Corps de l’article

Introduction

Most modern mental health legislation provides for some sort of review body to oversee decisions to admit persons involuntarily into psychiatric facilities, to review findings of incapacity to consent to medical treatment, and/or to issue community treatment orders (CTO). This review body often takes the shape of an independent mental health tribunal (MHT)[1] charged with the role of ensuring that an individual’s autonomy is only limited according to the substantive and procedural requirements established by law.

This article questions whether these tribunals have or should have a wider role than the one traditionally assigned to them. The recent jurisprudence from the Supreme Court of Canada (SCC) regarding the jurisdiction of administrative agencies to entertain constitutional and quasi-constitutional challenges provides an interesting opportunity to review this question. What are the effects of such jurisprudence on the work of MHTs and on their use as a forum to adjudicate questions concerning the adequacy of health care provided? This is not only an academic question but also a question of access to justice, as MHTs are invariably the only adjudicative body, in terms of monitoring compliance with mental health legislation, to which the mentally ill have access.

This article begins by providing a brief overview of constitutional jurisprudence in the context of Canadian mental health legislation, which has been limited to litigation over the boundaries of legitimate state action and has not addressed the right to adequate care. It then turns to the recent SCC decisions that address the authority of administrative agencies to deal with constitutional and quasi-constitutional claims.

Part V introduces the debate surrounding the right to adequate health care in the context of mental health legislation. It then considers a number of potential constitutional and quasi-constitutional claims to adequate health care that could be made before MHTs and highlights some of the legal barriers these claims face. It concludes that, subject to some limited circumstances where tribunals have been given limited discretion to factor adequate care into their decisions, the recent Canadian jurisprudence will not significantly affect the limited jurisdiction of MHTs.

I. The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms,[2] part of Canada’s Constitution, came into force in 1982. The text outlines political and civil rights that apply to the actions of all levels of government. Canadian courts have the power to strike down legislation that conflicts with Charter rights. In terms of mental health legislation, the most pertinent sections are: section 7 (“the right to life, liberty and security of the person”), section 9 (“the right not to be arbitrarily detained or imprisoned”), section 10 (the right, upon arrest or detention, to legal counsel and to habeas corpus recourse), section 12 (the right not to be subjected to cruel and unusual punishment), and section 15 (the right to equality). These rights are generally subject to the limitations clause (section 1), which allows governments to justify certain infringements of rights.

A number of provincial mental health laws have been challenged on the basis of constitutional incompatibility. This litigation has only dealt with alleged breaches of negative rights. Early on, the courts upheld the constitutionality of Ontario’s mental health legislation.[3] The administration of treatment without the patient’s consent and against his or her will, for instance, was found not to violate section 7 of the Charter because the framework erected under the mental health legislation was in accordance with the principles of fundamental justice.[4] Nor was an MHT’s admission and reliance on hearsay evidence considered to violate the Charter.[5]

The courts, however, struck down legislative provisions dealing with involuntary committal in Manitoba because the provisions did not narrowly define those persons with respect to whom they could be properly invoked and did not specifically prescribe the conditions under which a person could be detained.[6] The amended legislation, which included a test for involuntary admissions that listed “dangerousness” as a criterion,[7] was subsequently upheld by the court.[8] Dangerousness, however, is not the only permissible criterion for involuntary committal. Courts have held that the criterion of protection of the patient or others, for instance, involves the notion of harm and is thus not so vague as to constitute a breach of section 7 of the Charter.[9]

More recently, courts have held that the test for determining a patient’s capacity to consent to treatment under Ontario mental health legislation is not unconstitutionally vague,[10] and that the legislation does not infringe the Charter by permitting the administration of treatment to be forced on involuntary incapable persons[11] and the civil committal of certain sexual offenders at the end of their sentences.[12]

The Charter has also been invoked in the context of advance directives. In this regard, provisions of Ontario’s Mental Health Act that permitted the province’s mental health tribunal to override the competent wishes of incapable patients and the decisions of their substitute decision makers, without providing recourse to a hearing to determine why the patient’s wishes should not be honoured, were found to violate the right to security of the person under section 7 of the Charter.[13]

Finally, the judiciary has, in the context of Charter challenges, commented on the scope of patients’ right not to incriminate themselves[14] and their right to be informed of their right to counsel.[15]

II. Jurisdiction of Mental Health Tribunals to Assess the Constitutional Validity of Legislation

The power to assess the constitutionality of legislation derives from section 52 of the Constitution Act, 1982.[16] In the past, administrative tribunals that had jurisdiction—whether express or implied—to decide questions of law arising under a legislative provision were presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. In Cooper v. Canada, however, the SCC suggested that it would not be easy to make a finding of implied jurisdiction.[17] This, in effect, created a presumption of lack of jurisdiction to consider the constitutionality of legislation for those boards that lacked express jurisdiction, including most, if not all, MHTs in Canada.

