The past few weeks have been eventful and full of discussions about mental health and justice, and voices are rising calling for more oversight of those found not criminally responsible and changes to the Criminal Code . But what is it really? Would legislative changes make it possible to avoid tragedies?
While murders have been committed in recent months by people released on conditions by the Review Board, it should not be forgotten that the association between violence and mental illness has not been demonstrated, on the contrary, people suffering from mental disorders being more often victims than perpetrators of violence.
The objective of this series of texts is to demystify the law and legal practices relating to mental health in order to put into perspective the use of coercive practices in psychiatry.
Mental health rights
The legal mechanisms relating to mental health date from the 1990s. It was through reforms to the Criminal Code (1992) and the Civil Code of Québec (1994) that the federal and provincial governments shaped the current law. In both cases, legislators were concerned about violations of the rights of people declared insane by a criminal court or placed under cure (interned) in hospitals. These reforms come after years of advocacy by groups like the Human Rights Commission, and research showing long-term deprivations of liberty.
In the wake of these reforms, the federal government created a section on mental disorder in the Criminal Code and entrusted the supervision and decisions relating to accused persons found unfit to stand trial or not criminally responsible on account of mental disorder to administrative tribunals, provincial review boards. The provincial government created two distinct mechanisms: guards, which allow a person to be detained against their will in a hospital, and the authorization of care allowing the imposition of treatment. The decision on custody is made by the Court of Quebec, while that on care is made by the Superior Court.
Both in Ottawa and in Quebec City, legislators are convinced that the fact that decisions will henceforth be made by the courts will make it possible to limit abuses and protect civil and judicial rights.
Coercive psychiatric practices
It must be said that the past of Quebec asylums is not glorious. Between the opening of the first asylum in 1871 and the beginning of the first wave of deinstitutionalizations in 1961, the number of psychiatric beds per 1000 inhabitants exploded and psychiatric stays were substantially lengthened.
Studies conducted at the time showed that people staying in Quebec asylums were forced to do so, free hospitalization practically did not exist there, and that the care there was rudimentary. During the same period, Quebec also held the record for the number of people declared insane by a criminal court and placed in detention.
Deinstitutionalization was announced as a turning point in the history of psychiatric practices in Quebec, with the development of community resources intended to put an end to decades of institutionalization. But the reality is quite different. Services in the community or at home are poorly funded and insufficient, to say the least. Social services, especially assistance to individuals and families, are now moribund.
While the number of hospital beds in psychiatry is often presented as insufficient, it is one of the highest in Western countries, with 2.5 beds per 1000 inhabitants in Quebec compared to 1.2 in Germany, 0.8 in France, 0, 3 in Canada and 0.2 in the United States. The public insurance plan practically only covers the costs related to medical consultations and medication, which makes psychotherapy largely inaccessible and gives little value to alternative practices.
The mental health care system has therefore not experienced the in-depth reform announced and, unsurprisingly, the use of coercion remains frequent there and the number of people in the judicial system continues to increase. Between 2015 and 2020, the number of applications for institutional custody and people under review board increased by 29%; the increase is 45% for treatment authorizations.
However, research shows that people in the mental health justice system live disproportionately in poverty, even in a situation of homelessness, and are multi-judicialized in mental health, but also in youth protection, criminal matters and housing. These judicial contacts are anxiety-provoking and impose significant constraints on people whose lives are dictated by multiple court orders. These findings are worrying and call into question both the objectives and the social impact of judicialization in mental health.
Read Tuesday: Law, justice and mental health (2) – The guards