Seite - 440 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE440 Where a person has a mental disorder that is “likely” to result in “serious bodily harm” to the person or to others, or “serious physical impairment” to the person. Lack of decision-making capacity is not a requirement for hospitalization in this kind of situation in Ontario (although incapacity is a hospitalization cri- terion in some Canadian jurisdictions).14 Where a person is incapable and has a known history of men- tal disorder that is “likely” to result in “substantial mental or physical deterioration” (or one of the above kinds of risks) unless treated, the person has improved with treatment in the past, and substitute consent has been given to administer treatment.15 The risk of “serious bodily harm” criterion is unlikely to be met in the case of a person who does not follow public health directives, as this criterion is usually interpreted to mean a risk of violence to oneself or others. However, behaviour that poses a risk of transmitting a serious infection to others has occasionally been found to meet the criteria of posing a likely risk of serious bodily harm to another person. For example, in Re MC,16 a hospitalized patient who was infected with two contagious treatment-resistant bacteria was found to pose such a risk because of spitting and throwing urine at hospital staff. In the context of COVID-19, an infected person who refuses, due to mental illness, to self-isolate would pose a risk of transmitting the virus to the public, although the risk of transmission may be lower than in the case of an assault, as was the case in Re MC. Furthermore, risk of infection with the coronavirus may not meet the threshold of likely serious bodily harm to others, given that the course of illness is usually mild. The risk might, however, be sufficient depending on the specific situa- tion—for example, if the person was living with an elderly person. As for “serious physical impairment” of the person with a mental illness, the criterion might be met where the mental disorder leads to behaviour that is likely to result in a serious infection,17 or to provoca- tive behaviour that is likely to result in violent retaliation by others.18 14. MHA, supra note 1, s 20(5)(a). 15. MHA, supra note 1, s 20(1.1). 16. MC (Re), 2010 CanLII 68898 (ONCCB). 17. See e.g. CL (Re), 2017 CanLII 92634 (ONCCB);) JF (Re), 2011 CanLII 71439 (ONCCB); AD (Re), 2011 CanLII 85307 (ONCCB); DC (Re), 2003 CanLII 54111(ONCCB). 18. See e.g. DA (Re), 2016 CanLII 88909 (ONCCB); IM (Re), 2006 CanLII 52776 (ONCCB).