This article was originally published by The Lawyer’s Daily, (www.thelawyersdaily.ca) a division of LexisNexis Canada.
Behind locked doors: Abuses of patients’ rights in psychiatric facilities
Tuesday, August 23, 2022 @ 1:30 PM | By Anita Szigeti
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Anita Szigeti
On July 29, 2022, the Ontario Court of Appeal released its judgment in Barker v. Barker ([2022] O.J. No. 3526, a landmark decision that could lead to similar litigation by psychiatric patients detained by the state in hospitals across the province. Ontario’s top court awarded damages ranging from $1,000 to nearly $3 million to 28 plaintiffs who were subjected to experimental “treatments” for their mental disorders at the maximum secure psychiatric facility previously known as Oakridge (now Waypoint).
In the Barker case, the plaintiffs had endured various “therapies” both the trial court and the Court of Appeal found amounted to torture. They were given mind-altering drugs like LSD, some were given alcohol despite a previous addiction to it, groups were left locked into a room together, naked, for as long as 11 days at a time. All of this happened decades ago, running from the late 1960s to the early ’80s.
One of the things patients endured was known as “The Capsule.” “The Capsule program involved locking groups of naked patients in an eight-foot by 10-foot soundproof room that was constantly lit. The windowless room had an exposed toilet and no furniture. Patients ingested food and water from straws protruding from holes in the walls and were subjected to sleep deprivation.” (para. 39). “Patients in the Capsule were frequently restrained or strapped to other patients and injected with DDT drugs to lower their inhibitions. It was common to pair “opposites” together — more submissive patients with more domineering patients.” (para. 40) One of the patients was a small 14-year-old boy held in the capsule together with a convicted pedophile.
In a very lengthy and comprehensive judgment, the court found the physicians who designed and administered these therapies had breached their fiduciary duties to their patients and were liable to them for battery. The court found the patients had not given informed consent to these treatments. The Ontario government was also held liable, in part.
You might be thinking: “Why is this judgment important now? It relates to atrocities committed more than 40 years ago. Surely, nothing like this happens in our modern psychiatric facilities today!” That’s true, to an extent.
There are no capsules in Ontario psychiatric hospitals. But, abuses of the rights of psychiatric patients do continue. There are certainly cases where informed consent to therapies is not properly obtained or is not obtained from the correct person, whether the patient who is capable to make that decision or their substitute decision maker, if they are not. There are other instances where patients’ liberty is significantly restrained without appropriate notice to anyone and occasionally instituted as punishment while masquerading as “treatment.” This includes the application of restraint, whether environmental (locked seclusion), mechanical (wrists and ankles tied to a bed) or chemical (injection of severely sedating drugs.) The Barker plaintiffs were subjected to manifest torture, all under guise of “therapeutic interventions.” This is a common theme that purports to legitimate frank abuses of human rights and civil liberties.
Most Ontarians would be shocked by the reality of psychiatric detention in our province. A physician can certify a patient and commit them involuntarily (under the Mental Health Act) with the stroke of a pen. There is no mandatory review of that decision. While a patient can apply to a tribunal (the Consent and Capacity Board) for a hearing, many are too vulnerable and never apply.
The jurisdiction of the board on that review is also narrow. It doesn’t have the ability to consider abuses of patient rights or fashion a remedy accordingly. There are precious few other remedies available to patients who complain of breaches of their human rights while detained civilly by the state in psychiatric hospitals. The Mental Health Act does have a private prosecution provision (s. 80) that has almost never been used, again because patients are too vulnerable to engage these proceedings. They could complain to the College of Physicians and Surgeons, if they could organize themselves or get counsel to assist with doing so, but the process takes too long to offer any practical remedy to address the immediate conditions of the detention and liberty deprivation. The person with the serious mental health issue also risks not being found credible, given implicit biases and societal stigma that is historically pervasive.
The other patients in a hospital like Waypoint have come in through criminal justice, as not criminally responsible (NCR) accused. Their situation is reviewed annually by another tribunal, the Ontario Review Board, which must also look at significant increases on the restriction of these patients, that go on for longer than a week. However, in order for this board to exercise that oversight, the hospital itself is tasked with notifying the tribunal that it has restricted the person’s liberty and a hearing must therefore be convened.