The SCC reversed this approach in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur,[18] shifting to a presumption of jurisdiction, so long as the tribunal in question has express or implied power to deal with questions of law.[19] The Court further held that “[t]his presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal’s authority over questions of law.”[20]

The decision in Martin was bound to give rise to a constitutional challenge under section 52. In the context of MHTs, this occurred in Ontario (Attorney General) v. Jane Patient,[21] where the respondent patient had challenged the constitutional validity of Ontario legislative provisions dealing with CTOs. According to the Ontario Mental Health Act, “[t]he purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility.”[22] On judicial review from a decision of the Consent and Capacity Board (CCB), Ontario’s MHT, the court held that the board did not have jurisdiction to determine the constitutional validity of the CTO provisions in its enabling legislation[23] because this legislation did not give the board jurisdiction to consider questions of law (specifically, constitutional challenges); this was evidenced by the fact-intensive nature of the board’s typical inquiries and the strict statutory timelines imposed on its proceedings.[24] Importantly, the court was of the opinion that, even assuming that the board did have implied jurisdiction to determine questions of law, the presumption that the board had jurisdiction to adjudicate Charter challenges with respect to those questions of law was rebutted because the strict statutory time limits under which the board was required to conduct hearings and render decisions made consideration of Charter challenges unrealistic.[25] The court also expressed some concern about having a potential majority of nonlegal members deciding Charter issues.[26]

A. Did Jane Patient Apply Only to the Challenged Community Treatment Order Provisions?

The decision in Jane Patient arguably applied only to the impugned CTO sections of the Ontario Mental Health Act[27] and left open potential section 52 challenges of other provisions of the legislation. Nevertheless, the court’s comments regarding the strict statutory limits on the CCB pertain to the tribunal’s institutional constraints and are equally applicable to other decisions under the jurisdiction of the CCB (and other Canadian MHTs).[28] The court’s analysis is of particular relevance to reviews of involuntary admission as it appeared to endorse the rationale behind Re C(J), which held that the legislature intended to limit the mandate of the psychiatric review board (a predecessor of the CCB) to a factual inquiry of whether the statutory conditions for involuntary admission were met.[29]

The issue of whether Jane Patient had implications beyond the CTO provisions in question quickly became moot. Subsequent to the release of the decision, the legislation was amended to preclude the CCB from deciding the constitutional validity of an act or regulation.[30] A similar approach has been taken in British Columbia, where the Mental Health Review Board is barred from exercising jurisdiction over “constitutional questions”.[31] The question of whether other Canadian MHTs have authority to deal with the constitutional validity of legislation has not yet been litigated.

III. Remedial Power under Section 24(1) of the Charter

Jane Patient addressed whether the CCB had the power to decide the constitutionality of legislation under section 52 of the Charter, but not whether the board had a remedial power under section 24(1). The latter may apply to a situation where the law itself is constitutional, but where the actions taken by a health practitioner pursuant to that law violate the Charter rights of a patient.

An administrative tribunal that is found to be a “court of competent jurisdiction” has authority to provide Charter remedies under section 24(1). Historically, an administrative tribunal was a “court of competent jurisdiction” under section 24(1) of the Charter if it had jurisdiction over the person and the subject matter, and was able to grant the remedy sought.[32] This approach was modified in R. v. Conway,[33] where the SCC held that when a Charter remedy is sought from an administrative tribunal, whether the tribunal is one of “competent jurisdiction” under section 24(1) depends on whether it is authorized to decide questions of law.[34]

Whether an MHT has remedial jurisdiction under section 24(1) was first addressed in Ontario in Chandrasena.[35] The Ontario psychiatric review board was found not to be a “court of competent jurisdiction” for the purposes of section 24(1), though the court did not elaborate on the reasons for this finding. This issue was revisited and fully addressed in Re C(J).[36] The physician in this case appealed the psychiatric review board’s decision to rescind a certificate of involuntary admission, but he abandoned the appeal before it was heard and proceeded to have the patient recommitted as an involuntary patient.[37]

Thereafter, the patient again applied to the psychiatric review board to review his continuing status as an involuntary patient.[38] The board ruled that it had jurisdiction to consider whether the actions of the hospital had infringed the patient’s rights under sections 7 and 9 of the Charter. It also ruled that it was a “court of competent jurisdiction” in terms of section 24(1) of the Charter. The board proceeded to hold that the hospital had violated the Charter and abused the processes of the board in abandoning an appeal that it knew it could not win and in instead proceeding to have the patient recommitted under the provisions of the Ontario Mental Health Act. As a result, the board made some procedural rulings but did not grant the patient the remedy he was seeking—namely, a stay of the certificate of involuntary committal. The decision was reversed on appeal.[39] The court relied on the deleterious effects to the tribunal’s ability to perform its intended function (such as time constraints, workload, and the tribunal’s expertise and ability to compile a record) in determining that the board did not have jurisdiction to deal with Charter issues or to grant Charter relief.[40]

