Page - 435 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

435Weighing Public Health and Mental Health Responses to Non-Compliance… The outbreak of COVID-19 has highlighted and reinforced the vulnerability of multiple populations, including people who live with mental illness. Among the many challenges are the requirements for physical distancing, and in the case of symptomatic persons or suspected or positive cases, self-isolation. Mental illness does not automatically render a person incapable of adopting such measures or their decisions not to do so suspect. People with mental illnesses may decide not to follow public health directives related to physical distancing, hygiene, and self-isolation, just as other people without mental illness may choose to do, and public health enforcement mea- sures would apply. Here we consider how best to respond in those cases where the symptoms of mental illness do affect a person’s adherence to public health directives by undermining the abilities to understand, to exercise appropriate judgment, and to evaluate risk, among other things. Should a person whose ability to follow direc- tives is compromised by mental illness face the sanctions and enforce- ment procedures under public health laws? Or should a mental health intervention such as involuntary hospitalization be pursued to protect both the person concerned and others, as well as the community in general? At the same time, involuntary hospitalization is an excep- tional measure that may come with its own risks of infection, and it is evidently a much greater deprivation of liberty than a monetary fine for refusing to follow public health orders in the community. In this chapter, we consider the interplay of these two legislative regimes, recognizing that the balance may change with the evolution of the pandemic, shifting information, risk trade-offs, and social attitudes. Mental health legislation varies among the provinces, although the basic underlying objectives are similar. We base our analysis on the Ontario Mental Health Act.1 The objectives of Ontario’s law are to protect the person with mental illness from serious bodily harm or physical impairment; to protect others where a person poses a risk of serious bodily harm to other people; and to facilitate treatment where a person is incapable and is at risk of deterioration.2 Public health leg- islation, on the other hand, aims to protect the collective health and safety of the community as a whole. Both laws embody a trade-off between the legislative objectives and the liberty interests of those sub- ject to the rules and restrictions adopted to promote these objectives. 1. Mental Health Act, RSO 1990 c M.7 [MHA]. 2. Thompson  v  Ontario  (Attorney  General), 2016 ONCA 676 [Thompson].