Vol. 6, No. 1 - Psychiatric Survivor Archives of Toronto

provincial election. In 1986, wecan expect more court caseschallenging laws denying thevote to inmates and prisoners asunconstitutional.As of January 1, any personinvoluntarily committed to anyof the province's ten psychiatricinstitutions and psychiatricwards in general hospitals mustbe promptly informed of thereason for their committal. Ifyou are involuntarily committedand have never talked to arights advisor, contact thenearest community legal clinicor Attorney-General Ian Scott,who is responsible for the rightsadvisors.If you are in a provincialpsychiatric hospital, first callyour Patient Advocate.On September 18, 1985,Attorney-General Ian Scott andHealth Minister Murray Elstonannounced that inmates willhave more access to legal aid,including more lawyers torespond to notices ofinvoluntary committal andrenewal certificates; and moreinformation for all inmates oftheir right to a lawyer, a reviewof their committal by aregional review board, anappeal of any review boarddecision to a District Court, andlegal representation at reviewboard hearings.As a result of an historic courtdecision in February, 1985,psychiatrists and hospitals mustnow prove that a person suffersfrom a "mental illness" and isdangerous to himself or herselfor others before locking up theperson. Lawyer Carla McKagueargued on behalf of her client,who remains in Queen StreetMental Health Centre, that thepsychiatrists never proved hewas "mentally ill" or dangerous,and that his involuntarycommittal violated the Charter.In his decision, District CourtJudge Hugh R. Locke assertedthat the burden of proof forinvoluntary committal "fallsupon the physician who signsthe specific forms ... and uponthe hospital. .. ," and that thestandard of proof should be "apreponderance of evidence."(See "Landmark Decision" invol. 5, no. 4, p. 39.)you do sue for wrongfuldetention, and a court agreesthat your doctor was wrong torefuse to release you, you couldbe awarded substantialdamages.PHOENIX COMMENTSMichael Berman is alawyer and patients' rightsadvocate in Toronto. Lastfall, he forced Queen StreetMental Health Centre torelease a womanincarcerated during the 5­day "assessment" period.Under Ontario's MentalHealth Act, any doctor canorder the incarceration of aperson (for five days) for thesame reasons as those forinvoluntary committals:"mental disorder" that willcause or threaten to cause"bodily harm" to yourselfor others, and/or "lack ofcompetence" to care foryourself. Under the Act, theinmate can appealinvoluntary commital, butthe Act says nothing aboutthe assessment. In thisarticle, Mr. Berman tells usthe legal steps to take tochallenge the assessment;we believe it's the first timethat this legal strategy hasbeen used in Ontario.CHALLENGING THE "5-DAY ASSESSMENT"HOW TO FIGHT FORCEDINCARCERATIONby Michael BermanThere is a procedure whichmay be followed in cases ofinvoluntary incarceration undera five-day, Form 1 Assessment.The challenge to the hospital'sor doctor's authority arisesunder the Mental Health Act inits requirements to validate aForm 1 Assessment.During the period betweenadmission to hospital and theexpiry of the five-day period,inmates or their representativescan follow these steps:• Complete a Form 14, whichgives consent to releasemedical records to anotherperson, such as a lawyer oradvocate.• Fill out a Form 16:"Application to the RegionalReview Board." (Copies ofboth Forms 14 and 16 areavailable on request at thenursing station on the ward.At the top of Form 16, crossout the phrase 4pplicationToRegional Review Boardand write in: Application ToThe Treating Physician.Also, cross out the phraseThe Chairman of the ReviewBoard and replace it withthe name of your treatingdoctor. Give the form toyour assessing doctor withinthe five-day period, and tellthe doctor that thisapplication is being madedirectly to him/her, becauseyou're challenging his/herauthority to detain you underthe Mental Health Act.• If your doctor refuses torelease you, advise him/herthat the requirements of theAct must be strictly compliedwith and if they are not,you may start a civil actionagainst the doctor forwrongful detention.The goal is to makepsychiatrists think very carefullyabout their decision toincarcerate you or anybody elsein a psychiatric institution. IfMINISTRYOF HEAL TH BACKS DOWNLAWYER OVERTURNS DRUGGINGORDER AGAINST TWO CLIENTSTwo psychiatric inmates haverecently won the right to refuseto submit to forced drugging atOntario ins:itutions in whichthey were incarcerated.In both cases, the inmates arewomen who were involuntarilycommitted and subjected,against their will, to dangerousneuroleptic drugs; in bothcases, lawyer and inmates'activist Michael Bermanlaunched appeals on theirbehalf, and in both cases, theOntario government withdrewfrom the appeal proceduresbefore any court actions couldbe heard.One of the women, Mrs. J.,who was in Queen StreetMental Health Centre last fallon a voluntary basis, refusedthe drugs ordered by herpsychiatrist, Dr. A. Pospisil. Thedoctor's response was to ask theCentral Regional Review Boardto change the 81-year-oldwidow's status to involuntary;the board concurred.But Mrs. J., with Berman's