Hot! 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.

< http://www.thestar.com/news/article/1134817–mentally-ill-win-right-to-challenge-their-lawyer-s-performance >

2 Comments

  1. I can appreciate that under the Charter of Rights and Freedoms everyone, including the mentally ill should have the right to a fair trial. This means the right to the aid of a good lawyer that has only their client’s best interests in mind, but what constitutes mentally ill? After reading this article, I disagree with Justice Eleanore Cronk. Given the general definition of mental illness, I feel the comparison between a criminal trial, and a mental health treatment decision to be a little weak. In this case, if we are talking about schizophrenia, generally people charged with criminal offences do not have hallucinations that make them unable to distinguish between reality and delusional beliefs. How is a good lawyer going to determine weather their client is not a danger to themselves or others when they are off their medication? Could a patient who suffers from mental illness, or the patient’s family not get a second opinion from another specialist, and then use any new findings to change a doctor’s plan of care, without a lawyer?

    I don’t know what stage of schizophrenia Mr. Gligorevic was suffering from, but reading that he was locked in the Centre for Addiction and Mental Health, I can only imagine that the Centre had to lock him down as a safeguard from himself. That being said, if doctor’s reports show that Mr. Gligorevic has an acute stage of schizophrenia where, if off his medication he becomes so unwell that he resorts to violence from his hallucinations, or he is at risk of suicide, then I feel it would be a waste of the court’s time, and I can understand why he was denied effective legal representation. A persuasive lawyer is not what a person suffering from a severe stage of schizophrenia needs. What he needs is protection from himself. If his mental disorder moves to a less severe or residual stage, then his doctor, (hopefully aware of his patience’s goals) will properly reduce or ween him off the antipsychotic medications. “Mentally ill” is too broad a term. I am sure there would be no argument if a client suffering from depression wanted to fire their lawyer.

    Jason Ricci
    Social Work Student
    Laurentian University

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