Law Times

PAGE 2 Lawyers disappointed with ruling on sending mentally ill to jail NEWS L BY SHARON HO For Law Times hospital administrators can turn away accused ordered for treat- ment if no beds are available. In Centre Mental Health v. Ontario, the appeal court accepted CAMH' argument that it does its best to find forensic beds for the mental- ly ill who are under court order to go to the hospital. But judges can't insist that overcrowded hospitals provide a bed. Consent from the hospital is necessary to ensure it can carry out the court order. The lack of beds means the accused will go to jail or police holding cells while they wait for a place at the hospital. "One of the things that this for Addiction and s case does is refocus the way many of us think of the mentally awyers with mentally ill clients are disappointed with an Ontario Court of Appeal ruling that ill in criminal courts and how the courts deal with them," says Daniel Brodsky, a crimi- nal defence lawyer in Toron- to. Brodsky represents clients with mental-health issues be- fore administrative tribunals and in appellate proceedings. "What the judge says is we're not talking about men- tally ill people and their right to immediate treatment," says Brodsky. "What we're talking about is how do we process mentally ill people in the criminal courts? In that con- text, if it' mentally ill individuals like sausages, then they can wait a little while as long as there' s about processing no evidence that waiting a little while is going to cause them exceptional discomfort." Brodsky believes in treat- s Daniel Brodsky believes in treating mentally ill offenders first. ing mentally ill offenders first. He found the ruling unsatisfac- tory because the court recogniz- es a crisis in mental-health care for accused criminals but does nothing about it. The appeal arose in the case of Brian Conception. On April 13, 2010, Ontario Court Justice Health Centre Penetanguishene until a bed became available. CAMH appealed on the ba- sis that Hogan's order "requiring Conception ended up in the hallway of the Mental said Conception should be "be taken directly from court to the designated hospital and from hospital directly back to court. Accused is not to be taken to a jail or correctional facility un- der any circumstances pursu- ant to this order." Mary Hogan found him un- fit for trial. She was, accord- ing to the appeal court rul- ing, among the judges at "102 Court — the mental disorder court" at Old City Hall in To- ronto, who were frustrated with the lack of beds for the mentally ill. Hogan sent Conception to CAMH, or its designate, for treatment despite evidence it wouldn't be able to treat him for up to six days. Hogan' s order treatment to be conducted at CAMH or designate (preferably Oak Ridge) was made without the necessary consent of CAMH as required by s. 672.62 of the Criminal Code and in circum- stances where the hearing judge knew there were no beds avail- able." with an additional 16 to open this fall. According to Dr. Sandy Simpson, the person in charge of CAMH who testified at the ap- peal court, the demand for beds is always greater than the supply. The problem isn't a shortage of beds but a matter of when one becomes available. "Everybody who needs a bed CAMH has 165 forensic beds gets in," says Simpson. "It may be that we don't have a bed today. The delay in getting a bed can " range from five days to a week. The wait times have decreased in the last two years because of improved efficiency and pro- ductivity, according to Simpson, who notes there are usually one to two mentally ill offenders in jail waiting for a bed. Court of Appeal justices Rob- ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • More than 26,000 lawyers • More than 9,300 law firms and corporate offices • Perfectbound • Published December each year On subscription $72 P/C 26089 ISSN L88804-559 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. Includes lists of: • • • • Federal and provincial judges Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions The Institute of Law Clerks of Ontario Small claims courts • Miscellaneous services for lawyers Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST www.lawtimesnews.com OLPB - 1-2 page 4X.indd 1 1/20/12 10:42 AM Fax and telephone numbers, e-mail addresses, office locations and postal codes ert Blair, Janet Simmons, and Al- exandra Hoy agreed that mental- ly ill offenders shouldn't go to jail because they usually can't get the psychiatric help they need there. However, Blair wrote in the ruling that "consent to treat a patient when a bed becomes available in six days time is not consent to accept the patient for treatment forthwith. The hear- ing judge erred in acting on the basis that the consent require- ment has been satisfied in these circumstances." But according to Michael Davies of Foord Davies LLP, the alternative of putting mentally ill offenders in jail is worse because their health can deteriorate. "When there' that they should be in hospital, a jail is completely the wrong atmosphere for them to be in," says Davies. He has had mentally ill clients s a court order wait in jail for more than 30 days but says the problem has got bet- ter over the last 10 years. Brodsky and Davies are both sponsibility to adequately fund enough beds so that the num- ber of people coming through the criminal justice system with mental-health problems have these beds," says Davies. "I'm disappointed that this s the government's re- decision seems to pit individuals against hospitals as opposed to dealing with the real problem of the funding of beds." In an e-mail, the Ontario Ministry of the Attorney Gen- eral noted "the Crown' in this matter is that s. 672.62 of " LT s position requires the consent of the hos- pital before a patient is referred pursuant to a s. 672.58 treatment order, is constitutional. the Criminal Code, which June 4, 2012 • Law Times frustrated the ruling didn't call on the Ontario government to provide more funding. "It'

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