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| Anita Szigeti |
The mental health patient or accused side bar, the so-called “defence” in this specialized area of mental health justice litigation, welcomed both judgments in large part because they validate the experiences of our clients and our own experiences at many, but certainly not all, hearings of these particular tribunals. For over 30 years now I have regularly appeared before these boards, have supervised the work of countless associates at my own firm who have done the work daily and have chaired two volunteer lawyer organizations supporting the hundreds of lawyers active in this bar.
I have listened to our clients’ and our lawyers’ concerns, and the most consistently voiced complaint by both is the stacked decked against them from the start and throughout the proceedings. People living with serious mental health issues who are detained on that basis and their lawyers working on almost entirely legal aid certificates both often feel disrespected, undervalued and dismissed. These participants are also frequently alarmed that the wrong result may have been reached because they were not heard or understood. Indeed I have watched dozens of good lawyers, young and old, leave the practice area because they were so discouraged, their disappointment had turned into distressing despair.
In fairness to administrative tribunals generally — and Ontario’s mental health tribunals are certainly no exception — they tend to function under serious resource constraints, crushing workloads and too little time to review materials or draft comprehensive reasons. They do have subject matter expertise, whether in the constitution of their membership — such as psychiatrist panel members hearing mental health cases — or in the historical experience developed over decades of adjudicating in a niche area of the law. Their members individually and the tribunals collectively no doubt endeavour to provide full and fair hearings and strive to reach the right result, based on all the relevant evidence and the correct application of their enabling statutes.
However, both the role played by medical professionals on hearing panels and the long-term reappointment of some members who have come to rely on “how things have always been done” can cut both ways; i.e., function to entrench poor practices or attitudes as much as provide some necessary expertise.
But what ultimately constitutes the greatest access-to-justice barrier for the vulnerable litigant at the heart of every mental health law proceeding is the potential impact of implicit biases. Not actual or express bias or even a reasonable apprehension of such bias, but rather the oft-discussed subconscious biases that all decision-makers are routinely and regularly cautioned against. The difficulty is that you can’t rid yourself of such biases by just telling yourself to stop it, just as adjudicators cannot simply be trained to put such biases, of which they are by definition unaware, out of their own minds.
What’s relevant here are stereotypes about people with lived experience of mental health issues and to some extent, unfortunately, at least on occasion, about their lawyers who work to represent them on almost exclusively legal aid retainers. A diagnosis of mental illness is too often wrongly presumed to correlate with dangerousness, cognitive impairment or irrational personal care decision-making. Lawyers who choose to represent vulnerable, poor populations are sometimes equally pejoratively presumed incompetent to act for people who have money or status in society.
Add to that, some board members, particularly those who are not legally trained, occasionally misattribute positions taken on behalf of parties to proceedings as the position counsel is choosing to advance, which troubles them especially where they perceive the position as unreasonable. Some adjudicators do not have a clear understanding of the nature of client-instructed advocacy. They also may not be familiar with ordinary litigation tools or strategies, such as the basics of cross-examination. As a result, a perfectly proper cross of a physician is sometimes mistaken for abusive conduct by the lawyer who is just doing their job.
Institutional biases can further exacerbate barriers to accessing justice for vulnerable litigants. Independent administrative agencies, like the courts, must guard against leaving the impression that they consistently prefer or defer to positions taken by the Crown or psychiatric facilities or psychiatrists as opposed to acknowledging and validating the experience of persons living with serious mental health issues. They must similarly ensure that the administrative infrastructure of the tribunal functions in an even-handed manner in their day-to-day operations. It takes extremely mindful leadership to effectively level these uneven playing fields and assertively highlight where fairness mandates a serious cultural shift in the organization.
The good news is that both tribunals have committed to meaningful consultation with stakeholders, have established ongoing board and bar advisory committees, and have access to input from the affected client population and the lawyers who represent them. These directly affected participants can offer helpful advice to assist adjudicators, and the tribunal, to ensure fairness for these extraordinarily vulnerable parties to their proceedings. Indeed, both tribunals are consulting more and operating with more transparency and accountability than I have seen before in my long career, including welcoming and being responsive to new draft rules of practice for both tribunals. All of this is to their respective leaderships’ great credit.
There are two other things that would address the problems engendered by the implicit biases I’ve set out. The first is representation on these tribunals. Adjudicators with their own lived experience of serious mental health issues and lawyers whose careers have been devoted to representing these clients should sit on these boards. The tribunals themselves may have little or no control over this as the province makes the appointments, but it’s a point that nonetheless bears flagging.
What the boards can control, however, is the training and education they provide to their members. On that front, involving people with lived experience of serious mental health issues outside the hearing context, when their mental health condition is not the subject of scrutiny, would serve board members well. Hearing directly how these proceedings are experienced by the people whose liberty they determine can only help. And lawyers who have been in the trenches beside their clients at these hearings have a lot of wisdom to impart. We look forward to sharing our observations and tips with all who will listen.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on X and on her blog.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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