At one time, there were a dozen mental health hospitals owned and operated by the Ontario government. With their devolution, a safety net for difficult to manage patients disappeared. The pressure on public hospitals is now acute to admit such persons under the authority of the Mental Health Act.
Emergency rooms often have police with persons in custody suffering from serious mental illnesses and addictions, waiting to be assessed, in attempts to divert them from being taken to jail.
How should hospitals prepare for these increasing demands on their facilities? Some countries have receiving centers to provide short-term admissions and treatment for urgent cases. These could be standalone structures or a designated part of a hospital.
Years ago, numerous supportive houses existed under the Homes for Special Care Act to which patients could be transferred from mental hospitals as a step down, with supervised care, in an attempt to gradually return psychiatric patients to their communities.
Hospitals are major players in the mental health system. Their psychiatrists express ongoing concerns about the overly legalistic aspects of legislation. How do we make changes?
Fifty-six years have passed since the Mental Health Act was first introduced in Ontario. The Act provided for involuntary commitment of those who were deemed to be a safety risk to themselves or others, which remains comparable to today’s legislation. While there have been both significant and minor updates over the years, it has not been fully opened for reform and modernization in many years. This represents a missed opportunity for patient-centric and recovery-oriented reforms that enable a fulsome continuum of care that better families and communities in Ontario.
Primarily driven by concerns related to public safety, patient outcomes, efficiency, community treatment, addiction, overdoses, and obstacles to appropriate civil commitment, here is a proposal to modernize the law in a way that will be responsive to these dynamic challenges. At its core is a paradigm shift away from the legalistic “dangerousness” standard for involuntary civil committal towards a more clinical “need-to-treat” standard. Under the dangerousness standard, there is a need to determine whether someone is a threat to themselves or others. This is less readily ascertainable for a medical professional than whether someone needs treatment and how acute that need is i.e., the need-to-treat standard. Accordingly, the dangerousness standard, operating alone, falls short mainly in two ways: people are not identified as needing treatment that they desperately do, and people are not identified as dangerous who in fact are, dangerousness in the mentally ill being very difficult to predict.
Community and patient safety, particularly in shared spaces such as public transportation, must be included in the context of any legislative modernization. Recently, for example, there has been a sharp increase in violence, open drug use, and individuals in crisis or psychosis on city streets and public transit. This appears to correlate with a worsening mental health crisis associated with the COVID-19 pandemic. These are individuals with complex mental health challenges who are disconnected from our health care system and therefore are not receiving the help they need. In many cases, their families try to get them help in vain, unable to convince their loved one to attend a healthcare service voluntarily or the system to hold them for treatment that may drastically improve their lives and outcomes. These issues are certainly not limited to larger cities either, with rural or remote towns reporting some of the worst crises.
Closely related to patient safety and well-being is capacity to consent and patient outcomes. While informed consent and the right to refuse treatment is a cornerstone healthcare right that should be protected, in extreme cases some individuals, families, and the medical system would greatly benefit from a limited ability to override capacity and impose treatment. Historically, the Mental Health Act permitted the review board to make such a treatment order. Compassionate intervention notwithstanding capacitymay be appropriate for severe high-acuity disorders that significantly impair a person’s ability to make self-care decisions but that may not create an imminent danger or impair the person enough to vitiate legal capacity, such as substance use disorders (SUDs), eating disorders, or untreated bi-polar disorders, to prevent continued deterioration of the person.
Treatment capacity and efficacy are sometimes unnecessarily impaired by processes requirements under the existing legislation. One example of this is Ontario’s prohibition of treatment pending appeal; formed patients without capacity can remain in a bed for months while appeal after appeal is filed on their behalf, and doctors are not allowed to treat them until the final appeal is resolved. At any given time, 70-100 Ontario patients determined by the Board to be incapable of consenting to treatment are being held without treatment pending appeal, representing at least $8M per year in direct costs just for the hospital beds. There are also additional costs from the disease burden increase and worsening prognoses related to the deleterious effects of failing to treat disorders in a timely fashion. There are opportunity costs as well; for every untreated person waiting in a bed pending their appeal, there are multiple people on a waitlist for that bed who are not being treated. On average, 10 people could be treated for every patient whose treatment is delayed pending appeal.
Appeals from the Board are rarely resolved in favour of the patient. Out of 158 cases in 2018 and 2019, only one appeal resulted in the CCB decision being overturned. It takes on average 8 months to exhaust the appeal process but only 3-5 weeks to treat and release the patient. The result is thousands of treatment spaces lost, millions of dollars wasted, and most importantly, needless long-term suffering of patients experiencing severe but treatable mental health challenges. Many of these patients are in our public hospitals.
The supply of narcotics in the illicit market has become far deadlier with the introduction ofpotent opioid analogues such as fentanyl and dangerous contaminants such as xylazine. As a result, the physical and mental deterioration of people who use drugsoccurs much faster and with a greater risk of negative outcomes, including psychosis and death. Many families are losing loved ones in their prime, with the highest rate of overdose deaths occurring in individuals in their 30s, and suicide being the second leading cause of death for those aged 15-34. As we look at ways to modernize the law, we must also consider how to address life-threatening disorders and dependencies on deadly substances.
Most overdose deaths occur in a home the person is either renting or owns. Last year, more than one third of all overdose deaths occurred in the construction sector. As such, the points of interaction with our public health care systems are multifaceted, and so we must also consider the role various professions can play under the legislation, and how to get individuals in front of the right professionals at the right time, and ultimately on a path to treatment and recovery. Changes could explicitly be expanded to include the identification and treatment of addictions.
