Dr. Richard O’Reilly is a psychiatrist at Regional Mental Health Care London and St. Joseph’s Health Care London. He was interviewed for his perspective on the civil liberties aspects of Community Treatment Orders.
This article is part of a series of interviews with advocates, legal thinkers, community organizers and academics on issues related to Canadian civil liberties produced by CCLA volunteers. All responses are the interview subject’s own, and do not necessarily represent the viewpoint or positions of the CCLA.
CCLA: Do you believe that Community Treatment Orders (CTO) should be used? Would you suggest any alternatives to CTOs?
RO: The reduced availability of hospital beds for individuals who suffer from severe and persistent mental illnesses has resulted in many individuals who need care and treatment being denied admission to hospital. It has also resulted in the discharge from hospital of many other individuals with severe mental illness before their acute symptoms have fully resolved and/or before reasonable plans for follow-up treatment and appropriate accommodation are made. Even in the early phases of deinstitutionalization, people who lacked capacity frequently refused treatment when discharged from hospital and as a result decompensate. Failure to provide treatment in the community to these individuals is a form of abandonment. It predictably results in mental and physical deterioration, lost opportunities, functional impairment, lowered chance of recovery, death and occasionally violence towards others. Stories about horrendous living situations and tragedies are common in the media. This situation is only going to get worse with the ongoing reduction in psychiatric beds.
While CTOs do not provide a fix for all the problems associated with an underfunded mental health system, they do allow committed clinicians to provide essential treatment to some of the most severely ill patients who are refusing or who would inevitably default on effective treatment. This is essential as long-term hospital admission is no longer a possibility. More importantly, the provision of treatment in the community allows the person to rebuild a life outside hospital without the regular interruption and disruption of repeated admissions associated with treatment non-adherence.
CCLA: In what circumstances are CTOs most effective? Are there circumstances where they are ineffective?
RO: CTOs are most effective for people with psychotic illnesses when the person lacks the ability to appreciate that they are ill and that medication can ameliorate or resolve their symptoms. Capable clinicians must commit to working with the person – both providing the treatment and ensuring that the conditions of the CTO are met. At some level, the person must be willing to try to comply with the conditions of the CTO. The orders do not work well for patients with certain personality traits.
CCLA: In your opinion, how do CTOs affect the therapeutic relationship between the client and their medical team?
RO: My personal experience reflects the findings of research, especially qualitative research studies that report patients who are on, or have recently been on a CTO, generally do not report a negative impact on the therapeutic relationship. Only minority of patients express anger at the CTO and at their clinicians: in my experience these are often the people who would not accept any treatment or contact with clinicians. I have concluded that for these individuals the more appropriate question is: “Is a tense clinician-patient relationship better than no relationship at all?”
CCLA: In regards to the available community services in Ontario, do you agree with the statement that all individuals who could benefit from a CTO have access to one?
RO: No, I disagree with this statement. It is regrettable that there is regional variation in the use of CTOs in Ontario as indicated by the two legislated reviews. It is clear from the findings of these reviews that some physicians refuse to place patients on CTOs even when this would likely be of great help to the patient. While ignorance of the law is one factor contributing to this failure, the legislated reviews also concluded that physician reluctance to complete the paperwork or to attend at the Consent and Capacity Board hearing associated with CTOs are also important factors.
What are the disadvantages and advantages for an appointee of the state (e.g. a physician) or a substitute decision-maker (e.g. a guardian or an attorney for personal care) representing the incapable patient when making treatment decisions?
I do not favour a model in which a physician makes treatment recommendations and also provides consent for treatment. This unnecessarily removes one protection against poor decision making – a second opinion. Even an opinion from a substitute decision maker that is poorly informed by expert knowledge can be an important safeguard.
An appointee of the state such, as a guardian, will develop expertise in making substitute decisions that a family member will not. A state appointee can be expected to be available within a reasonable short period of time, whereas a clinician may have trouble contacting a family member. An advantage of family members as substitute decision makers is that they know their relative well and are emotionally involved and committed. Alas, emotional involvement can be a two sided blade that can impair sound decision making.
CCLA: With the shortage of medical practitioners that are available to give a second-opinion, what are the outcomes for clients under CTOs?
RO: This question has an unusual construction. Overall, the outcomes for patients on CTOs is very good with most becoming more stable and many making remarkable recoveries after years of failure to establish normal lives because of non-adherence to treatment, failure in the community and revolving door admissions. A small group of people who are placed on a CTO experience no benefit and the CTO is not continued.
There is a shortage of psychiatrists who are committed to working long-term with this group of patients, especially with patients who have difficult behaviours or who present risks to themselves or others in the community. To some extent this limits access to a CTO but does not affect the outcome when a CTO is used. A second opinion is a once-off act and thus not as burdensome as committing to providing life-long care to a patient.
CCLA: It must be difficult to balance a patient’s rights to choose treatment with the need to consider their illness and their ability to make decisions in their best interest. What is the process as a medical professional for making and implementing the decision to impose and continue a CTO?
RO: The Health Care Consent Act lays out the process clinicians, including medical professionals, must follow to determine whether a person is capable to consent to treatment. It clearly lays out what can and cannot be done following a finding of incapacity. This removes many ethical problems that a physician would likely otherwise face.
CCLA: Have you any other comments?
RO: I have been very interested in the reaction to CTOs and to the polarized view of many commentators. I published an article several years ago examining why CTOs are so controversial and have taken the liberty of attaching a copy.
As this study is being conducted by the Canadian Civil Liberties Association, I thought that the analysis provided by Herschel Harding, former President of the British Columbia Civil Liberties Association, might be germane to the discussion. Even though Mr. Harding penned these words 20 years ago they remain true today.