The question of whether administrative tribunals may administer remedies under section 24(1) of the Charter was recently reviewed by the SCC in Conway.[41] Seeking relief under section 24(1), Conway applied to the Ontario Review Board (ORB) for an absolute discharge, a direction that the hospital provide specific treatment, and some other remedies, alleging breaches of a number of sections of the Charter. Such review boards are tribunals established under Canada’s CriminalCode that review the status of every person who has been found to be not criminally responsible or unfit to stand trial for criminal offences on account of a mental disorder.[42] The ORB concluded that it had no Charter jurisdiction in light of its enabling legislation and function, and with regard to its own past rulings and the rulings of other review boards confirming these boards’ lack of section 24(1) jurisdiction. The Ontario Court of Appeal, by a two to one margin, confirmed that the ORB lacked jurisdiction to hear Charter applications or to grant Charter remedies under section 24(1).[43] On further appeal, the SCC determined that the ORB had remedial jurisdiction under section 24(1).[44] It also expanded upon the wider issue of the relationship between the Charter, its remedial provisions, and administrative tribunals generally.

The SCC characterized as “unhelpful” the previous practice of asking every tribunal from which a Charter remedy was sought whether it was “competent” to grant a particular remedy within the meaning of section 24(1):

The question instead should be institutional: Does this particular tribunal have the jurisdiction to grant Charter remedies generally? The result of this question will flow from whether the tribunal has the power to decide questions of law. If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate (Cuddy Chicks trilogy; Martin). A tribunal which has the jurisdiction to grant Charter remedies is a court of competent jurisdiction. The tribunal must then decide, given this jurisdiction, whether it can grant the particular remedy sought based on its statutory mandate. The answer to this question will depend on legislative intent, as discerned from the tribunal’s statutory mandate (the Mills cases).[45]

In finding that the ORB had the power to decide questions of law, the SCC relied heavily on the provisions of the Criminal Code, which provide that any party may appeal an ORB’s disposition on questions of law, fact, or mixed fact and law. Interestingly, the court in Jane Patient had rejected this very same argument when reviewing the similar appeal provisions for CCB decisions.[46] Unfortunately, in Conway the SCC did not address Jane Patient in its reasoning, though post-Conway case law has confirmed that the appeal provisions of a tribunal may be determinative in answering whether a tribunal has the authority to deal with questions of law.[47]

The decisions of the Court in Martin[48] and Tranchemontagne[49] have “gradually expanded the approach to the scope of the Charter and its relationship with administrative tribunals,” with Conway being “an attempt to consolidate the results of that expansion.”[50] It is hard to avoid the conclusion that Conway has, by implication, overturned the view of the court in Jane Patient—namely, that appeal provisions are not determinative of a tribunal’s power to deal with questions of law. Since legislation in Ontario and several other Canadian provinces provides similar grounds for appeal from decisions of MHTs,[51] it therefore appears that at least those Canadian MHTs that have not been previously found to be courts of competent jurisdiction may be found to have the authority to decide questions of law.

A. Legislative Intent to Exclude Charter Jurisdiction

The SCC also characterized the function of the ORB as follows:

The Board is a quasijudicial body with significant authority over a vulnerable population … [and it was established] as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused who have been found not criminally responsible by reason of mental disorder.[52]

On this basis, the SCC held that there was no support for the notion that Parliament intended to withdraw Charter jurisdiction from the scope of the ORB’s mandate.

Provincial MHTs have different functions than review boards constituted under the Criminal Code. The former do not have “ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge” of patients appearing before them. Rather, they review decisions made by health practitioners at specific points in time. It is therefore unclear to what extent a court would deem the legislative functions of an MHT to be similar to the ones of a review board in terms of intention to exclude the Charter.

As discussed above, some Canadian jurisdictions, such as British Columbia, have explicit limitation clauses that bar tribunals from entertaining constitutional questions, thus expressing a clear intention to exclude any Charter claims. Less clear are provisions such as section 70.1 of Ontario’s HCCA, which precludes the CCB from deciding the “constitutional validity of an Act or a regulation.”[53] Although this amounts to a clear intention to exclude section 52 jurisdiction, it may not amount to a clear intent to withdraw this tribunal’s remedial power under section 24(1).