Ontario has just 1.4 acute care beds per 1000 people, the worst of any province. Nine percent of patients who are discharged from the ER return within 30 days. Treating people in the community is therefore crucial to maintaining hospital capacity.
Community treatment through ACT and FACT outside of the hospital is an important and often overlooked component of addressing treatment capacity and efficiency. Each ACT team costs about $1.3M per year but saves about $3.7M in cost avoidance, primarily by reducing bed days by up to 90%. However, ACT and FACT teams are too sparsely distributed and underfunded, with ACT teams often not receiving their full allotment of funding from their base hospitals. New York State has one ACT team for every 143,000 people, Ontario has one ACT team for every 196,000. We would need 30 additional teams to have a similar ratio as New York, which could generate an anticipated net savings of $72M for the province.
Supporting patient rights and access to justice is a key component as one looks to modernize the Act; reforming and expanding the role of rights advisors; codifying the right for the accused to be assessed and receive a report for the purposes of criminal defense; improving access to appropriate treatment; and strengthening the responsibility that health care facilities have for treatment and the care of patients, visitors, and for community safety.
Reforms could also seek to help patients get better or improve as much as possible through all stages of recovery, instead of merely managing symptoms and reacting mainly to immediate concerns.
A new Act could explicitly allow for compassionate intervention notwithstanding capacity for those who have lost control over their lives because of a severe disorder that significantly impairs their ability to make self-care decisions, such as substance use disorder, eating disorder, or an analogous acute psychiatric disorder, and are causing serious damage to themselves. A physician, police officer, immediate family member, or primary caregiver could apply to the Consent and Capacity Board (CCB) for a treatment order and it would be granted where it is shown, amongst other criteria, that the applicant has tried everything else to get the person into treatment, and that the proposed course of treatment is reasonable and likely to prevent or reverse the deterioration and/or reduce the risk of bodily harm to themselves or others.
Changes could enhance aftercare and community integration. In addition to making community treatment orders binding, all patients leaving a psychiatric facility who are not subject to a community treatment order or plan, could be provided with a community aftercare plan so that they have an actionable strategy to continue receiving services and to remain connected to supports. Further, when medically necessary, patients could be connected to other providers to prevent unsafe or clinically unsound disruptions to any ongoing treatments.
Deprescribing principles and protocols couldbe codified in the new Act so that physicians providing medications for a psychiatric purpose would be required to conduct periodic reviews and to plan a deprescribing regimen, where appropriate. Changes under this part could also require physician oversight and supervision of any entity providing narcotics, imposing additional supervisory rules on the prescribing of all such narcotics generally. An example highlighting the importance of this is where a patient is prescribed a medication and wishes to renew, stop, review, or alter it but cannot get an appointment to see the prescribing physician within a reasonable time frame. Required protocols could also include providers of methadone and narcotic replacement services (i.e., safer supply) using a tapering-off protocol in line with best practices to transition patients to Suboxone or Sublocade and ultimately to recovery-based treatment. Ontario is the only province that continues to list Sublocade and Suboxone as a limited use drug and that relies primarily on methadone for opioid agonist therapy.
A key focus of the moderation could focus on driving efficiencies and improving system capacity.
Reducing processes could limit time spent on administrative duties and permit more time for care. These reforms could continue the need for frequent renewals of involuntary patient status, where appropriate.
Issuing community aftercare plans in every case where a patient is discharged without a community treatment order, except under certain circumstances, could institutionalize access to community-based treatment and supports for individuals as they reintegrate back into communities, reducing readmissions to hospitals and patients’ regression.
Further, reforms such as allowing treatment to begin when decisions are initially made by the Consent and Capacity Board instead of only at the end of an appeal process, would not only save millions of dollars annually but would free up desperately needed capacity in our inpatient mental health care units. The creation of Indigenous Consent and Capacity Boards should also be considered to provide better protections for Indigenous patients.
The rights of Indigenous persons should be provided with an extra layer of protection because of the history associated with forced medical procedures; these changes would establish one or more Indigenous Consent and Capacity Boardsand require that involuntary Indigenous patients are provided with culturally safe and appropriate care that is proximate to their home or community. There are also provisions requiring best efforts to be made to provide other cultural groups with culturally safe and appropriate care were requested by the patient.
A significant challenge involves the role of the police under such legislation. The police have the authority to bring a mentally ill person acting in a disorderly manner to a hospital rather than to a jail. Often, there are long delays before this individual is assessed. Often, hospital security services are outsourced and these staff are told not to take custody in such circumstances.
In addition, when police are called to an emergency, it would be helpful in many cases if they were aware whether there was a significant mental illness involved. This would require very limited access to health information.
There is also a significant need for a comprehensive statutory framework for community mental health, addressing oversight and accountability, funding models, roles and authority of mental health professionals, licensing and inspection of facilities/housing, and so on. Many of these can be extensions of hospitals.
There are excellent precedents in other jurisdictions. These should be considered for application here.
Gilbert Sharpe is a partner in the Health Law Group at Fasken Martineau and the former long-time Director of the Legal Branch of the Ontario Ministry of Health and Long-Term Care. He has published several books on health law as well as hundreds of articles during his distinguished 30-year career in legal practice and advisory roles.
Healthcare Management Forum 