In the course of reviewing articles related to issues I have been thinking about recently, I came across this coverage of a panel presentation at the Law Society from seven years ago. There are valuable comments by my cherished colleague, friend and often client, the Executive Director of the Empowerment Council, Jennifer Chambers and others.

My own writing on these issues has been published over the last few days in Law360 in two parts.

You can read the first part in Law360 published on May 28 2025 here:

Pitfalls in tribunal adjudication of mental health matters: Issues identified by reviewing courts

You can read the second article as published in Law360 on May 29 here:

Common pitfalls in tribunal adjudication of mental health matters, part two: Potential solutions

What I found interesting about the older work are some observations attributed to the CCB lawyer member on the panel.

A Consent and Capacity Board member reportedly commented that there is a balancing that happens at their hearings, which includes the right to treatment. That’s an interesting observation I am hearing or rather reading for the first time and wonder about.

There is no right to treatment whether in our constitutional laws ie the Charter of Rights or elsewhere, as far as I know.

Here is the article:

Addressing entrenched biases improves justice for those with mental health issues, panel says

By Amanda Jerome

Law360 Canada (November 6, 2018, 1:46 PM EST) — From the criminal bar to a slew of administrative tribunals, people with mental health disabilities engage with the justice system to a wide extent. However, their rights are often impacted as debates over their mental capacity dominate their dealings with the justice system and their legal counsel can be swayed by bias.

So, what’s the best way to improve the situation? Consult those impacted directly and listen to what they have to say, suggested a panel of experts gathered for Access to Justice Week, held Oct. 22-28.

The “Mental Health – Access and Ethics” session, hosted on Oct. 26 at the Law Society of Ontario by The Action Group on Access to Justice (TAG), explored how the justice system approaches mental health.

David Wright, chair of the Law Society Tribunal, moderated the panel and said it would focus on “the lived experience” of justice system users with mental health disabilities.

“One of the biggest biases is a confusion of compliance with capacity,” said panellist Jennifer Chambers, executive director of the Empowerment Council, an organization that advocates for current and former clients of mental health and addiction services.

Chambers mentioned a case the Empowerment Council worked on in which a psychiatric patient was trying to explain that his medications didn’t help him. The patient argued before the court that if he refuses psychiatric medication it’s “implicit evidence that he’s incapable.” Chambers explained that the man was in a catch-22: he couldn’t refuse and be considered capable, so there’s no way he could legitimately say no to the medication.

“You can have people who have very little understanding of what’s going on, but if they’re compliant, they don’t get judged incapable. But if they don’t agree to take medication then they’re much more likely to be judged incapable,” she said. The Consent and Capacity Board (CCB) doesn’t recognize how often this bias happens, she added.

Chambers also pointed out the biases about treatment itself that can impact a patient’s justice journey.

“There’s a far lower efficacy rate for psychiatric medications than is popularly believed. They’re in no way a magic bullet. They do help some people for sure, but there’s lots of other people they do not help. So, it shouldn’t be over assumed that somebody is irrational in saying that medications don’t help them,” she said, giving another example of a case she was involved with before the CCB.

In that instance, a patient was saying a drug made her sick. She wasn’t refusing the medication, but she wanted to be put on a different drug. The patient was overruled, and it was mandated that she continue taking the drug in question.

“It did make her very sick and shortly after she had to be taken off it. It was a very dangerous situation because her white blood cell count went very low. It should never have happened,” said Chambers. She noted that there’s an “over-adherence to medical opinion without understanding that patients are often the best judge of what helps them.”

“Patients should be consulted always on their disposition and their treatment because there is evidence that there’s a better outcome if you base treatment off what people say they need,” she explained.

Panellist Tess Sheldon, an assistant professor in the Faculty of Law at the University of Windsor, said she’d been struck by the metaphor of a pendulum that’s often used to describe the polarity of mental health law.

“On one side of this pendulum is this idea of easy interventionism based on paternalism and it’s used to justify or defend coercive legal regimes or interventions,” she said. “And then on the other side of the pendulum is the vigorous assertion of autonomy and the right to refuse unwanted treatment and the ability to assert one’s preferences.”

