Mentally ill denied their rights: Judge

Languish in jail waiting assessment Asks province for more hospital beds

Justice Richard Schneider has been working in the mental health system for close to 30 years — first as a forensic psychologist in Calgary, then as a lawyer and now as a provincial judge at the mental health court at Old City Hall. Over the past five years on the bench he has grown increasingly concerned as he has watched mentally ill people who come into his court being sent to jail until there is a bed for psychiatric assessment or treatment. And sometimes that has meant patients are waiting in detention for three or four weeks or longer — a violation of a mentally ill person’s Charter and constitutional rights, according to rulings by the Supreme Court of Canada and the Ontario Superior Court.

“ I think it’s clear enough this lack of beds, the shortage of beds, is not a new thing,” Schneider said in an interview this week. “ I’ve been sitting on the bench for five years and it’s been there all five years, uninterrupted. As a lawyer the same was true. And again while things ebb and flow, it’s really just a question of how long is the list.”

Schneider is calling on the province to either stop pumping mentally ill people into the criminal justice system or inject more money for beds into hospitals like Toronto’s Centre for Addiction and Mental Health ( CAMH), which has 28 beds.

“ From the court’s egocentric perspective, what the court would like to have happen is this issue of waiting lists and delays in getting people in for assessment and treatments, we’d like those to disappear,” he said. “ So for our very immediate purposes, that would involve either fewer people coming into court or more beds being available.”

Schneider’s remarks come on the heels of an announcement by CAMH last week that the hospital had no room for any more patients from the criminal justice system who required psychiatric assessment or treatment and was shutting its doors — albeit temporarily. It was the fourth time in the past two months administrators have had to take such action. The Ontario Court of Justice judge is urging the Ontario health ministry to put more money into institutions like CAMH so they can meet their obligations to assess and treat mentally ill patients referred by the courts. And Schneider doesn’t want just a one- time fix. The ministry must be prepared to put more money into the system yearly to meet the growing demand of the mentally ill population in the criminal justice system, he said. Otherwise, the waiting lists and closings will continue.

There were 450 people in Ontario’s forensic mental health system in 1997; that has grown by about 10 per cent per year since then, said Dr. Howard Barbaree, CAMH’s clinical director of the law and mental health program. There are now more than 1,000 people in the system.

“ The answer at one level is very simple — the resources don’t match the demand,” Schneider said. “ Obviously, if CAMH had a couple of extra empty beds on reserve for emergencies nobody would be talking about a backlog. . . . I’m very concerned. When I order someone to be assessed, I assume it’s going to happen immediately, not that they’re going to be sitting in jail for three weeks.” But that’s exactly what happened to a client of Toronto lawyer Dana Garrick. The client was found not criminally responsible in early August for an alleged death threat against his mother. He was ordered to go to CAMH for an assessment within 72 hours, Garrick said. But there was no room for him and he spent three weeks languishing at the Toronto ( Don) Jail. The health ministry rejects Schneider’s call for more to be done. Spokesman Dave Jensen said steps taken last January will alleviate the lack of beds and assessment space for the mentally ill in the justice system, pointing to a $ 27.5 million investment in mental health that established five programs. These programs include a crisis response and outreach program, short-term residential crisis support beds, court support services, intense case management, and supportive housing for the mentally ill. Toronto’s share of that investment amounts to $ 10.5 million.

What’s more, Jensen said, a new fitness assessment facility in Brampton that can assess mentally ill patients from the courts should lighten the load. And three other fitness assessment facilities are to be established shortly in the GTA. The lack of beds for the mentally ill in the criminal justice system is not just a problem at CAMH. Nine hospitals across Ontario accept patients for assessment and treatment. Last week, one of them, the Royal Ottawa Hospital, also had a waiting list, leaving six patients in jail. Having mentally ill patients wait in jail for great lengths of time is unacceptable, Schneider said. “ I think the idea that you keep mentally disordered people incarcerated in jail while the objective of the federal legislation is to have them assessed and treated . . . one could say that we’re treating them in a medieval manner.” And when it happens it’s devastating for clients who are expecting to leave jail conditions for the hospital, lawyer Ted Kelly added. “ Some of my clients are really ill and don’t belong in a jail. They should be in a therapeutic environment like a hospital even if they are facing criminal charges. The government has to recognize the lack of

resources available to

these really unfortunate people.”

For Schneider, it’s a

frustrating situation.

“ For the most part,

these are people who,

in an ideal world, should have been looked after adequately by the civil mental health system and they slipped through the cracks and they end up in the criminal justice system. It’s frustrating then when you take someone with that sort of description and you see they’ve spent three weeks in jail before getting assessed. Spending three weeks in jail is more significant than most of the sentences that are handed out in provincial court.”

Schneider isn’t sure the health ministry’s measures are enough. It remains to be seen how effective the steps will be, he said. In the meantime, something must be done — and fast.

“ For whatever reason, no one is making the hospitals and the ministry accountable and responsible,” Schneider said. “ If I was sitting in regular criminal court and I tried a case and convicted an individual and said to him you’re going to jail for two years, what situation would the courts be in if the superintendent of the jail phoned up and said: ‘ Sorry, Your Honour, we’re all full. We can’t take him.’ ”