Court/Judicial body: Ontario Consent and Capacity Board
Date: February 25, 2005 CRC
Provisions: Article 37: Torture and deprivation of liberty
Domestic provisions: Mental Health Act (Canada) (Section 20(5): Involuntary status)
Case summary
Background: A.C., a 15 year-old girl previously diagnosed with ADHD, bipolar disorder, conduct disorder and drug and alcohol abuse, was brought to the hospital for “bizarre hyperactive behaviour” and involuntarily admitted to an adult psychiatric facility. The Ontario Consent and Capacity Board (the “Board”) conducted an inquiry to determine whether A.C. should be forced to remain a patient in the psychiatric facility.
Issue and resolution: Involuntary admission of child psychiatric patient and separation of children and adults in detention. The Board determined that A.C. could and should stay on as an involuntary psychiatric patient.
Court reasoning: Based on evidence presented by A.C.’s attending physician, the Board determined that A.C. should continue to be detained under Section 20(5) of the Mental Health Act (Canada), as she suffered from a mental disorder of a nature likely to result in serious bodily harm to herself or another person unless she remained in the custody of the psychiatric facility. The Board also considered Article 37(c) of the CRC which provides that a child deprived of liberty shall be separated from adults unless it is in the child’s best interests not to do so. Based on the statements made by A.C.’s attending physician (1) that there is no alternative facility that would permit A.C. to be separated from adults while remaining close to her mother, and (2) that it would not be in A.C.’s best interests to transfer her outside of the geographic area, the Board found that it was appropriate to detain A.C. in the psychiatric facility even though she was not separated from adults.
Excerpt citing CRC and other relevant human rights “The Board then considered Article 37(c) [of the CRC]. The Board found that Ms. A.C. has been deprived of liberty and has not been separated from adults. In the opinion of Dr. Yim, the benefit of ease of contact between Ms. A.C. and her mother and other community support outweighs the harm of her placement in an adult psychiatric unit. Thus, in the opinion of Ms. A.C.’s attending physician it is in Ms. A.C.’s best interest not to separate her from adults while she is in the custody of the psychiatric facility. The Board uses its discretion to refuse to confirm a patient’s status as an involuntary patient where the prerequisites set out in the Mental Health Act are met only in the most unusual circumstances. The Board found, based on the opinion of Dr. Yim and the likelihood of serious bodily harm to Ms. A.C. or to another person and of serious physical impairment of Ms. A.C. if she does not remain in the custody of a psychiatric facility, that it would not be appropriate for the Board to refuse to confirm Ms. A.C.’s involuntary status because Ms. A.C. is deprived of liberty without being separated from adults. The Board found that Ms. A.C. meets the criteria set out in S. 20(5) of the Mental Health Act for involuntary committal. In making this finding the Board did not consider any criteria except that set out in S. 20(5) and specifically did not consider Ms. A.C.’s best interests. In its consideration of Article 37(c) of the Convention on the Rights of the Child, made after its finding regarding S. 20(5) of the Mental Health Act, the Board found that even though Ms. A.C. has been deprived of liberty without being separated from adults, there is no available alternative facility in the geographic area, which will permit Ms. A.C. to have regular visits from her mother. Dr. Yim, Ms. A.C.’s attending physician, said that in her opinion a transfer to an adolescent facility in an outside geographic area will not be in the best interests of Ms. A.C. Based on this opinion and Dr. Yim’s statement that there is no available facility which would permit Ms. A.C. to be separated from adults while remaining close to her mother and community supports, the Board found that it would not be appropriate for the Board to use its discretion to fail to uphold the certificate because Ms. A.C. is not separated from adults.”
Notes: Canada has made the following reservation to Article 37(c) of the CRC concerning the separation of children and adults in detention: “The Government of Canada accepts the general principles of Article 37 (c) of the Convention, but reserves the right not to detain children separately from adults where this is not appropriate or feasible.” The Committee on the Rights of the Child has encouraged Canada to withdraw this reservation and to ensure that children in detention are always separated from adults. See the Concluding Observations of the Committee on the Rights of the Child on Canada’s second periodic report (2003) for more details.
CRIN comments: CRIN believes that this decision is inconsistent with the CRC, and that Canada should withdraw its reservation to Article 37(c). Children in detention should always be separated from adults. Where children are not detained in separate facilities from adults, they should at the very least be detained in separate units or wings within mixed age facilities.
Citation: In the Matter of A.C., 2005 CanLII 7115 (ON C.C.B.)
Link to full judgement: http://www.canlii.org/en/on/onccb/doc/2005/2005canlii7115/2005canlii7115.html