Mentally ill win right to challenge their lawyer’s performance
TheStar.com – news
Published On Tue Feb 21 2012. Tracey Tyler, Legal Affairs Reporter
People accused of crimes have long been allowed to argue their trial was unfair because their lawyer did a lousy job of representing them.
Now, mentally ill Ontarians caught up in legal battles over the right to choose their own medical treatment have the same rights.
In a 3-0 decision Tuesday, the Ontario Court of Appeal ruled that Zeljko Gligorevic, who has schizophrenia and is locked in the Centre for Addiction and Mental Health, is the victim of a miscarriage of justice because he was denied effective legal representation at a hearing before the province’s Consent and Capacity Board to determine whether he can refuse anti-psychotic drugs.
It is the first time a court has said the right to effective legal representation applies to those involved in legal proceedings in the mental health system.
“This was a novel claim in Canada,” said Mercedes Perez, a Toronto lawyer who specializes in mental health issues and was appointed to act as a ‘”friend of the court” in Gligorevic’s case.
For people charged with criminal offences, the right to effective assistance from a lawyer has been recognized as a principle of fundamental justice and a component of the right to a fair trial under the Charter of Rights and Freedoms.
But in civil cases, one of few options available to people who take issue with the quality of their lawyer’s work has been to sue for negligence. That’s not a very satisfactory remedy for someone like Gligorevic, who is fighting attempts to have him declared incapable of making his own treatment decisions.
While effective legal assistance is seen as crucial at a criminal trial, where an accused person’s freedom is at stake, it is no less serious in the mental health context, where treatment decisions affecting a person’s liberty, dignity and right to self-determination are also at issue, said Justice Eleanore Cronk, writing for the appeal court on Tuesday.
Without “the availability of effective assistance of counsel who is prepared to undertake fearless advocacy for the allegedly incapable patient at the board capacity hearing, the right of self-determination in respect of medical treatment becomes illusory,” she said.
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