Deaf, mentally ill man ‘warehoused’ in maximum-security institution for nearly two decades under Ontario’s Mental Health Act OurWindsor.Ca
By Wendy Gillis
December 23, 2014
For nearly two decades, a deaf, mentally ill man has sat in an Ontario maximum security psychiatric institution, held under the province’s Mental Health Act a law never intended to permit long-term detention.
Despite repeated, increasingly adamant recommendations by psychiatrists and mental health experts that he be moved to a less secure facility or even released into the community the man has languished in Waypoint Centre for Mental Health Care (formerly known as Penetanguishene) for 19 years.
As one psychiatrist put it, the man, 56, is being “warehoused.”
All the while, the patient a convicted pedophile who can only be identified as P.S. because of a publication ban has had inadequate access to interpretation services, hampering his rehabilitation, the Court of Appeal for Ontario ruled Tuesday.
In a decision lawyers and mental health advocates call “landmark,” the court made a significant change to Ontario’s decades-old Mental Health Act, modifying its wording to prevent other inmates from indefinite detention.
The 1990 legislation allows for a mentally ill person who poses a danger to themselves or others to be detained. Involuntary detention, as its known, is intended to be used in urgent situations where a mentally ill person requires immediate detention.
In the vast majority of cases, the detentions are for only a few days; 80 per cent are for less than a month, according to the latest statistics.
But a small percentage is for detentions longer than six months, and patients can technically be held indefinitely because of a provision allowing the detention to be repeatedly renewed.
In a lengthy decision written on behalf of the court, Justice Robert Sharpe placed a six-month limit on a Mental Health Act detention. A 12-month suspension had been set on the change, giving the provincial government time to respond.
“The court has sent a message that if the Mental Health Act is going to be used for long detentions, there are serious problems,” said Mercedes Perez, of Swadron Associates, who represented P.S. alongside Karen Steward.
The decision was made in part because the MHA board which decides who can be detained under the act does not have sufficient powers to ensure the well-being of someone held for a lengthy period.
For instance, in P.S.’s case, the board repeatedly stated he should be kept in a lower-security institution, but did not have the legal authority to force institutions to care for him; over the years, several low-security institutions declined to accept P.S.
In contrast, the Ontario Review Board, which oversees cases where an inmate has been found not criminally responsible (NCR) for a crime, has the legal authority to force an institution to accept a patient.
According to the judgment, P.S. was the victim of physical and sexual abuse by close relatives as a child, and lived in several foster homes since the age of 3.
His detention began in 1992, when he was sentenced to 45 months in jail for the sexual assault of a 12-year-old boy. He served his sentence at Kingston Penitentiary, receiving no therapy or counselling during his prison term, according to the ruling.
Realizing that P.S. a diagnosed pedophile may be a risk to society, the MHA board decided to detain him when his sentence was completed. He was transferred to the maximum security section at Waypoint Centre.
Year after year, the board decided P.S. should remain detained under the act, but not kept in maximum security.
The board, which includes psychiatrists and lawyers, also often expressed “serious concerns” that he did not have access to qualified signers to assist in assessments and treatment, the ruling notes. In 1998, one doctor said P.S. still had no insight into his illness, or that it was against the law to have sex with children.
“The situation is complicated by the fact that there is a communication problem at this facility, there being no monies available for a signer,” the doctor wrote.
In 2002, noting P.S. may be losing some of his sign language skills, board members said a casual conversation interpreter should come in to converse with P.S. Sharpe notes that did not happen until 2007.
In 2009, after a certified American Sign Language trainer was brought in to work with P.S., mental health workers noticed the man’s skills, engagement and disposition improved.
“Had efforts been made to accommodate him immediately following his committal in 1996 by providing interpretation services during therapeutic, educational and recreational programming, his well-being and overall rehabilitative prospects might have been markedly different,” Sharpe wrote.
Laurene Hilderley, spokesperson for Waypoint Centre for Mental Health Care, said in an email she couldn’t comment on the care of a specific patient “due to our obligations under privacy legislation.”
“In general, we can say that our patients have individualized treatment and care plans to support their specific needs. We are committed to high quality, patient-centred care and supports,” Hilderley said.
“Our next steps are to review and digest the lengthy decision and understand what it means for our hospital.”
One board member, upon seeing P.S. was being held year after year under the act, noted: “This patient has in effect been given a ‘life sentence,’ which is not permitted.”
The appeal court noted that the indefinite detention and lack of meaningful access to an interpreter constituted “prolonged and serious breaches” to his Charter rights, including freedom and equality.
Sukanya Pillay, executive director of the Canadian Civil Liberties Association, an intervenor in the case, said the ruling sends a message that Charter rights need to be ardently defended, particularly when the person has a disability.
“It’s probably rare we hope it’s rare that somebody would be detained like this, for 19 years. But even one day of Charter breaches is not something that we want in our society,” she said.
Perez said she will now wait to learn if the decision will be appealed, which will in turn decide what happens next for her client, who remains at Waypoint Centre.
Reproduced from http://www.mykawartha.com/news-story/5230791-court-puts-6-month-limit-on-detentions-under-mental-health-act/