Editorial: How long is too long?

If it’s OK to have an accused wait six days for a mental-health bed, as the Ontario Court of Appeal determined in a ruling on May 24, would even longer be fine as well?

That’s one of the questions surfacing from the appeal court’s ruling in Centre for Addiction and Mental Health v. Ontario.

In that case, the appeal court was dealing with CAMH’s challenge of Ontario Court Justice Mary Hogan’s order that the hospital or a designate accept the accused, Brian Conception, for treatment forthwith.

This was despite evidence that the facilities couldn’t accommodate him for six days due to a lack of beds and the Crown’s insistence that forcing them to accept Conception would simply deprive someone else in similar circumstances from getting treatment.

After Conception received treatment, the charges against him were eventually stayed.
To some extent, Hogan emphasized the overall need for better health care in issuing her order.

“We have a mental health system here that is supposed to treat people and you know ordering treatment orders is one of the most serious things we can do in terms of the mental health system and yet we cannot seem to provide a bed for them to get treated in and that is totally unacceptable,” she noted.

The appeal court, however, took a different approach to s. 672.58 of the Criminal Code that allows for treatment orders for up to 60 days.

“It is worth mentioning at this point that the principal function of a s. 672.58 order is not medical but legal,” wrote Justice Robert Blair on behalf of a unanimous appeal court panel.

“Treatment orders are made for the sole legal purpose of making an accused fit to stand trial on criminal charges. They are not intended to be therapeutic or for the medical benefit of the unfit accused in the broad sense.”

After considering the constitutional issues around sending someone to jail against the difficulties of enforcing treatment at hospitals with no beds, the appeal court came to the fairly reasonable conclusion that a six-day wait wasn’t necessarily a major problem from a legal perspective.

“Here there was no evidence that a six-day delay in starting treatment might impair the likelihood of Mr. Conception’s becoming fit to stand trial within the 60-day statutory window provided in s. 672.59(2),” Blair wrote.

But the ruling leaves the question as to what an acceptable wait for treatment might be. If six days are fine, what about a month?

The appeal court hinted that it depends on the circumstances, but given the very real challenges around access to treatment Hogan referred to in issuing her order, it’s clear that judges in places like the Old City Hall mental health court want more certainty.

Hogan, then, has reminded us of a significant issue that the health system needs to address.
— Glenn Kauth

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