Seite - 442 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE442 Is a Mental Health or a Public Health Approach Preferable in the Case of People Who Do Not Follow Public Health Measures Due to Mental Illness? Under current interpretations of Ontario’s mental health legislation, it appears that the failure, due to mental illness, of an uninfected person to follow public health advice would only rarely be sufficient on its own to satisfy the criteria for involuntary hospitalization. However, from the public health perspective, the failure to follow preventive measures or to self-isolate where infection is known or suspected poses risks that justify enforceable restrictions on the liberties of the general population. The question we raise here is whether the interpretation of the hospitalization criteria ought to be different during a public health emergency. Should the risk to public health—and the need for a pre- ventive approach to be taken by all—be factored into the interpretation of when a person poses a serious risk to others due to mental illness? It is true that the marginal risk to the public health effort posed by any one non-compliant individual is small, but the success of the effort to contain the virus depends upon the small contributions of everyone. One of the arguments against applying the mental health legis- lation to uninfected people with mental illnesses is that the degree of the restriction on liberty posed by involuntary hospitalization dwarfs that posed by preventative public health measures being applied to the general uninfected population. Public health restrictions on gath- ering in groups and entering certain public spaces are being enforced at least initially by fines, although serious repeat offenders might be subject to a court order or larger penalties. It would be disproportion- ately severe to involuntarily hospitalize people with mental illnesses when enforcement against other members of the public who behave in similar ways remains relatively lenient. If there are outbreaks of the virus in a psychiatric hospital, another strong argument against taking a mental health response to the public health risk is that it is unfair to expose people with mental illness to the risk of infection in hospital when non-compliant mem- bers of the public are simply receiving fines. The risk of infection is elevated within hospitals and other institutions and with congregate living environments, and there have been some outbreaks in Canadian psychiatric hospitals.23 23. Bryan Passifiume, “CAMH patient dies from COVID-19”, Toronto Sun (23 April 2020), online: <torontosun.com/news/local-news/camh-patient-dies-