The Law and Mental Disorders – A Balancing Act

The balance of individual constitutional rights against the legislative objective of providing medical care to individuals suffering from mental disorders can lead to curious results. One such result was illustrated in the recent appeal from the Ontario Consent and Capacity Board (the “Board”) to the Ontario Superior Court of Justice in Gradek v. Shafro.

Mr. Gradek “suffered from a schizoaffective disorder, a bipolar subtype with features of mania”. Mr. Gradek did not agree with this diagnosis and denied that he has a mental disorder. He was admitted to a psychiatric facility on an involuntary basis by means of a physician’s certificate under subsection 20(5) of the Ontario Mental Health Act (“MHA”). He was also found by his physician to be incapable of consenting to or refusing treatment for his disorder with anti-psychotic and mood stabilizing medications (subsection 4(1) of the Health Care Consent Act (“HCCA”)). Both of these findings were upheld by the Board. Mr. Gradek appealed.

Subsection 20(5) of the MHA sets out the conditions for involuntary admission of a patient to a psychiatric facility by a physician. Those conditions require that the attending physician, after examining the patient, be of the opinion that the patient is suffering from a mental disorder of the nature or quality that likely will result in serious bodily harm to the patient or another person, or result in serious physical impairment of the patient, unless the patient remains in the custody of a psychiatric facility.

The Board found that Mr. Gradek’s mental disorder would likely result in serious bodily harm or serious impairment to him. On the facts of this case, the Court did not agree. It agreed that Mr. Gradek suffered from a mental disorder but found that evidence of serious harm or impairment was insufficient. As a result, the Court granted the appeal with respect to the involuntary admission. The effect was that Mr. Gradek could not be held in the facility on an involuntary basis.

However, the Court did agree with the Board’s finding that Mr. Gradek was incapable of consenting to or refusing treatment in connection with his mental disorder. Under the HCCA, such a determination requires a finding that a person is not able to understand information that is relevant to making a decision about treatment and to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Based on Mr. Gradek’s diagnosis, the Court was satisfied that this test had been met. In these circumstances, a substitute decision-maker could make the decision to consent or refuse treatment on Mr. Gradek’s behalf. Unfortunately, he did not have a suitable substitute decision-maker (Mr. Gradek’s mother was a substitute decision-maker but appeared unwilling to continue in that role) *.

Mr. Gradek made it clear that if discharged, he would not take medication for his condition (not surprising given that he did not accept that he has a mental disorder). The net effect then of the Court’s decision is that Mr. Gradek could not be kept involuntarily but will not, at least for the time being, be treated for his disorder.

The decision illustrates how the Courts will jealously guard an individual’s s. 7 Charter right to liberty of the person by strictly applying legislation that may limit that right. In the proper circumstances, the limitation will be allowed. Those circumstances did not exist in this case. The effect of this decision though, is that a person deserving of treatment may not receive it. A price we pay for our constitutional freedoms or a hole in the constitutional/legislative framework? – depends in your perspective.

* The judge did posit that an option here is to arrange for the appointment of a new substitute decision-maker

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