The Consent and Capacity Board: Justice "Enacted"

As a researcher investigating psychiatry (The Psychiatry Project), in preparation for writing the 5th chapter of “Psychiatry and the Business of Madness” I attended and conducted careful observations of many meetings of the Consent and Capacity Board of Ontario. The Consent and Capacity Board of Ontario—and there are similar processes in other jurisdictions—is a quasi-judicial review tribunal to which psychiatric “detainees” can appeal various determinations made with respect to them. Most commonly, what inmates appeal is their involuntary status (being committed involuntarily) or having been declared “incapable” of making their own decisions about treatments (for details on mandate etc., see http://www.ccboard.on.ca/scripts/english/index.asp).The existence of these avenues of appeal is touted as the epitome of a system with rights, presented as proof that the necessary safeguards are in place. Besides that that idea of “involuntary treatment” is morally unacceptable, and besides that the “treatments” given are inherently harmful, with these processes, it is the appearance of rights far more than rights itself that is enacted. The point is that inmates stand very little chance of prevailing. To provide you with an example of one statistic by way of demonstration, in 2011, in only 5% of the incapacity appeals in Ontario did the inmate win (statistic provided in personal email from CCB registrar, October 24, 2012). How, you might ask, could this be? My observation of these hearings serve to illustrate. More generally every such observation acted as a window onto a system which functions in a circular fashion, and where the proverbial cards are stacked against the inmate. I report here on one such hearing for purposes of illustration. As it is highly common for the hearings to be “aborted”, I choose as an example one in which, indeed, rebooking occurred.

It is 10:00 a.m. on October 25 2012 at a central “mental hospital” in Ontario. As an observer, I am sitting at one of the chairs toward the back of a medium sized room, waiting for the hearing to begin. Seated at front, the panel was already present when I entered, and it is complete with the mandatory community member, lawyer (chair), and psychiatrist. Slightly ahead of me is the lawyer for the hospital. To my side is the lawyer for the “patient”, who for the purposes of this example, I shall call “R”. The chair makes a few remarks and looks toward R, well aware the “patient” is conspicuous by his absence. R carefully explains that there has been what he calls “an incident”, that it happened a few hours ago, and that the “incident” obliged the doctor to medicate his patient. R refers to the doctor’s response to “the incident’ as a “treatment decision”. Correspondingly, he points out that while he is no way questioning that “treatment decision”, he fears that his client may now be too sedated to appear. We are just going to have to wait and see if he sufficiently recovers for the hearing to proceed, he states.

At this stage in my research journey, I have already been to enough hearings that essentially “did not happen” that I am painfully aware that little may materialize today. Time passes, with members of the panel schmoozing, catching each other up on events in their life, exchanging pleasantries, as in “And how is your daughter these days?” Clearly no one is thinking that anything out of the ordinary has happened. Finally around 10:30, the eagerly awaited appearance actually happens. A young Black man ( the “detainee”) appears. Wheeled in by guards, he is blatantly unable to walk. He is deposited in a chair, where he keeps drifting in and out of consciousness. Barely able to hold himself up, almost of the verge of falling, he sits there slumped over. Never once does he open his eyes. We continue to wait, presumably in the hope that the “detainee” will “recover” sufficiently to proceed. Still the “detainee” does not open his eyes. Eventually R asks that the hearing be adjured and a new hearing called. And the chair obliges.

What does this episode point to? Lest anyone thinks that the answer is “bad lawyering”, let me begin by pointing out that R was a highly experienced and capable lawyer with a track record far superior to most.

The use of the word “incident” and the easy acceptance of it by everyone present is an early indication that it is accepted that one of these parties (the detainee) is given to “inappropriate behaviour” and that the other (the psychiatrist) is the correct determiner of that. More fundamentally, what we can see right from the start is the whole operation is predicated on a belief that the psychiatrist is an authority who knows what he is doing and the inmate is problematic, moreover, that the psychiatrist’s assuming power over the inmate is not only acceptable but necessary. By the same token, the use of the concept “treatment” to describe so tranquilizing the person that they cannot stay conscious and the fact that the lawyer for the detainee knows not to bother challenging this tells us that short of making a mistake out of the ordinary, in the end, the psychiatrist is sure to prevail, for what is being assumed is precisely what should have been had to be proved. What is assumed, to be clear, are the soundness of the interventions and the correctness of the power dynamic.

Recall that this is a quasi-judicial proceeding and the contradictory nature of what has unfolded here becomes evident. In what other area of jurisprudence is one of the parties to a legal dispute entitled to drug the other to oblivion or almost to oblivion just before the hearing commences? Now this particular inmate was drugged more than most, which, in itself, raises the question of systemic racism. Be that as it may, in every single hearing that I attended, the inmate had blatantly been administered far more drugs than usual shortly before the hearing began. Correspondingly, overwhelmingly, they entered the room, slurring their words and stumbling. To quote one of my survivor interviewees in this regard, “I was totally drugged. They sat me down. I put my head on the table, and I didn’t hear a thing. I just cried and cried and cried.” Witness additionally this exchange with Dan Brodsky, a Toronto lawyer who routinely represents clients at such tribunals:

Burstow: So as a lawyer who represents clients at such hearings, you are telling me that they actually do it? That they actually increase the medication before the hearing? 

Brodsky: Over and over again.

This is hardly a fair or “normal” hearing. What adds to the travesty, a person so drugged will indeed look “incapable” when s/he arrives at the hearing—and the setup is complete. Here they are on display—capable psychiatrist whose decision must be upheld and the confused incoherent inmate. And so it is that that justice is “enacted” and “accomplished”.

To zero in one final time on this particular case: What if the detainee “revived” sufficiently that the functionaries could deem him acceptably present—presumably, what all the other parties present were waiting for? In this highly “drugged out” state, would he have truly understood what was happening? Could he have in any way been able to make a case for himself? More to the point (since he was well represented legally), how would he have appeared to the people in whose hands his fate lay? Would he have looked “capable” of making his own “treatment” decisions? Of being “voluntary”? Of getting out?

What is apparent is that we have here is not a test of capacity but a show in which everything is orchestrated to demonstrate incapacity. What we have, to put this another way, is not a check on the system but the activation and reaffirmation of the system.

All things considered, it is hardly surprising that inmates seldom prevail. What is surprising is that they ever win at all. That, however, is another story altogether (for insight into that particular dilemma and related issues, see Burstow, Psychiatry and the Business of Madness, Chapter Five).