Justifying involuntary psychiatric treatment in Canadian law: Competence, autonomy, and the narrative analysis

Respect for individual autonomy is a foundational value which informs the legal and ethical considerations and requirements involved in medical decision-making. In Canadian law, respect for autonomy is instantiated by the requirement for obtaining informed consent from a person before providing them with medical treatment. Absent such consent, unwanted treatment may be considered medical battery and contrary to medical ethics. The presence and impact of mental illness can complicate the process of obtaining informed consent as the illness may negate the person's capacity to make decisions or communicate them. In cases where a patient can be psychiatrically assessed as mentally incompetent to provide consent, law and ethical policy permit a degree of medical paternalism to provide for acting in the medical best interests of the patient, notwithstanding a lack or even refusal of consent on the part of an incompetent patient. A more ethically and legally challenging case arise in those cases where the presence of a mental illness has impaired or substantially impacted a person's preferences and reasoning, however not to the extent that they would be assessed mentally incompetent. In these cases, the person may be at significant risk of self-harm and may deteriorate without treatment, yet sufficiently competent to refuse treatment. This thesis engages in an analysis of different legal and ethical approaches to involuntary psychiatric treatment within the Canadian legal context and the western medical ethics tradition. Each Canadian jurisdictions is governed by its own mental health legislation, yet despite the different approaches, all must comport with the Canadian Charter of Rights and Freedoms.After analyzing the different legal approaches to involuntary psychiatric treatment in Canadian statute and common law, it is argued that, while each approach has benefits and drawbacks, the frequent emphasis on mental competence as the deciding factor in whether and how involuntary treatment can occur facilitates the potential for one of two unsatisfactory circumstances: first, individuals may be "warehoused" in institutions because they are dangerous to themselves or others, yet shall remain untreated because they are competent to refuse treatment and many do so; second, individuals who are competent but at a substantial risk of self-harm or deteriorationmay be left to their own devices, neither admitted nor treated, on the basis of a competent refusal of treatment. Reliance on mental competence as being the determining factor in implementing involuntary psychiatric treatment is intuitive liberal, however this thesis proceeds to analyze the legal and ethical understandings of personal autonomy, such as it relates to informed consent and involuntary psychiatric treatment. A more robust understanding of autonomy, particularly informed by modern bioethical and feminist critiques, suggests that deference to refusals of psychiatric treatment may result in an overall loss of autonomy, rather than the protection of it, which was a principal goal of the liberalization of mental health law and policy. In order to address the concern of (competent) psychiatric patients refusing treatment to their detriment when their refusal may be substantially motivated or impacted by the symptoms of their illness, I propose that a narrative accounting of the patient's own treatment history, preferences, and values, over time, should be considered in deciding whether or not they can be treated against their will. This approach preserves the liberalism of respecting their own choices, but provides for a non-arbitrary measure of whether or not their present refusal of treatment is authentic, and therefore a meaningful exercise of their autonomy, or the result of a drastic or sudden change in their judgment precipitated by their illness, which I argue ought not be considered an act of autonomy.

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