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Court places six-month cap on involuntary detention of mental-health patients

Osgoode Hall in Toronto, where the Ontario Court of Appeal is housed. Five judges said unanimously on Tuesday that the province’s Mental Health Act lacks fair procedures to protect people like P.S. who are detained more than six months.

J.P. Moczulski/J.P. Moczulski/The Globe and Mail

Mental-health authorities in Ontario have lost their power to hold patients for more than six months, after a court ruling in the case of a pedophile detained for 19 years under the province's mental-health law.

The 56-year-old man, who can be identified only as P.S., was imprisoned for 45 months, beginning in 1992, for sexually assaulting a 12-year-old boy in a YMCA washroom. When his sentence ended, he was "gated" – detained immediately by mental-health authorities, certified as a pedophile and committed to a maximum-security hospital.

The doctor who committed P.S. said he did not need maximum security, but no other hospital would take him. Deaf since birth, and with poor sign-language skills, he received little treatment in his 19 years in hospital, and none in prison. An Ontario tribunal that reviewed P.S.'s case regularly had no power to order that he be placed in a supervised facility in the community. One tribunal member even protested 15 years ago that P.S. had been given an illegal "life sentence."

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Five judges of the Ontario Court of Appeal said unanimously on Tuesday that the province's Mental Health Act lacks fair procedures to protect people like P.S. who are detained more than six months. It also said the hospital that held him, now known as Waypoint Centre for Mental Health Care in Penetanguishene, violated his equality rights as a deaf person by failing to provide him with the treatment services in sign language that might have helped reduce the risk he posed.

The constitutionality of "gating" was not directly at issue in the case. The court said people detained for mental-health reasons, no less than those detained for national security reasons or because they have been declared not criminally responsible for a crime owing to a mental disorder, need a fair review process to ensure their liberty is restricted no more than necessary.

The court altered the Mental Health Act by capping detention at roughly six months, but suspended its ruling for a year to allow the government time to rewrite the law if it chooses. Currently, 2 per cent of all uses of civil detention under the Mental Health Act last longer than six months, the court noted. (It did not say how many people that amounts to, and a spokesman for the Health Ministry was not able to provide the figure on Tuesday.)

Brendan Crawley, a spokesman for the Ministry of the Attorney-General, said the government is carefully reviewing the ruling.

As for P.S., he is now in limbo, and the judges expressed the hope that his future could be worked out without any more court battles.

"It used to be you could renew certificates of involuntary detention practically indefinitely, whereas now the court has said only for six months unless the government is going to revise the legislation to reflect the concerns raised in the case," Mercedes Perez, a lawyer for P.S., said in an interview.

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