Thompson v Ontario (Attorney General)

The applicants appealed a decision affirming the constitutionality of Brian’s Law (Mental Health Legislative Reform), 2000, S.O. 2000, c. 9. (“Brian’s Law”), which was enacted by the Ontario legislature in 2000. Brian’s Law amended the Mental Health Act (“MHA”), adding provisions that expanded criteria for involuntary committal in a psychiatric hospital and introduced community treatment orders (CTOs).

Section 15(1.1) introduced “Box B” criteria, satisfaction of which which permits a person to be placed under a 72 hour restraint and examination period in a psychiatric facility where the physician has reasonable cause to believe that said person is likely to experience substantial deterioration or impairment without treatment. Several additional criteria must also be satisfied. First, the person must have previously received treatment for an ongoing or recurrent mental disorder, the nature of which could lead to the infliction of serious bodily harm on the person or another person in the absence of treatment. Second, the prior treatment must have resulted in the patient’s clinical improvement. Third, the person must be suffering from the same or similar mental disorder for which they previously received treatment. Fourth, the person must be incapable of consenting to treatment and consent of the person’s Substitute Decision Maker (“SDM”) must be acquired. Section 16 (1.1) allows a Justice of the Peace to order an assessment where the criteria corresponding to s. 15(1.1) are met. The introduction of CTOs provides a form of continuing treatment for individuals who meet the criteria for involuntary committal under s. 15(1.1), which they may receive outside a psychiatric facility. The purpose of CTOs is to reduce the rate of recidivism of patients who improve with treatment upon admission, stop treatment after their release, and relapse such that they must be involuntarily re-admitted. While the patient or their SDM must consent to a CTO, subsequent failure to comply enables a physician to order the patient’s examination by police if they have reasonable cause to believe the patient continues to suffer from a mental disorder and has taken reasonable steps to inform the patient of the potential repercussions of non-compliance. CTOs last six months but may be renewed on notice to the patient. Both involuntary committal and CTOs require structured and individualized assessment, and multiple provisions ensure that individuals receive rights information and the right to retain and instruct counsel.

The applicant, Karlene Thompson, had a history of mental illness. She had previously been involuntarily detained in a hospital and was a subject of a CTO. While Thompson’s function improved with treatment, which included neuroleptic medication, she also experienced adverse side effects. Her application was carried forward by the Empowerment Council, Systematic Advocates in Addictions and Mental Health (“Empowerment Council”), an advocacy group representing users of mental health and addiction services.

The applicants challenged the constitutionality of the Box B criteria and the CTO as forms of coercive treatment that infringed the right to life, liberty, and security of person under s. 7 of the Canadian Charter of Rights and Freedoms (“the Charter”) and were not in accordance with the principles of fundamental justice. Their primary assertion that the law’s purpose to protect the public was based on the false assumption that people with mental illnesses pose greater risks to public safety. The application judge accepted that the assumption was not supported by evidence, but held that the law’s legislative purpose was also to provide an improved treatment regime for people with mental illnesses. In light of these dual objectives, he held that the s. 7 infringements were in accordance with the principles of fundamental justice and dismissed the challenge.

On appeal, the focus of the applicants’ challenge was that forced treatment with antipsychotic/neuroleptic medication and CTOs are unjustifiable infringements of s. 7 of the Charter, which they supported with expert evidence alleging that anti-psychotic medication and CTOs are inefficacious, and even counterproductive in their side effects and undermining of patient dignity,   respectively. The applicants’ also asserted that the requirement of consent to the CTO regime is illegitimate when the only other option is involuntary committal. The applicants argued that the application judge erred in his s. 7 analysis by failing to make adequate factual findings that would settle significant disputes raised by the conflicting expert evidence, and thus misapplied the principles of fundamental justice. They also argued that he failed to adequately consider the purpose of the impugned legislation. Finally, they argued that the impugned law was also an unjustifiable infringement of ss. 9, 10, 12, and 15 of the Charter.

The Court held that the application judge made adequate findings of fact to support his conclusion that the law’s deprivation of s. 7 rights were in accordance with the principles of fundamental justice. A claim that a law is inconsistent with s. 7 must demonstrate that “(1) the law limits the person's right to life, liberty or security of the person; and (2) the limits are not in accordance with the principles of fundamental justice”. A law is not in accordance with these principles if it is arbitrary, over-broad, or grossly disproportionate. The application judge conceded that the impugned provisions limited an individual’s liberty and security if they were subject to involuntary committal or a CTO;  however, he concluded that the limitations accorded with the relevant principles of fundamental justice. The Court upheld his conclusions.

The Court held that the law is not arbitrary. A law is arbitrary where there is is no rational connection between the impugned measure’s objective and its limit on s. 7 rights, such that it is incapable of achieving its objective. Regarding involuntary committal, the Box B criteria requires that the person’s clinical condition has previously improved from treatment, they are suffering from the same mental illness, their mental or physical deterioration is likely without treatment, and they are incapable of consenting to treatment. The Court cited the application judge’s reference to evidence that applying Box B improved prospects for long-term outcomes by facilitating earlier treatment, particularly for those incapable of consenting to it. The CTO scheme also uses strict, tailored criteria to determine when it can be applied, and the application judge found that CTOs “bring stability” to many individuals. Thus, the s. 7 limitations were rationally connected to the health and safety objectives of the legislation.