This issue could be argued in one of two ways. First, if the legislature did not want an adjudicative agency to deal with the constitutional validity of an act, it surely, impliedly, did not want it to be dealing with other constitutional matters such as section 24(1). As discussed below, however, this rejection-by-implication argument was rejected by the majority of the SCC in Tranchemontagne,[54] a case in which the Court addressed the jurisdiction of adjudicative agencies over quasi-constitutional legislation. The majority in Tranchemontagne distinguished between questions of law under the Charter and under provincial human rights codes. This distinction is harder to make when comparing questions of law arising from section 52 and section 24(1), as these are of the same nature.

In the alternative, the express reference to constitutional validity may mean that the legislature assumed that an administrative tribunal such as the CCB had full Charter/constitutional jurisdiction, and only found it necessary to exclude the constitutional validity aspect. According to this interpretation, the power to grant remedies under section 24(1) and under the common law remains.[55] Courts may adopt this narrow interpretation of provisions with similar wording to section 70.1 of the Ontario HCCA and find that the tribunal still has authority to provide a remedy under section 24(1). This alternative interpretation is in line with the developing jurisprudence of the SCC, as reflected in Martin and Tranchemontagne.

B. A Tribunal’s Jurisdiction over Remedies

Assuming neither the legislation nor the function of an MHT clearly withdraws section 24(1) jurisdiction, the SCC in Conway affirmed:

[T]he remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function.[56]

Considering the scope and nature of the ORB’s statutory mandate and functions, the Court noted the requirements of section 672.54 of the Criminal Code, and the four enumerated statutory criteria: the need to protect the public from dangerous persons; the patient’s mental condition; the reintegration of the patient into society; and the patient’s other needs.

The Court found that the ORB had a “necessarily broad” discretion to consider a large range of evidence in order to fulfill this mandate.[57] After noting that the ORB could not grant an absolute discharge to an individual who remained a significant threat to the safety of the public and that a disposition may not include any conditions that prescribe or impose treatment on a non-criminally responsible accused, the Court concluded that, subject to these limits,[58] the content of the conditions included in a disposition was at the ORB’s discretion:

In this way, the Board has the statutory tools to supervise the treatment and detention of dangerous [not criminally responsible (NCR)] patients in a responsive, Chartercompliant fashion and has a broad power to attach flexible, individualized, creative conditions to the discharge and detention orders it devises for dangerous NCR patients.[59]

The terms and conditions imposed by review boards when making dispositions may, therefore, include ordering governments to supply community housing when ordering a conditional discharge,[60] ordering certain living conditions for forensic in-patients, or setting up timelines for the transfer of forensic patients to lower-security facilities. Some of the conditions may be deemed a limited way to give effect to forms of entitlement. In contrast with review boards, most MHTs have no power to impose terms or conditions. Rather, their jurisdiction is generally restricted to confirming decisions to civilly commit a person and findings of incapacity to consent to medical treatment. Conway’s application to the work of most MHTs appears, therefore, to be of limited scope.

C. Charter Jurisdiction Does Not Allow Tribunals to Grant New Remedies

The narrow effect of Conway regarding the work of MHTs is also supported by the fact that Conway’s appeal was ultimately dismissed because he was not entitled to the particular Charter remedies he sought. Administrative tribunals cannot order treatment or other remedies beyond the agency’s statutory power (for example, costs, injunctions, damages, etc.). The Conway decision appears to turn, as such decisions always do, on the remedies available to the claimant as defined in the statute. The test for jurisdiction to grant a remedy was not changed by Conway: if the legislature or Parliament did not intend that a tribunal have a certain remedial power, section 24(1) of the Charter does not give that tribunal anything more. An individual before an administrative tribunal is not entitled to receive a remedy not contemplated by the legislation, Charter violation or not.

IV. The Application of Human Rights Codes

As discussed above, Charter jurisprudence in Canada neither recognizes a positive duty to provide adequate health care, nor does it give MHTs any remedial powers they have not been granted by legislation. In addition to the Charter, individuals can avail themselves of the protection provided by human rights legislation. Both federal and provincial human rights codes address discrimination on certain prescribed grounds, including “mental disorder” and “mental impairment”.[61] One example is Ontario’s Human Rights Code, which upholds the right to equal treatment “with respect to services, goods and facilities.”[62] A person with a mental disability could potentially advance a claim to adequate treatment on the basis of discrimination in the provision of goods, services, and facilities.

Thus, claims under human rights codes encompass a broader conception of rights than the Charter does. The various human rights codes also differ from section 15 of the Charter in that they provide protection against discrimination[63] by individuals in the private sector; the Charter’s equality rights provision only extends to the actions of governments. The remedy for a provision that is found to breach human rights legislation is a declaration of inapplicability rather than a finding of invalidity under the Charter.[64]

The authority of adjudicative agencies to deal with human rights legislation was addressed in the aforementioned Tranchemontagne decision.[65] This case involved two individuals who challenged a finding that, although their circumstances satisfied the definition of “disability” under the Ontario Disability Support Program Act, 1997,[66] they were ineligible for benefits under that act because their disabling condition was substance abuse. They argued that this exclusion violated the OntarioCode.

