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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).
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Titel
- VULNERABLE
- Untertitel
- The Law, Policy and Ethics of COVID-19
- Autoren
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Verlag
- Ottawa Press
- Datum
- 2020
- Sprache
- englisch
- Lizenz
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Abmessungen
- 15.2 x 22.8 cm
- Seiten
- 648
- Kategorien
- Coronavirus
- International