The Court held that the law is not over-broad. Trained medical professionals are able to apply the specific Box B criteria on an individualized basis such that the law will not overreach in its effects and lead to the involuntary committal of persons that do not require it on the mere basis of stereotypical assumptions. Regarding CTOs, the requirement of patient or SDM consent and strict “revolving door” criteria outlined in s. 33.1(4) mean that the CTO regime can be applied in a highly tailored way only to cases where these criteria are satisfied and physicians have reasonable grounds to believe it will have a beneficial effect on health and public safety. Furthermore, the fact that CTOs are not beneficial to everyone does not imply that a subset of the s. 7 infringements are unconnected to the legislative purpose, which is required to establish over-breadth.

The Court held that Brian’s Law is not grossly disproportionate. It cited the application judge’s finding that, notwithstanding differing professional views on antipsychotic medications, the evidence showed they are able to successfully treat many patients and improve their conditions and outcomes, reducing the intensity of symptoms, risk of relapse, and risk of suicide, and increasing effectiveness of other treatments and overall stability. While many patients do not voluntarily continue treatment after being discharged and others voluntarily receive treatment, many patients do not or cannot accept that they have a mental disorder that requires treatment, such that the forced element of CTOs guarantee those individuals stay connected with mental health services. Thus, the compulsory elements of the legislative response are not grossly disproportionate to the health objectives.

The Court held that the application judge correctly characterized the law’s dual objective of public safety and the improved treatment of individuals with severe mental illness. Regarding CTOs, the Court rejected the applicants’ argument that the “improved treatment” is an invalid purpose on the ground that there is no real consent when the only alternative is involuntary committal. Coerced treatment may be an effect but is not a purpose of the legislation, and it is constitutionally valid for individuals without the capacity to make their own treatment decisions. Furthermore, a consensual CTO is a less restrictive option for individuals who meet the criteria for involuntary commitment. Therefore, the Court held that consent to a CTO is not effectively coerced and “improved treatment” was a valid legislative purpose.

The Court agreed with the application judge’s conclusion that Brian’s Law did not violate ss. 9, 10, 12 and 15 of the Charter. As involuntary committal and CTOs require structured and individualized assessments, they do not constitute arbitrary detention under s. 9. The procedures include notification of rights and other protections, preventing violations of the s. 10(a) right to be informed promptly for detention and s. 10(b) right to retain and instruct counsel. As Brian’s Law survived the s. 7 analysis, neither involuntary committal under Box B criteria nor CTOs constitute cruel or unusual punishment under s. 12. Lastly, the required assessments include individualized considerations including one’s clinical history, past and current mental status, and likelihood of deterioration and infliction of serious bodily harm on the patient or others, all of which precludes discrimination under s. 15(1) based on assumptions of mental disability.

The Court therefore upheld the constitutionality of Brian’s Law and the appeal was dismissed.

“Overbreadth requires that some subset of liberty infringements authorized by the impugned law be unconnected to the law’s purpose. The mere fact that the law fails to fully achieve its purpose (here, “improved treatment”) in some instances does not establish that, in those instances, the liberty infringement was unconnected to the law's purpose. In my view, the application judge had a proper foundation upon which he could conclude that even if antipsychotic or neuroleptic medication and forced treatment does not always work, the strict criteria of this legislation ensures to the extent possible that it will only be applied when, in the opinion of a physician, its effect will be beneficial in terms of health and public safety.” (Para 42)

“The application judge’s factual findings correspond with what I would describe as the most striking feature of the Box B criteria and the CTO scheme, namely, that these provisions can only be invoked following a highly individualized assessment and consideration of the patient’s specific condition and treatment needs. That assessment is directly and intimately connected with the public health and public safety goals of the legislation. The legislation specifically targets individuals whose condition is such that they will, in the opinion of a physician, benefit from the application of the law to their situation in order to avoid serious mental deterioration. The patient must be someone who has suffered from mental illness in the past, who has responded to treatment, who now suffers from the same mental illness and is to be given the same treatment. In the case of a CTO, the individual must also satisfy the “revolving door” criteria of previous hospital admissions and must consent to the order personally or through a SDM. These criteria and the expert individualized assessment they require focus on factors that minimize if not eliminate any risk of arbitrary, overly broad or grossly disproportionate application of this law.” (Para 46).

“I agree with the Attorney General that to the extent the legislation does have a public safety purpose, that purpose cannot be viewed in isolation. It must be seen as part and parcel of an integrated scheme that promotes both improved treatment and public safety. The legislation does not rest upon unproven stereotypes or assumptions about mental health and violence. Its dual purpose of promoting health and public safety is achieved through a carefully balanced scheme that requires a highly specific and individualized assessment of the individual's mental health history, treatment needs and the risk that individual poses to him or herself and the public at large.” (Para 51).