In recent months, the same hospital involved in the Barker case, has either refused or failed to give the mandatory notice when they have locked their NCR patients into seclusion for extended periods of time. At least two cases have recently examined this issue and found that the hospital should be giving the mandatory notice in these cases, to allow the tribunal to determine if the seclusion is warranted. In one case (Re, Ducharme [2021] O.R.B.D. No. 2363), the individual spent 317 days in locked seclusion, which means confinement in a small room for either 23 or 24 hours a day, separated from the other patients and staff. The conditions of locked seclusion in psychiatric hospitals mirror the “administrative segregation” or “solitary confinement” of mentally ill prisoners in jails, which the Court of Appeal found violates their Charter rights, in Francis v. Ontario, 2021 ONCA 197.
This is why the Barker judgment matters. Rights abuses behind the closed doors of psychiatric institutions are not a thing of the past. They can and do happen now. Awarding damages for civil torts where physicians breach their fiduciary duty to their psychiatric patients is significant. It validates the experience of the plaintiffs whose rights were breached. It also now presents a meaningful avenue for other patients to pursue where accountability measures are sorely lacking currently.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on Twitter and on her blog.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Photo credit / GDArtsISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.
• Called to the Bar (1992)
• U of T Law grad (1990)
• Sole practitioner (33 years)
• Partner in small law firm (Hiltz Szigeti) 2002 - 2013
• Mom to two astonishing kids, Scarlett (20+) and Sebastian (20-)
• (Founding) Chair of Mental Health Legal Committee for ten years (1997 to 2007)
* Founding President of Law and Mental Disorder Association - LAMDA since 2017
* Founder and Secretary to Women in Canadian Criminal Defence - WiCCD - since 2022
• Counsel to clients with serious mental health issues before administrative tribunals and on appeals
• Former Chair, current member of LAO’s mental health law advisory committee
• Educator, lecturer, widely published author (including 5 text books on consent and capacity law, Canadian civil mental health law, the criminal law of mental disorder, a law school casebook and a massive Anthology on all things mental health and the law)
• Thirty+ years’ experience as counsel to almost exclusively legally aided clients
• Frequently appointed amicus curiae
• Fearless advocate
• Not entirely humourless
anitaszigeti 
Behind Closed Doors: Abuses of Patients’ Rights in Psychiatric Facilities – Lawyer’s Daily August 23 2022
You can find the full article here:
https://www.thelawyersdaily.ca/articles/39073/behind-locked-doors-abuses-of-patients-rights-in-psychiatric-facilities?category=analysis
This article was originally published by The Lawyer’s Daily, (www.thelawyersdaily.ca) a division of LexisNexis Canada.
Behind locked doors: Abuses of patients’ rights in psychiatric facilities
Tuesday, August 23, 2022 @ 1:30 PM | By Anita Szigeti
On July 29, 2022, the Ontario Court of Appeal released its judgment in Barker v. Barker ([2022] O.J. No. 3526, a landmark decision that could lead to similar litigation by psychiatric patients detained by the state in hospitals across the province. Ontario’s top court awarded damages ranging from $1,000 to nearly $3 million to 28 plaintiffs who were subjected to experimental “treatments” for their mental disorders at the maximum secure psychiatric facility previously known as Oakridge (now Waypoint).
In the Barker case, the plaintiffs had endured various “therapies” both the trial court and the Court of Appeal found amounted to torture. They were given mind-altering drugs like LSD, some were given alcohol despite a previous addiction to it, groups were left locked into a room together, naked, for as long as 11 days at a time. All of this happened decades ago, running from the late 1960s to the early ’80s.
One of the things patients endured was known as “The Capsule.” “The Capsule program involved locking groups of naked patients in an eight-foot by 10-foot soundproof room that was constantly lit. The windowless room had an exposed toilet and no furniture. Patients ingested food and water from straws protruding from holes in the walls and were subjected to sleep deprivation.” (para. 39). “Patients in the Capsule were frequently restrained or strapped to other patients and injected with DDT drugs to lower their inhibitions. It was common to pair “opposites” together — more submissive patients with more domineering patients.” (para. 40) One of the patients was a small 14-year-old boy held in the capsule together with a convicted pedophile.
In a very lengthy and comprehensive judgment, the court found the physicians who designed and administered these therapies had breached their fiduciary duties to their patients and were liable to them for battery. The court found the patients had not given informed consent to these treatments. The Ontario government was also held liable, in part.
You might be thinking: “Why is this judgment important now? It relates to atrocities committed more than 40 years ago. Surely, nothing like this happens in our modern psychiatric facilities today!” That’s true, to an extent.
