Onus should never be on the not-criminally-responsible accused to notify board of restriction: ORB
A recent decision by the Ontario Review Board that it must be notified when not-criminally-responsible accused persons in psychiatric homes are in locked seclusion for more than seven days will settle major disputes about whether hospitals can seclude people without informing the ORB.
Locked seclusion has significant harmful physical and psychological consequences. Christopher Ducharme argued that seclusion is a form of “environmental restraint” and should only be used as an emergency containment measure because seclusion causes severe psychological harm.
“This is a helpful decision and it’s an important decision because it puts the hospitals on notice that the review board must be notified when people are secluded in psychiatric hospitals under the jurisdiction of the Ontario review board for longer than seven days,” says Anita Szigeti, the lawyer for the accused and principal lawyer at Anita Szigeti Advocates.
The ORB decided on locked seclusion many years ago as some hearing panels had given the same verdict. However, Szigeti says ORB was not respecting that approach and not reviewing long periods of seclusion as a significant restriction of liberty. Thus, some hospitals took the position that the ORB does not have to receive mandatory notice of episodes of seclusion regardless of how long, and the review board lacks the jurisdiction to review the situation.
The recent ORB decision resulted from Ducharme's case. He was detained as NCR at Waypoint Centre for Mental Health Care in January 2020. Ducharme was found NCR because of a mental disorder in Quebec for failing to comply with recognizance, obtaining food fraudulently, possession of stolen property, car theft, reckless driving, assault, attempting to leave the scene of an accident and death threats in 2015 and 2016.
He was transferred from Quebec to Ontario under the Attorney General of Ontario’s consent for interprovincial transfer in January 2018 and was detained at Ontario Shores Centre for Mental Health Sciences under the jurisdiction of the ORB in April 2018.
In October 2018, the ORB ordered Ducharme’s transfer to Waypoint with privileges limited to attending within or outside the hospital for necessary medical, dental, legal or compassionate purposes. On January 29, 2020, the ORB ordered that Ducharme’s detainment at Waypoint. He was placed in locked seclusion by Waypoint for 317 days from June 2020 to April 2021. Ducharme notified the board of his seclusion in January 2021, saying the seclusion was a significant increase on the restriction of his liberty, and the ORB should convey a hearing.
Ducharme agued that “the onus should never be on the accused person to bring his situation to the attention of the review board, as Mr. Ducharme was left to do here. The whole system is in place to avoid vulnerable mentally ill persons, particularly those in locked seclusion, from having to bring an application to have significant increases on the restriction of their liberty reviewed.”
The motion before the ORB was that Waypoint failed to provide formal notice of a hearing for the increase on Ducharme’s seclusion, thereby violating s. 672.56(2) of the Criminal Code and the failure to provide mandated notice of Ducharme’s seclusion resulted in more significant restrictions on his liberty without a review by the ORB.
Waypoint defended its position, saying Ducharme requires seclusion for his safety and others for more than seven days and informed the ORB informally under the Centre for Addiction and Mental Health v. Young, and Campbell (Re) s. 672.56(2) notice. Waypoint said that Young (Re), 2011 ONCA 432 clearly outlined the board’s lack of jurisdiction to the issue of seclusion and emphasized that the board cannot delegate the power to seclude a person when the board itself does not have authority to seclude a person.
“If the NCR accused is detained in a hospital by virtue of the board’s disposition (as is the case of the Applicant), the board has jurisdiction over that person and must exercise its supervisory role,” the ORB wrote.
The hospital failed to provide formal notice or a Campbell letter to the ORB for seven months until prompted by Ducharme’s actions, and the ORB wrote that the circumstances and length of Ducharme’s seclusion is prima facie evidence of a significant restriction of his liberties and the hospital should have issued a formal notice.
The ORB ordered a restriction of liberty hearing to review Ducharme’s period of locked seclusion from June 11, 2020, to April 24, 2021, saying, “the hospital’s failure to provide either notice pursuant to s. 672.81(2) or a Campbell letter effectively stripped the board of its ability to exercise its supervisory role and to ensure that the liberty interests of the NCR accused are met.”
Szigeti says the ruling does not go far enough because the ORB says in most cases, it is enough for a hospital to send a Campbell letter, instead of notice for mandatory hearing if someone is secluded for longer than seven days, and it is at the discretion of the accused to dispute the hospital’s characterization and ask for an early review hearing.
She says the request before the ORB was for a statutorily mandated notice to be given by the hospitals and a hearing by the ORB for every case of seclusion, and the decision could be problematic because some NCR individuals do not have lawyers and are vulnerable and secluded.
The board’s practice directive places an onus and the responsibility on the vulnerable, mentally ill and NCRs in seclusion to challenge the hospital, make written submissions and engage in prehearing conferences to make their case that they require a hearing on the issue of their seclusion, and that’s not fair to the accused, Szigeti says.
“There’s room to continue to improve how these provisions are interpreted, so that there’s a mandatory review of periods of seclusion excess of seven days every time and not just the need to give notice but notice that results in a hearing.”