Intervening Before Dangerousness: Canadian Psychiatrist Describes Ontario Law Judging Ability To Consent

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What should a psychiatrist do when a patient, who has had symptoms of a serious mental illness but is currently stable, refuses further treatment?

Dr. David Kantor, a Canadian psychiatrist, sent me an email addressing this question. He explained there is a process in Ontario that permits doctors to override the patient’s choice before that patient regresses.

Please share your thoughts on my Facebook page about his email.

Evaluating An Individual’s Ability To Give Consent

By Dr. David Kantor, MD FRCP

Successful treatment of people with severe mental illness (SMI) such as schizophrenia, is inarguably a problem everywhere in the world. The primary reason for this is the fact that many of these patients (estimate by various literature accounts as between 40%-90%) lack insight into their illness. That is, they do not appreciate the fact that they suffer from the illness and/or that adequate treatment is necessary.

Different geographic jurisdictions worldwide have different mental health laws. A major aspect of how these laws differ is the degree to which the particular jurisdiction allows for involuntary treatment in this patient populations.

I am a psychiatric specialist in the province of Ontario, Canda. In Ontario, all medical treatment is dictated by the patient’s willingness or unwillingness to undergo the advised treatment – i.e consent to treatment.

However, Ontario laws demand that a patient’s capability to consent to treatment be assessed when there is reason to believe the patient may not be capable.

Two Criteria Used To Assess Patient’s Capability To Consent

In Ontario, two criteria exist for the determination of treatment decision capacity. They are straightforward. 1. Does the patient understand the information that is provided? 2. Does the patient have the ability to appreciate the consequences of his/her decision of accepting or not accepting the treatment?

In the SMI population, the first criterion is rarely applicable as the patient typically understands what he/she is being told. This criterion more commonly applies in cases of dementia where the patient’s cognitive deficits render it impossible for him/her to understand the information provided.

The second criterion is commonly met in the SMI population. This is because lack of insight renders the patient unable to appreciate the consequences of his/her refusing treatment.

For example, a patient with a revolving door history of psychiatric hospitalizations typically has undergone repeated hospitalizations due to repeated relapses of psychotic illness. The repeated relapses are almost always due to discontinuing medication upon discharge from hospital, leading to severe deterioration. The patient, however, despite the clear and overwhelming evidence of the need for medication, believes that the hospitalizations were unnecessary and/or medication is unnecessary in order for him/her to maintain mental stability.

In such instances the patient would meet the criterion for lacking the ability to appreciate the consequences of a decision to discontinue treatment. Once incapability to consent to a treatment has been determined, a substitute decision maker (SDM) is appointed. Oftentimes, this is a family member. It should be noted that it is the treating physician who performs the assessment of consent capability, and the treating physician must similarly determine the capability of the SDM to assume the role of the SDM. In any case, once the SDM has been determined, and if that SDM believes that the advice of the treating physician should be followed, then the patient may be administered treatment even if his/her preference is otherwise.

The classical example is a patient who is receiving a long-acting injectable antipsychotic medication. Such a patient may have undergone a tremendously successful recovery i.e. no longer be experiencing the psychotic symptoms, bizarre delusions and hallucinations that have led to the repeated hospitalizations. However, as unfortunately is frequently the case, the patient’s lack of insight remains unchanged.

It’s important to note that a patient can contest the doctor’s decision to a panel that consists of a lawyer, layperson and psychiatrist. That panel can agree with the doctor or overrule the doctor’s decision. It is up to the doctor to justify his decision, not for the patient to prove he is capable of making a decision. This is for the protection of the patient. The onus is on the doctor to provide evidence, not on the patient to show he is capable.

This scenario is difficult for a layperson to appreciate given that it is assumed that once a patient’s illness is successfully treated, the patient appreciates that the treatment was effective and will maintain it or, if choosing not to maintain it, acknowledges that there is a risk in not maintaining it.

Patients often don’t see link between medication and stability.

However, in many cases of patients suffering from SMI, there is no appreciation of the fact that the improvement in mental status and level of functioning has anything to do with medication and thus, the patient’s desire is to discontinue treatment. If such a patient has been previously deemed incapable to make consent decisions regarding their antipsychotic medicine, and if the patient’s SDM wishes the patient to remain in treatment, the laws in Ontario allow for that patient to be taken to hospital even involuntarily in order to have medication administered.

In this scenario it is crucial to keep in mind that the patient will not be hospitalized — there is no need to hospitalization because the patient’s mental status has not deteriorated. The purpose of being brought to hospital is solely to maintain medication that has been proven to be highly effective. Once administered, the patient will be discharged home. A relapse has thus been prevented.

This scenario is what the law allows. However, in reality, the vast majority of such patients appreciate that unwillingness to receive treatment will lead to be taken to hospital, and thus do accept treatment in the community. They do so not because they believe this it is required in order to maintain their mental health, but to avoid unpleasantness and inconvenience of being taken to hospital. A knee-jerk response to this scenario is that it is a draconian method of ensuring that the patient’s treatment is maintained.

However, the oft underemphasized aspect of this scenario is that these patients by definition have a demonstrated history of being very very ill when untreated – unable to care of themselves, being evicted from housing, severe self-injury due to psychotic symptoms, violence toward others due to psychotic symptoms, and the above noted repeated hospitalizations. Psychiatrists who support this manner of maintaining the patient’s improved mental state believe that the scenario of a patient functioning outside of hospital and complaining about being forced to take medicine, is the lesser of evils compared to a patient who is allowed to discontinue treatment and suffer recurrence of symptoms – leading to more time in hospital, or being assaulted, or jailed, or shot by police, or any combinations thereof.

In almost all of the United States, assisted outpatient treatment (AOT) legislations exists. AOTs include treatment plans to allow for the patient to be taken to hospital should they not comply with treatment. Similar vehicles exist in other countries.

AOTs are pieces of paper. Paper does not prevent a relapse of schizophrenia. Medication does.

However, being brought to hospital for assessment, although of benefit, in and of itself will not prevent relapse of illness. Maintenance of medication does.

In summary, the key factor in the maintenance of treatment of patients who lack insight into their severe mental illness, should be that of whether the patient is capable to consent to treatment.  Capability to consent to treatment must be the driving factor for treatment regardless of what illness and what treatment is being discussed. A patient who is not capable to consent must not be left in the position of making a consent decision regarding the very treatment for which they are treatment-decision incapable. This would appear to be blatantly obvious and yet, astonishingly is not taken into consideration in many jurisdictions worldwide.

About the author: Dr. David Kantor is a psychiatrist in Toronto, Canada.  He consults to several assertive community treatment [ACT ] teams in the area.  These teams serve a clientele of patients with a history of severe mental illness [SMI], usually schizophrenia or schizoaffective disorder.  He has a particular interest in mental health law and how it varies amongst different geographic regions. Perhaps the most significant of these variations is in regards to the assessment of capability to consent to treatment- and how in some jurisdictions such an assessment is crucial to the treatment process, whereas in other regions it is not considered a determining factor for treatment.

About the author:

Pete Earley is the bestselling author of such books as The Hot House and Crazy. When he is not spending time with his family, he tours the globe advocating for mental health reform.

Learn more about Pete.