There are no capsules in Ontario psychiatric hospitals. But, abuses of the rights of psychiatric patients do continue. There are certainly cases where informed consent to therapies is not properly obtained or is not obtained from the correct person, whether the patient who is capable to make that decision or their substitute decision maker, if they are not. There are other instances where patients’ liberty is significantly restrained without appropriate notice to anyone and occasionally instituted as punishment while masquerading as “treatment.” This includes the application of restraint, whether environmental (locked seclusion), mechanical (wrists and ankles tied to a bed) or chemical (injection of severely sedating drugs.) The Barker plaintiffs were subjected to manifest torture, all under guise of “therapeutic interventions.” This is a common theme that purports to legitimate frank abuses of human rights and civil liberties.
Most Ontarians would be shocked by the reality of psychiatric detention in our province. A physician can certify a patient and commit them involuntarily (under the Mental Health Act) with the stroke of a pen. There is no mandatory review of that decision. While a patient can apply to a tribunal (the Consent and Capacity Board) for a hearing, many are too vulnerable and never apply.
The jurisdiction of the board on that review is also narrow. It doesn’t have the ability to consider abuses of patient rights or fashion a remedy accordingly. There are precious few other remedies available to patients who complain of breaches of their human rights while detained civilly by the state in psychiatric hospitals. The Mental Health Act does have a private prosecution provision (s. 80) that has almost never been used, again because patients are too vulnerable to engage these proceedings. They could complain to the College of Physicians and Surgeons, if they could organize themselves or get counsel to assist with doing so, but the process takes too long to offer any practical remedy to address the immediate conditions of the detention and liberty deprivation. The person with the serious mental health issue also risks not being found credible, given implicit biases and societal stigma that is historically pervasive.
The other patients in a hospital like Waypoint have come in through criminal justice, as not criminally responsible (NCR) accused. Their situation is reviewed annually by another tribunal, the Ontario Review Board, which must also look at significant increases on the restriction of these patients, that go on for longer than a week. However, in order for this board to exercise that oversight, the hospital itself is tasked with notifying the tribunal that it has restricted the person’s liberty and a hearing must therefore be convened.
In recent months, the same hospital involved in the Barker case, has either refused or failed to give the mandatory notice when they have locked their NCR patients into seclusion for extended periods of time. At least two cases have recently examined this issue and found that the hospital should be giving the mandatory notice in these cases, to allow the tribunal to determine if the seclusion is warranted. In one case (Re, Ducharme [2021] O.R.B.D. No. 2363), the individual spent 317 days in locked seclusion, which means confinement in a small room for either 23 or 24 hours a day, separated from the other patients and staff. The conditions of locked seclusion in psychiatric hospitals mirror the “administrative segregation” or “solitary confinement” of mentally ill prisoners in jails, which the Court of Appeal found violates their Charter rights, in Francis v. Ontario, 2021 ONCA 197.
This is why the Barker judgment matters. Rights abuses behind the closed doors of psychiatric institutions are not a thing of the past. They can and do happen now. Awarding damages for civil torts where physicians breach their fiduciary duty to their psychiatric patients is significant. It validates the experience of the plaintiffs whose rights were breached. It also now presents a meaningful avenue for other patients to pursue where accountability measures are sorely lacking currently.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on Twitter and on her blog.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Photo credit / GDArtsISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.
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Case(s):
Ducharme (Re), [2021] O.R.B.D. No. 2363
Francis v. Ontario, 2021 ONCA 197
Barker v. Barker ([2022] O.J. No. 3526
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About Anita Szigeti
• Called to the Bar (1992) • U of T Law grad (1990) • Sole practitioner (33 years) • Partner in small law firm (Hiltz Szigeti) 2002 - 2013 • Mom to two astonishing kids, Scarlett (20+) and Sebastian (20-) • (Founding) Chair of Mental Health Legal Committee for ten years (1997 to 2007) * Founding President of Law and Mental Disorder Association - LAMDA since 2017 * Founder and Secretary to Women in Canadian Criminal Defence - WiCCD - since 2022 • Counsel to clients with serious mental health issues before administrative tribunals and on appeals • Former Chair, current member of LAO’s mental health law advisory committee • Educator, lecturer, widely published author (including 5 text books on consent and capacity law, Canadian civil mental health law, the criminal law of mental disorder, a law school casebook and a massive Anthology on all things mental health and the law) • Thirty+ years’ experience as counsel to almost exclusively legally aided clients • Frequently appointed amicus curiae • Fearless advocate • Not entirely humourless