The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out

3. A bit of history

In the 1950s and 60s, detention in a mental hospital (civil) in Ontario was predicated on the presence of a psychiatric disorder which required observation, care, and treatment.  The 1967 Ontario Mental Health Act provided for the involuntary admission of a person to a psychiatric facility if she was suffering from a mental disorder in the nature or degree so as to require hospitalization in the interests of his/her own safety or the safety of others and was not suitable for admission as an informal patient. A one month period of detention was authorizedFootnote 2.

In 1978, the Ontario Mental Health Act was amended and criteria for involuntary hospitalization altered. The person must have threatened or have attempted to cause bodily harm to himself, behaved violently towards another, or caused another to fear bodily harm from him, or shown the lack of competence to care for himself and to be suffering from a mental disorder of a nature of quality that will likely result in serious bodily harm for the person and other persons, or imminent serious physical impairment of the person. The period of involuntary detention is 14 days.

In the 1950s, involuntary hospitalization assumed treatment was the quid pro quo for state intervention. Post 1978, as the courts defined the need for an informed consent before treatment, the union of involuntary hospitalization and treatment was broken.

There are two fundamentally different ways in which civil mental health legislation has responded to the treatment and hospitalization of the mentally ill. The 1967 Ontario Mental Health Act predicates hospitalization upon a “need to treat”. With this model mentally disordered individuals are hospitalized if there appears to be a need to treat them and they are not availing themselves of the necessary treatment voluntarily. This approach is a child of the state’s parens patriae role as guardians of the infirm. As this approach fell out of favour in the late sixties and seventies it was replaced in 1978 by the second model championed by the civil libertarians based upon dangerousness. Under the second model, we may only interfere with an individual’s freedom if he is perceived to be a danger to himself or others. If an individual is not seen as dangerous to himself or others he is free to roam the streets ‘madder than a hatter’. This latter model is the most common in North America.

What is the problem with the second model? Well, if a seriously mentally disordered person were to enter the room and he was talking to Martians and making weird noises, most of us would probably agree that there was a need to treat. Applying that test, if the individual was not prepared to come into the hospital on his own we would have him admitted on an involuntary basis. If we were to employ the second model, how many of us could feel confident concluding that he does or does not represent a danger to himself or others? The problem with this dangerousness-based legislation, some say, is that we are not able to determine with any degree of accuracy who should be detained and who should not. We make all sorts of mistakes; false positives and false negatives. That is, we make errors asserting that some individuals are dangerous when, in fact, they are not; and, we make errors asserting that some individuals are not dangerous when, in fact, they are. As a result, the civil mental health system, quite apart from resource issues, is, with the rights-based model simply unable to reliably capture many mentally disordered individuals who are at risk for criminal activity. As long as this persists, the argument goes, you will inevitably and unavoidably have mentally disordered individuals leaking through the “civil net” and slipping downstream to be caught-up in the “forensic net”. As many have observed, forensic patients are, for the most part, patients, as any others, of the civil mental health care who received inadequate supports and treatment.

I respectfully submit that, while there are complexities, this is where the bulk of the problem lies. Aggravating all of the above, is that as governments have been cash strapped and have cut back spending on health care and social programs the mentally disordered are more likely to end-up in the forensic system. As there are fewer and fewer psychiatric hospital beds per capita the greater the likelihood that individuals for whom there is no room in the civil system will end-up in the forensic system. If, for example, a hospital has fifteen vacant beds and ten prospective new customers at the door there is a good chance that they will all be admitted if they satisfy the Mental Health Act criteria or are presenting themselves as voluntary patients. They will all be looked after. If, on the other hand, there are only five vacant beds and the same 10 prospective customers are at the door some hard choices will have to be made. Five will be admitted and five will not. Five will, as a result, be left at risk for attracting the attention of the police and the criminal justice system if their odd behaviour results in the commission of a criminal offenceFootnote 3. Unfortunately, it often does. As a result of resource shortages, these customers who should have been accommodated by an adequately resourced civil mental health system have now become “forensic patients”.

With downsizing and/or restructuring of the civil mental health care systems across Canada there was inevitably the promise that by reinvesting the money saved with the bed closures into less expensive out-patient community treatment the mental health care system would actually be better off. While superficially attractive, I don’t know of any compelling support for this proposition. Some say that the ineffective shift to out-patient, community-based treatment may have something to do with the increases we are observing. Others say that, in any event, those saved dollars are never reinvested in alternative community-based care as advertised. I think that it is safe to say that many mentally ill individuals can be adequately supported through community treatment but that, at the same time, there are many who cannot be supported through community mental health care. Certainly, at the time of the transitioning it was an unproven alternative.

There is probably no single explanation for the fantastic growth of the forensic population. It is undoubtedly a product of a multiplicity of factors which includes the ones cited above.