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Mental health law evolving for patients, lawyers

Although mental health has been sheltered from public discourse for many years, this area of law has been changing significantly, creating many opportunities for advocacy, Toronto health lawyer Mary Jane Dykeman writes in Lawyers Weekly.

“Longstanding members of the bar have blazed a path from the earliest days, and a new generation of lawyers is also embracing the opportunity to improve the system,” writes Dykeman, partner at Dykeman Dewhirst O’Brien LLP.

Ontario’s Mental Health Act was amended in 2000, she writes, including broadening detention and admission options, and the creation of a community treatment order regime.

“The amendments arose in part from mental health inquests. For example, an inquest was held in the late 1990s into the death of Zachary Antidormi, a Hamilton boy killed by a neighbour with a serious mental illness who, according to the evidence, had trouble accessing mental health resources.

“The tragedy led to many changes, and the work of mental health services providers in this part of the province is ongoing in outreach to those with mental illness. As much as inquests are sometimes criticized for having little practical effect, this is one example where legislative policy change has made a difference,” writes Dykeman.

Another effective measure, she notes, is legislative change accompanied by the practical tools to de-escalate such situations in the first place.

“In June last year, Justice Frank Iacobucci was commissioned by then-Toronto police chief William Blair to prepare a landmark report. Justice Iacobucci’s Police Encounters with People in Crisis report examined how mental health services are delivered and the training of police. It followed a number of police shootings of individuals termed ‘persons in crisis,’ including those with a mental illness or in an emotional crisis,” writes Dykeman.

In addition, the Consent and Capacity Board’s mandate has also been broadened over the years, with its panels hearing appeals of particular changes of legal status under a number of statutes.

As Dykeman explains, although the Mental Health Act has rarely been amended over the years, Bill 122 — the Mental Health Statute Law Amendment Act, 2015 — was in second reading before the Ontario Legislature as of November.

“If enacted, it will introduce a new concept of ‘certificates of continuation,’ such that after three certificates of renewal have expired, an involuntary patient can only be detained at a psychiatric facility where a certificate of continuation has been issued.

“All said, mental health law is an evolving field which is bringing opportunities for lawyers, and for important social change,” she says.

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