This is the second in a two-part series on CTOs in Ontario.

The first piece is reproduced here:

You can find the full second piece here:

Coercion Taking Over: Community Treatment Orders Explode in Ontario Part 2 The Lawyer’s Daily

This article was originally published by The Lawyer’s Daily, (www.thelawyersdaily.ca) a division of LexisNexis Canada.

Coercion taking over: Community treatment orders explode in Ontario, part two

Thursday, November 03, 2022 @ 9:09 AM | By Anita Szigeti

The Ontario Ministry of Health is mandated pursuant to s. 33.9 of the Mental Health Act to conduct regular reviews of the implementation and effectiveness of community treatment orders (CTOs). Had the statutory schedule been followed, we would be expecting the fifth such review in 2023.

However, the government is behind. The third review was released in 2019. That report is instructive in many ways. It frankly acknowledges that data collection has been a problem, both generally — i.e., there is no way of knowing exactly how many orders have been issued in any given time period, but whatever data exists also lacks specificity. For example, race-based data is not collected. It is impossible to know whether CTOs are being disproportionately used on Black, Indigenous or other racialized psychiatric patients.

The reviewers made do with what they could access, being limited to statistics gathered and provided to them by the Psychiatric Patient Advocate Office (PPAO), whose rights advisers meet with people on CTOs whenever they’re put on one, and the Consent and Capacity Board (CCB), which adjudicates applications to review the orders. The report concludes that both organizations are overwhelmed and their resources are severely strained by the sheer volume of CTOs being issued and renewed by psychiatrists across Ontario in seriously, sharply and steadily increasing numbers, year over year.

The last available data from the PPAO for 2018 showed 6,796 requests for rights advice in relation to CTOs that year. While the CCB received 1,865 applications to review a CTO in 2018, its new open data for 2021-2022 shows a total of 2,737 such applications, including more than 850 mandatory review hearings, which must happen every year. These numbers mean that applications to review CTOs are now the second most common applications this tribunal receives, surpassing applications to review findings of treatment incapacity for the first time in the tribunal’s history. CTOs have exploded in Ontario.

The constitutionality of the CTO provisions, among other new provisions Brian’s Law introduced into our Mental Health Act, was challenged by Karlene Thompson who ultimately fled to Jamaica after being put on a series of CTOs. The litigation was then continued by the Empowerment Council, an organization of people with lived experience (PWLE) of mental health issues, acting as a public interest litigant. The Court of Appeal for Ontario dismissed the Charter challenge in Thompson v. Ontario (Attorney General) 2016 ONCA 676 on all grounds, citing that individualized assessments were the basis of the application of all the impugned provisions and as a result, systemic discrimination was not driving this legislation.

Abuses of the rights of PWLE of mental health issues who are subjected to the CTO regime, however, continue. Justice Fred Myers recently identified a series of due process violations in the issuance of one such CTO in Kanama v. Weinroth 2022 ONSC 2748. Among other things, the issuing doctor failed to advise the patient/client an assessment for purposes of issuing a CTO would be conducted because the hospital missed the statutory deadline to renew the previous CTO. After the CTO was reissued, the doctor failed to provide the necessary documents to his patient.

In Re LF 2022 CanLII 4679 (ON CCB), the CTO had expired and had not yet been renewed. During the intervening period, the CTO co-ordinator contacted LF and told her if she did not attend to be assessed by the doctor, the police would bring her in even though there was no actual legal basis to do this. LF attended the meeting and cried during the assessment, on the basis of which the doctor then issued a new CTO. The CCB exercised its discretion to revoke this CTO. Similarly, the board also revoked the CTO in Re FS 2021 CanLII 86681 (ON CCB) in which FS refused to leave his bedroom to meet with the psychiatrist, who then entered FS’s bedroom to assess him and completed a CTO, despite his vehement refusal to meet with her.

The 2019 review of the CTO regime found that “four out of five clients interviewed expressed feeling coerced and lacking personal agency.” Also, “many studies found that clients object to their CTOs because they are restrictive and coercive.” Despite this, the report recommends extending the life of CTOs from the current six months, renewable up to one month after expiry, to two years, to “promote effectiveness and efficiency, while still protecting the rights of clients.” It is noteworthy that some of the main reasons cited by psychiatrists for not using CTOs are that the paperwork associated with them is cumbersome, and frustration with CCB review hearings where legal arguments are made. A two-year term for each CTO would indeed alleviate both these “problems.”

We can only imagine how many individuals with serious mental health issues would be coerced into medication compliance under pain of hospitalization if any and all “impediments” to issuing CTOs, which function as procedural safeguards for our clients, were removed. This is all a very far cry from the 200 people we were told would be directly affected as Brian’s Law was introduced in 2000.

This is the second half of a two-part series. Part one: Coercion taking over: Community treatment orders explode in Ontario.

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 / nadia_bormotova STOCKPHOTO.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.

Research Pod

Case(s):

Thompson v. Ontario (Attorney General), 2016 ONCA 676

Kanama v. Weinroth, 2022 ONSC 2748

Related Articles

• Manitoba Criminal Code Review Board gets new members
• Health Law – HEALTH CARE PROFESSIONALS – Treatment, authorization for – Consent
• Constitutional Law – Canadian Charter of Rights and Freedoms – Reasonable limits on Charter rights – Demonstrably justified in free and democratic society – Legal rights – Life, liberty and security of person
• Quebec waives MAiD final consent requirement as it considers expanding its scope
• Ontario Court of Appeal judgment clarifies what constitutes a ‘treatment impasse’