What the UNCAT Said: Oversight of Psychiatric Detention

The challenge of ensuring adequate oversight of psychiatric detention in Canada has once again come onto the United Nation’s radar. At a time when Canada is considering the ratification of the OPCAT, the UN’s observations are extremely relevant in this respect. 

As highlighted in these pages, late last week the UN Committee against Torture published its findings of its 21-22 November 2018 examination of Canada in Geneva, Switzerland. In its Concluding observations, published on 7 December, the 10-person expert Committee expressed concern about deficiencies in relation to the oversight of psychiatric detention and made a recommendation in this same connection.

Psychiatric detention
United Nations High Commissioner for Human Rights in Geneva
by UN Photo/Jean-Marc Ferre

During Canada’s examination by the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, on 21 November the question was raised about the absence of independent oversight of psychiatric institutions. He noted that under the OPCAT certain States Parties to the OPCAT were adopting a broad definition of deprivation of liberty which took in psychiatric, social care and educational detention settings. He therefore queried Canada’s approach to this matter.      

In its Concluding observations the UN Committee stated (§20):

“While taking note of the existing prison monitoring bodies, including the Office of the Correctional Investigator and the Canadian Human Rights Commission, the Committee observes with concern the absence of independent oversight bodies to inspect other places of deprivation of liberty, in particular psychiatric institutions.”

The UN Committee therefore recommended that Canada (§21a):

“(a) Ensure an effective and independent monitoring and reporting system for mental health institutions”

As a country which is currently considering the potential implementation of the OPCAT, the above concern and recommendation are especially relevant, for reasons to be outlined below.

The scope of psychiatric detention in Canada

In Canada the provision of health care is largely a provincial concern and social care homes and psychiatric institutions fall within the purview of the provincial and territorial authorities.

In 2018 the Canada OPCAT Project embarked upon the process of mapping different places of detention in the country. While still very much a work-in-progress, to date, the initiative has mapped out some 234 acute in-patient mental health units and other psychiatric facilities in Canada. As statistics have yet to be obtained for the province of Québec, the figure of 234 facilities will be a distinct underestimation (readers are kindly invited to submit this missing information).

Psychiatric detention
Prisoner by Premnath Thirumalaisamy (2017)

This mapping-exercise did not attempt to tally the number of social care homes in Canada due to their potentially very large number and the lack of access to centralized provincial and territorial data.

Nonetheless, if Canada ever ratifies the OPCAT, upon being requested to provide detailed lists of all custodial settings (on the basis of OPCAT Article 20a), the future Canadian State Party to the OPCAT will be required to furnish both the NPM and UN Subcommittee on Prevention with accurate information in this regard.

The exercise of mapping out the numbers, location and size population-wise of social care homes will be an especially challenging task, more so as the numbers of facilities involved are potentially very large.

In Germany for example, a country with more than double Canada’s population albeit much smaller geographically in size, the NPM has calculated that some 550 psychiatric wards in special clinics or general hospitals and around 10, 900 social care homes and homes for the elderly fall within its detention monitoring mandate.

In the United Kingdom as part of its so-called now annual Detention Population Data Mapping Project for the fiscal year 2016–17, the NPM noted that 68, 843 persons were involuntarily detained under mental health legislation, while a further 100, 065 detained persons lacked the capacity to consent to deprivation of liberty.

In a word, the examples of the United Kingdom and Germany point to the scope of the task ahead in Canada of ensuring that all detention settings are potentially covered by the future Canadian NPM.

Existing oversight of psychiatric detention

At present psychiatric care settings are a detention domain which are mainly served by a combination of existing provincial and territorial complaints bodies and not the type of preventive mechanisms as envisaged under the OPCAT. Thus, a series of extensive modifications to the statutes, mandates and operational focus, structures, budgets and composition of such bodies would be required to make them OPCAT compliant.

There also appears to exist significant differences in oversight of psychiatric settings at the provincial and territorial level. While in a small number of provinces there exist specialized ombudspersons offices, in most, specialized bodies do not appear to exist. In such instances, wide mandate ombudspersons offices and internal ‘patient relations’-type processes exist to channel patients’ concerns and complaints.

Ontario is unique as a province, as patients in psychiatric settings and long-term care homes have the real possibility of recourse to two specialized ombudsperson-type bodies, namely the Ontario Patient Ombudsman and Psychiatric Patient Advocacy Office. Similarly, in British Columbia various Patient Care Quality Review Boards exist for the purpose of processing complaints.

In other provinces where specialized ombudspersons offices do not exist, members of the public should take their concerns to more general ombudsperson-type institutions. Thus, in Manitoba complainants can refer to the Manitoba Ombudsman, which in the past acted on a series of complaints of abuse in care settings to undertake a related inquiry. Likewise, in Québec, if a complaint about health and social service provision is not responded to within 45 days, or with satisfaction, by the service provider’s complaints commissioner, a complaint can be lodged with the Protecteur du Citoyen. In Yukon the Yukon Ombudsman is mandated to receive complaints into hospitals.

The limitations of these complaints-handling bodies from an OPCAT perspective were noted previously. Thus, the prevailing concerns about the need to change legal statutes, mandates, operational focus, budgets and in-house expertise would ring true for the domains of psychiatric detention and social care settings. In short, a proactively focused Canadian NPM would function very differently to how these entities currently operate in practice.

Whether the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, had such concerns in mind when he broached the issue of oversight of psychiatric detention is not known. Nonetheless, the UN Committee’s recommendation in this respect has arrived at a timely moment, as Canada considers the ratification and implementation of the OPCAT.       

See the UN Committee against Torture’s Concluding observations on Canada.