The Social Benefits Tribunal (SBT) found that it did not have jurisdiction to consider whether a section of the act was inapplicable by virtue of the OntarioCode. The SCC applied the analysis in Martin (subsequently reiterated in Conway) and found that the SBT was a tribunal empowered to decide questions of law and was therefore presumed to have the power to look beyond its enabling statutes to apply the whole law to a matter properly before it. The majority of the Court therefore held that the SBT had jurisdiction to consider the OntarioCode. Tranchemontagne confirms that administrative tribunals with authority to decide questions of law must give effect to the primacy of human rights legislation over ordinary legislation.[67]

As discussed above, the SCC in Tranchemontagne split with respect to the effects of certain amendments to the SBT’s enabling legislation which, similarly to the CCB, prohibited the SBT from considering the constitutional validity of any act or regulation. The majority of the Court held that this statutory prohibition did not in itself preclude the application of human rights legislation, as issues arising under human rights codes belong to a different category of questions of law than do Charter-related issues.[68]

Furthermore, the minority in Tranchemontagne used the test in Martin to find that “practical considerations” indicated the legislature’s intention that the SBT not consider legal questions regarding the validity of a statute.[69] These practical considerations were similar to the grounds used in Re C(J) and Jane Patient, which included the tribunal’s institutional characteristics and the inappropriateness of the SBT deciding such complex, time-consuming legal issues. The SBT’s hearings are informal, private, and brief. The SBT was meant to provide an efficient, effective, and quick process. Imposing human rights legislation compliance hearings on it would inevitably have had an impact on its ability to assist the disabled community in a timely way, as indeed happened when the case was sent back to the SBT for reconsideration.[70] The proceedings before the CCB were also significantly delayed in the case of Jane Patient.[71]

The comments expressed by the minority regarding the SBT are applicable to MHTs, whose human rights code jurisdiction has not been expressly removed. Human rights litigation before MHTs will also affect the efficient, effective, and speedy adjudication of matters. Whether claims for adequate care, founded on human rights legislation, will be invoked before MHTs remains to be seen.[72] The uncertainty regarding a mental health tribunal’s power to hear a Charter or human rights claim creates a difficult predicament for someone trying to advance such arguments. A party may choose not to raise the latter before an MHT to avoid delays and to obtain a speedy resolution of his or her claim. However, the party then runs the risk of not being able to raise such a claim before a reviewing court, lest the court decline jurisdiction because the appellant did not exhaust all recourse to tribunals. One would expect the courts to take a lenient view in cases in which the party was self-represented at the tribunal level. A party with legal representation will, however, be forced to make a strategic choice.

On this point, it is worth noting that an individual making a claim under human rights legislation will have to show unjustified discrimination between the provision of services for the mentally ill and the physically ill (or some other comparator group).[73] This may be an insurmountable barrier that requires proving that the person with the mental disability is seeking access to existing government benefits.[74] For example, a claim to appropriate community housing, residential, or treatment facilities may fail if no such service is provided to a comparator group.[75] Thus, limited or non-existent government funding may by itself create an additional legal barrier for a person arguing for entitlement to a health benefit under a human rights code. Alternative arguments could be made on the basis of discrimination between individuals suffering different types of mental disorder; for example, if health services available to the mentally ill were not available to the complainant or only offered to a specific gender or age group.

V. Potential Claims before Mental Health Tribunals to Advance Rights to Adequate Care

The absence of legal provisions addressing the right to adequate health care for the mentally ill continues to be identified as one of the main shortcomings of modern mental health legislation:

Any contemporary model of mental health law (including rights protections) must surely be judged mainly by how well it engages with these new patterns of service, and the degradation of service quality and resourcing often associated with contemporary delivery of community mental health services. It is here that current models of mental health adjudication, and any wider human rights laws, are most found wanting. ... [However], [o]verseas experience in Canada or the United Kingdom demonstrates that the omission of positive (“economic and social”) rights, such as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, renders human rights laws of little assistance in leveraging access to treatment services or resources.[76]

The call for a more holistic vision of mental health care can find its theoretical underpinning in the work of Henry Shue and other scholars who have long argued for a model of basic rights that would include corresponding duties.[77] For Shue, those duties take three essential forms: to avoid deprivation, to protect from deprivation, and to aid the deprived. All of these duties must be performed to guarantee that a basic right, such as a right to physical security, is respected. The first form can be considered a negative duty, which is reflected in the provisions of most mental health legislation and in the traditional review role of MHTs. The second and third duties require state action to ensure access to adequate health care for the mentally ill. In other words, the second and third obligations owed to those deprived of their liberty mean they should actually get the care and treatment needed.[78]

