Vol. 5, No. 4 - Psychiatric Survivor Archives of Toronto

BURDEN OF PROOF IS DOCTOR'S
LANDMARK DECISION ON
INVOLUNTARY
Thanks to the persistence of a
psychiatric inmate and his
lawyer, psychiatrists and
hospitals will now have to prove
inmates are "mentally disordered"
and dangerous in
order to keep them involuntarily
committed to psychiatric
facilities in Ontario. The inmate
is still locked up in Toronto's
Queen Street Mental Health
Centre, but he has made history
in becoming the first person in
the province to have an appeal
against his commital heard in
District Court.
In February, 1985, a 45-yearold
man we'll call Mr. A (his
name is withheld to protect his
privacy) appealed to the
Regional Review Board for
release from Queen Street,
where he was incarcerated for
"paranoid schizophrenia," the
most stigmatizing misnomer in
psychiatry. His appeal was rejected;
in its ruling, the board
concluded that he was "suffering
from a mental disorder ... that
likely will result in serious bodily
harm to (himself) or to another
person," which is the standard
laid down in the Mental Health
Act.
Mr. A appealed the board's
decision to the District Court of
the Judicial District of York,
where his lawyer, Carla
McKague, argued that it had not
been proved that he was, or was
likely to be, dangerous either to
himself or to others; his
commital, she contended, constituted
a contravention of the
Canadian Charter of Rights and
COMMITAL
Freedoms.
District Court Judge Hugh R.
Locke dismissed these
arguments and denied the
appeal; his ruling revealed his
belief in the medical model
espoused by the psychiatrists:
He hears voices commanding
him to do several things. One
of those commands is to
perpetuate violence toward
others ... that alone in my view
amounts to likely danger to
others. Merely because he
has not obeyed the the physician who signs the
commands is not the point. specificforms in question and
There is likelihood that It upon the hospital into whose
could happen. Doctors and custody the ... patient is taken."
mental health facilities exist Further, he stated, the standard
to try to cure people who suffer' of proof should be "a preponmental
infirmity. In the derance of evidence" instead of
process they may be obliged the "beyond a reasonable
to involuntarily admit adult doubt" standard applied in
parties in order to attempt the criminal cases.
cure. Doctors and those This decision means that docfacilitks
exist to protect invol- tors and hospitals must now be
untary persons from harming prepared to demonstrate to a
both themselves and others. review board that an inmate is
This appellant is such a per- dangerous and "mentally disson
... Mr. (A) is being treated ordered;" as in a criminal court,
fairly and properly.
the person is to be seen as
innocent until proven guilty.
However, Judge Locke also Until now, psychiatrists have
made an historic ruling - the been able to misinterpret "danfirst
of its kind in Ontario: the gerousness" and "mental disburden
of proof for involuntary order" as any behaviour which
commital, he said, "falls upon in their opinion is threatening or
strange. For example, studies
have shown that over 80 per
cent of commital forms contain
absolutely nothing to show that
the person is dangerous; the socalled
"evidence" has included
such entries as: "Very paranoid,
lacks insight," or "Wife doesn't
want him back," or even,
"Crying on phone."
Judge Locke's decision could
ultimately decrease involuntary
commitals in Ontario, which
totalled 10,565 between April,
1983andMarch, 1984, and
which for years have accounted
for roughly 40 per cent of all
admissions to the province's
psychiatric facilities in the province.
The court's ruling could also
mean that review boards, which
have usually rubber-stamped
psychiatrists' decisions about involuntary
commital and enforced
treatment, will start
examining the evidence more
critically. As a result, we may not
only see a decline in these practices,
but perhaps their longawaited
extinction.