The resolution of problems usually boils down to a tradeoff between a person’s rights and health, she said. In other words, “how far can we impinge on individual rights in order to protect the public’s health?”

Sheldon said it’s clear that rights are good for a person’s health and that if you give people the rights they need, then they improve and there’s no need for coercive interventions.

“A home, a job and a friend is something you hear about from mental health policy makers and if you pay attention to those barriers to access ‘a home, a job and a friend,’ you remove barriers that prevent people from being well in their communities,” she explained, noting that people with mental health disabilities are more likely to seek remedies from administrative tribunals, but still face a wide array of barriers through that access to justice.

Chambers noted that being heard and represented by legal counsel in the court is a rare experience for somebody in psychiatric custody.

“I’ve encountered lawyers who don’t seem to understand that their job is to represent the will of clients and instead take a best interest perspective, which is a perspective that’s anathema to one who’s got a disability,” she said. She added that a CCB member once told her about a lawyer who has a little signal that he gives the board if “he doesn’t really think the client should be released no matter what he says.”

Chambers stressed how horrible that was and suggested the lawyer in question be disbarred.

Sheldon pointed out that there’s a difference between the “law in action” and the “law on the books.” She said that even if great policies exist, it’s what happens in practice that matters.

“Really careful attention needs to be paid to who’s the client. It’s not the family member unless there’s been some kind of appointment made. I think there does need to be a lot more training about what we mean by capacity to instruct and make very clear that capacity has nothing to do with compliance,” she noted, explaining that if a client disagrees with their lawyer, that doesn’t make them incapable.

Chambers also brought up the argument that victim impact statements are a violation of the Charter for people found not criminally responsible as they cater to public prejudice.

“I think the members of all the tribunals and legislative committees really need to have misconceptions and stereotypes addressed. The criminal defence bar has a better understanding of the implications of someone being found not criminally responsible,” she said, adding that people often aren’t given an accurate understanding of what’s going to happen to them if they’re determined not criminally responsible.

“They’ll [counsel] say ‘oh, a little while in a nice hospital.’ Years later, I can tell you, people are hating their lawyer because it’s two years later and they could have been out in six months, but they’re still in custody,” she explained, stressing that clients need to be properly instructed on what will happen to them if they go to jail rather than a hospital.

Sheldon pointed out that there’s been a call for specialization in the justice system to set up places such as mental health courts.

“Those calls typically rely on something called therapeutic jurisprudence,” she said, adding that this is a “set of ideas that call for flexibility of nuance around rules of general application in order to improve well-being and reduce harm by the process.”

“The name itself is kind of problematic because it sort of implies a medical model,” she explained. She stressed that judges in these courts still have social control over people with mental health issues.

Sheldon said the consequences of merging adversarial and therapeutic approaches might mean that offenders spend more time in contact with the criminal justice system and might lead to more intrusive interventions and the possibility of coerced consent.

“I propose there are alternatives to the therapeutic jurisprudence approach and other kinds of client-centred, but still rights-based, approaches,” she said, stressing the need for trauma-informed methods to lawyering and decision making.

This focus on trauma is inspired in part by the #MeToo movement, she said, and it is also based on new scientific evidence on the impact trauma has on learning and memory.

Panellist Nina Lester, an adjudicator and vice-chair with the CCB, described the board as a quasijudicial body that receives applications from psychiatric patients who wish to challenge the decisions of their doctors.

“We’re something like a watchdog agency to oversee doctors’ decisions and make sure they’re not making those decisions arbitrarily or hastily and without evidence,” she explained, highlighting the fact that the CCB goes through rigorous training and issues its decisions on a tight deadline.

“Part of our mandate is to balance competing rights,” she said, explaining that the board is responsible for making decisions on matters in which the least restrictive, least onerous and least intrusive decisions are made to balance the following interests: maintaining the safety of the individual; protecting the safety of the community; maintaining the dignity and autonomy of the individual; and preserving the right of a person to have treatment when required.

“This last one is the one that gets forgotten sometimes when we’re balancing autonomy versus public safety. We sometimes forget that people who are unwell also have a right to be treated for their illness even if they don’t necessarily see that it’s necessary at that moment. Protecting someone from the ravages of an illness is also a right, I think, in our society,” she stressed.

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