This wider conceptualization of rights, which encompasses reciprocity, appears to be reflected in international human rights instruments such as the Universal Declaration of Human Rights;[79] the International Covenant on Economic, Social and Cultural Rights;[80] the UN Mental Health Principles;[81] and the Convention on the Rights of Persons with Disabilities.[82]

This raises a question as to the appropriate legal forum for making such claims. As seen from the review above, the Canadian court system has not proven to be an effective arena for deciding claims by the mentally ill for adequate care. This is not surprising in light of the historical reluctance of the judiciary to recognize constitutional health claims in general,[83] as confirmed in Auton,[84] and reinforced by the minority opinion in Chaoulli.[85] These decisions in effect reaffirmed the lack of a constitutional right to health care in Canada, although the minority opinion in Chaoulli also supports the principle of reciprocity by making it clear that access to health care falls under section 7 of the Charter.[86] This may bolster an argument in favour of an MHT’s discretionary, positive, remedial role when interpreting legislation according to Charter values. An MHT’s decision must be made consistently with the Charter and its values.[87] As the SCC acknowledged in Conway, by heeding the submissions of the parties and by trying to ascertain with some precision the least onerous and least restrictive disposition in their normal operation, both review boards and MHTs may already be addressing areas where the Charter and clinical practice could be said to overlap. Charter considerations may in many cases already be accounted for as tribunals aim to arrive at a decision that impinges “on [the claimant’s] liberty rights as minimally as possible, having regard to the particular circumstances of each case,”[88] and which makes the liberty of the person a major preoccupation.[89]

In other words, the remedial provisions of a tribunal may already provide it with the statutory tools to craft a decision in a responsive, Charter-compliant fashion without the need to avail itself of a Charter or human rights remedy. Tribunals “must act consistently with the Charter and its values when exercising their statutory functions.”[90] In the words of the SCC:

[I]t may well be that the substance of Mr. Conway’s complaint ... can be fully addressed within the framework of the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values. If that is what the Board ultimately concludes to be the case, resort to s. 24(1) of the Charter may not add either to the Board’s capacity to address the substance of the complaint or to provide appropriate redress.[91]

The section below explores some potential areas in which an MHT may use Charter values to further the right to adequate health care.

A. Ordering, Recommending, or Reviewing Treatment and the Surrounding Conditions

A tribunal’s review of the appropriateness of the treatment proposed to an individual appearing before an MHT may be necessary to their function of preventing an unjustified deprivation of liberty or physical integrity.[92] It can lead health services to rethink their priorities and to reallocate their resources in order to give effect to these various tribunal orders. The purposes of the statutory scheme may then be used to advance provision of the best possible care in the least restrictive environment.[93] Nevertheless, without careful control, there is a risk that an MHT may overstep its jurisdiction and be challenged as encroaching on the clinical decision making of health care workers:[94] as discussed before, physicians cannot be ordered to follow a specific treatment plan in a way that is contrary to their ethical obligations and professional judgment.[95]

Not surprisingly, Canadian MHTs have been granted the power to make only nonbinding recommendations “respecting the treatment or care of a patient”[96] or where a violation of a patient’s rights has been determined.[97] Some foreign jurisdictions have given MHTs the authority to make nonbinding recommendations regarding a course of treatment, including the power to order the revision of treatment plans in certain circumstances[98] and to order a psychiatrist to make a CTO or to vary a CTO.[99]

While nonbinding recommendations may potentially lead to the reconsideration of a course of treatment or to changes in hospital policy, noncompliance with such recommendations has no legal consequences. Thus, these examples are quite limited in scope. This is more evident when contrasted with the authority to impose binding conditions that review boards have in Canada. In Mazzei, the SCC recognized that review boards could issue binding conditions regarding the supervision of a patient (but could not prescribe or impose treatment) given their supervisory role and discretion to impose conditions when making orders under section 672.54 of the Criminal Code.[100] Although the distinction between making supervisory orders regarding treatment and making orders prescribing treatment is not always easy to draw, the SCC appears to be taking an approach that balances the need to allow deference to the opinion of health professionals with the need to ensure the purposes of the legislation are met. It could be argued that perhaps some of the purposes of mental health legislation are similar to the ones pertaining to review boards and may therefore support a broader role for MHTs.[101] Nevertheless, Mazzei would not apply to MHTs given their different role and their lack of power to impose conditions, as discussed above. Left with no source of jurisdiction to issue binding conditions regarding supervision or to make any type of recommendation, some MHTs may attempt to scrutinize treatment through the subtle persuasion of medical practitioners appearing before MHTs.[102]

