mill states "those who are still in a state to require being taken care of by others must be protected against their own actions as well as against personal injury." (See Canadian Journal of Psychiatry article by Dr. Richard O'Reilly)

And that taking care of and being protected is what happens in some European countries. In Norway, for example, there are no homeless mentally ill people according to Dr. Thomas McGlashan of Yale University. In 2005, he told theLA Times that homelessness is banned. A mentally ill person would be connected with an outpatient clinic and be assigned to a regular doctor and a nurse. The LA Times writes, "Another key difference, the professor added, is a Norwegian philosophy that favours involuntary treatment rather than protecting the civil rights of patients who aren't well enough to know how sick they are."

One of the criteria for involuntary hospitalization in Norway is that the possibility of a cure or considerable improvement will be lost without treatment (P16). In the Netherlands, there are three interesting criteria -- that the person will become socially isolated, that he or she will neglect themselves, or that they will illicit aggressive responses from others (See page nine in the document that can be downloaded).

In the UK, one of the criteria for detention is that appropriate medical treatment be available, and it is for schizophrenia and other serious mental illnesses (See page two). In the three countries mentioned, sufficient safeguards do exist to protect the rights of the ill individual.

One method of assuring that people with serious mental illness receive the treatment they need is a non-hospitalized strategy called assisted outpatient treatment, or community treatment orders. This strategy allows courts to order certain individuals with brain disorders like schizophrenia or bipolar disorder to comply with treatment while living in the community. In New York State, it is called Kendra's Law and its results have been well researched. In a series of studies, it was found that this strategy increased adherence to medication use, reduced arrests of mentally ill people, and reduced hospitalizations, as well as less homelessness and fewer victimizations

While many Canadian jurisdictions do have some form of these orders, they are not used enough and the criteria for involuntary treatment are still too stringent compared to the countries cited above. The Select Committee on Mental Health and Addictions in Ontario did recommend that the guidelines for involuntary treatment be studied by another committee but that has not happened yet.

The Mental Health Commission of Canada is focusing their attention on evaluating the human rights of those with mental illness and on principals of social inclusion. They avoid talking about involuntary treatment. On page 10 of the commission's draft mental health strategy for Canada which they refuse to share broadly (see my previous Huffington Post blog), they talk about the UN Convention on the Rights of Persons With Disabilities.

They see the UN Declaration as an example of a social model of disability. This means in their words that disability is not an internal condition but rather something that arises from the way that external environments interact with people. However, serious mental illness is also internal. It is a disease of the brain and it needs to be treated.

When Canada signed this document, it did so by stating:

Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law.

The Canadian government went on to say:

To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal.

What our government said, in fact, is that there are circumstances when the state does need to ensure people receive the treatment that they need and that there are existing safeguards. Unless an individual is well, not delusional, not paranoid, not hearing voices, all the legislation on social inclusion will have no impact on that individual. We can best ensure the rights of these ill people by ensuring that they receive the treatment that they need.

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