In sum, neither a breach of Charter rights nor discrimination in the provision of services under the Ontario Code would give an MHT jurisdiction to provide a remedy not contemplated by its statutory authority. Thus, MHTs are likely to continue to refuse to entertain requests to order treatment following Conway.[103] For example, in Re A. the CCB has held that it has no jurisdiction to assess the placement of a fifteen-year-old involuntary in a psychiatric intensive care unit.[104] The CCB also found it had no jurisdiction to attach treatment conditions to its decision confirming a minor’s involuntary admission where no local adolescent psychiatric unit was available and where transferring the patient to such a unit out of town was not in the minor’s best interests because she would be separated from her mother and community supports.[105]

A more nuanced question is whether an MHT could review the conditions in a CTO that allegedly discriminate against the patient, either under the Charter or under human rights legislation (assuming the tribunal has jurisdiction to deal with one or both these grounds). Terms included in CTOs sometimes go beyond what is traditionally deemed to be medical treatment and may include housing, socializing arrangements, and even travel restrictions.[106]

Legislation protecting civil rights in other jurisdictions has been interpreted to allow restrictions on housing or socializing conditions in CTOs.[107] In Ontario, the CCB has held that it has no jurisdiction to review these types of conditions if they can be characterized as “treatment”. This principle applied to the terms of a CTO that required the patient “to have any visitors to his residence pre-approved by his landlord” or by the treatment team.[108] In another case, the CCB held that it had no jurisdiction to review the terms of a Community Treatment Plan (CTP) drafted under a CTO because the CTP itself constituted treatment; in the alternative, the CCB held that the CTP’s identification of treatment as “all oral/injectable psychiatric medication” was not too vague, but rather ensured flexibility for some treatment changes.[109] The CCB has also found housing arrangements contained in CTOs to be in accordance with the overarching principles of the Charter;[110] this ensures that CTOs may function as comprehensive and effective treatment tools. Such an interpretation has been found, in turn, to be less of an affront to a person’s dignity and to be closer to the purposes of the governing legislation, as it is less restrictive than admission to a psychiatric facility.[111] The underlying assumption holds that care in the community provides a higher degree of respect for individual liberty and autonomy than care in an institutional setting.[112]

This does not preclude a successful Charter or human rights challenge to the conditions of a specific CTO. An MHT may find that specific terms discriminate against the patient, or constitute an unreasonable affront to the patient’s dignity or Charter rights, when the terms subject to the challenge can be separated from the CTO without impairing its overall effectiveness.[113] Striking down those terms would support the least restrictive principle that governs most modern mental health legislation, and would be in accordance with a Charter analysis.

B. Lack of Community Accommodation Leading to Involuntary Admission

Evidence before MHTs sometimes discloses that an involuntary patient would be able to manage in the community if appropriate accommodation and treatment were available. In other words, the patient would not need to be committed but for the lack of resources in the community;[114] committing such a patient conflicts with the least restrictive principle underlying modern mental health legislation. For example, there has been some judicial commentary supporting the Ontario MHT’s discretion to decide whether to confirm civil committal, even when the criteria for involuntary admission are met,[115] though the scope and application of this discretion remain unclear.[116] Therefore, an MHT could be faced with a request to refuse to confirm the civil committal of a patient in the case where committal is the result of an allocation of services and facilities that discriminates against the mentally ill under human rights legislation or the Charter. It is, however, unlikely that an MHT would exercise its discretion to release an involuntary patient who is likely to cause harm to himself or another person.[117]

C. Transferring Patients

Conway recognized that review boards were able to influence clinical decision making when ordering a patient’s transfer to a health facility, pursuant to their power to impose terms and conditions. Until recently, MHTs had no statutory power to order transfers of patients, at least not without the consent of the receiving facility.[118] The recent amendments to Ontario’s Mental Health Act, which allow a facility or patient to apply to the CCB for an order transferring the patient to another psychiatric facility, revisit the scope of authority given to MHTs in terms of clinical decision making.[119] In effect, Ontario’s MHT has been given the authority to decide the place and level of security under which some patients will be receiving treatment. This is a significant decision-making power, which breaks with the traditional role of MHTs as enforcers of negative rights, in that it not only deals with the fundamental liberty right of the patient but is inextricably linked to his or her prognosis and reintegration into society. In a similar vein to review boards, which have been found to have the authority to include express terms relating to interim custody and discretionary privileges pending transfer of a patient detained in a psychiatric facility,[120] the power to transfer requires MHTs to share responsibility for co-managing hospital resources when called on to adjudicate a transfer request.

Theoretically, patients in a high-security health facility could make a human rights claim because they cannot be transferred to lower-security environments because of the underfunding of the latter and because forensic patients are generally given priority, in effect precluding the involuntary patients from access to the “cascade” system that is otherwise available. Furthermore, the right to access the patient’s family and to socialize in general, and the availability (or lack thereof) of cultural, religious, or language services are arguably factors that the CCB could consider in making a transfer application.[121]

The power to transfer appears to be a promising tool to further the right to adequate health care of mentally ill patients appearing before MHTs. Its potential, however, does not derive from constitutional or quasi-constitutional sources of law but from the lawmaker’s decision to give such jurisdiction to the tribunal in question.

It is uncertain whether similar transfer provisions will be replicated in other jurisdictions, and if so, what the extent of the discretion given to the tribunal to impose any terms and conditions on the transfer will be. However, it is clear that the power to order a transfer may open the door to seeking remedies addressing a patient’s right to adequate mental health care.

Conclusion

The recent SCC jurisprudence appears to “judicialize” the role of administrative tribunals by recognizing their authority to apply constitutional and quasi-constitutional law. However, MHTs are creatures of statute, and the remedies they can award are limited to their jurisdiction.[122]Martin, Tranchemontagne, and Conway underscore the jurisdictional limitations of administrative tribunals. In fact, these cases support a cautious approach toward expanding the jurisdiction of tribunals.[123]

The jurisprudence of the SCC also highlights the inherent institutional limitations of adjudicative agencies and the unreasonable expectations placed on them. Adjudicative agencies are institutionally ill-equipped to deal with constitutional or quasi-constitutional legislation. The expectation that unrepresented parties before MHTs may raise human rights or Charter claims is unrealistic, as is the prospect that tribunal members may do so. This creates legal uncertainties regarding the right of parties to raise such arguments at an appellate level. There is also concern that allowing tribunals to raise such issues of their own accord may affect the fairness of the proceedings.[124] To the lack of institutional resources and expertise one must add the risk of losing sight of the purpose for which both the tribunal and the applicable legislation were created. Providing a speedy and accessible forum for adjudication, one of the foundations upon which most modern mental health legislation and MHTs are established, is impacted by long, protracted, and complex proceedings. Paradoxically, this runs contrary to international human rights standards requiring a speedy review of the decision to restrict the rights of a mentally ill person,[125] as was made evident by the dissent in Tranchemontagne:

Imposing Code compliance hearings on the SBT will similarly and inevitably impact its ability to assist the disabled community it was established to benefit in a timely way. It will be difficult to explain to the thousands of disabled individuals waiting for their appeals to be heard—many without any interim support—that there is any public benefit in the SBT hearing a complex, lengthy, and inevitably delaying jurisprudential issue with no precedential value. That is the real access issue in this case.[126]

Furthering positive rights or entitlements via the use of the Charter or human rights legislation before MHTs also raises concerns that administrative tribunals may become de facto resource-allocation agencies, a role they were not originally intended to fulfill. It can also result in privileging the claims for entitlement of certain parties over similar or stronger claims of other individuals:

For a court to order improved conditions or set specified standards according to which an institution ought to be run, or for a court to demand that a state authority establish certain provisions in order not to infringe the constitutional rights of its citizens for treatment in “least restrictive” settings, effectively constitutes a legal arrogation of discretion in choices as to allocation of funds amongst competing priorities.[127]

These issues highlight the limitations of rights- or entitlement-based strategies in providing authoritative solutions. The language of rights lends itself to different and contradictory claims. The prioritization of each claim is therefore a source of continuing debate, one for which various societies have given dissimilar responses at different points in time.

Nevertheless, MHTs are still the most common legal forum available for the mentally ill to raise constitutional and quasi-constitutional challenges that may result in advancing a right to adequate health care. Furthering access to justice in this context creates a dilemma that has no easy resolution. In the context of review boards, the SCC has attempted to reach a compromise by acknowledging their supervisory role and power to impose conditions regarding supervision. Barring statutory amendments, this option is not available for provincial MHTs, which are only left with the power to interpret legislation in accordance with Charter values and to make nonbinding recommendations dealing with treatment and other matters, such as hospital policies and CTOs. The latter functions correspond to a model that incorporates both adjudicative functions and the powers of a commission of inquiry.[128] It is a model that can influence the provision of adequate health care; the model should be carefully delineated with due regard to the rights and responsibilities of health practitioners, to avoid the risk of administrative agencies becoming de facto executive agencies or losing their authority, or both. The power to order the transfer of patients given to Ontario’s MHT may also become a further tool to advance claims to adequate health care.

It remains to be seen whether the practices and powers described above mark a new trend toward a greater and different role for MHTs, or whether these will remain isolated examples arising from the need to deal with particular regional concerns or conditions. What is certain is that legislative action continues to be essential for a comprehensive re-examination of the role and jurisdiction of MHTs and any reprioritization of the rights of the mentally ill.