Healthcare leaders addressing homelessness and mental illness in Canada may find mental health laws challenging. This paper explores the limitations of the existing system, including insufficient hospital services, community resources and long-term housing solutions. It critiques proposals for forced treatment and confinement, arguing that they are costly, legally contentious and ineffective in providing sustainable care. Instead, it advocates for increased investment in community-based mental health services, stable housing and income support and coordinated care between hospitals and community programs. By shifting focus from detention to prevention and support, health leaders can create a more humane and effective system for individuals with mental illness and addiction.

What Is the Problem?

Unhoused people sleeping in encampments and on sidewalks, asking for money, spending their days on public transportation and using substances openly in public places are common sights in many Canadian cities these days. Some government officials have called for more coercive mental health laws to force mentally ill, unhoused people into treatment or shelters, out of sight. Health leaders have questions about why the system is not working and what can be done to make it better.

Why Are People with a Mental Illness Living on the Streets Instead of Being in Hospital Where They Belong?

It is a fundamental tenet of our law that no one can be detained against their will unless they have committed a crime. It is not a crime to be mentally ill or lack stable housing, although some jurisdictions in Canada and the United States are effectively making it illegal to be homeless by forcibly removing encampments and creating bylaws to stop them.

If a person is a danger to themselves or others, or at risk because they are unable to care for themselves due to a mental disorder, they can be taken to hospital pursuant to mental health legislation. A person who is attacking or harassing people on the street may be charged with a criminal offence and taken to court, or they may be taken to a hospital for psychiatric assessment (McKibbon-Thomas and Licht 2024; Szigeti et al. 2024). So, the short answer is that whether someone “belongs” in hospital is determined by existing laws, with the criteria for involuntary hospitalization prescribed in provincial mental health legislation.

This question as it is often asked, though, conveys a judgment that people should be in hospital for their own protection and treatment. But there are many reasons why a person may not seek help for a mental illness or substance use problem. Sometimes, the help they are offered is not acceptable to them or they may have had bad experiences in hospital. Sometimes, they are helped for a while and then destabilize and need to return to hospital, but no beds are available. Maybe they lost their job or housing, or their income has dropped due to disability. Or perhaps, due to their addictions (for example, alcoholism or a dependence on opioids as a result of an injury), they cannot maintain a job or keep their housing. It is often a series of incidents that add up to a massive failure of the main determinants of health – housing, income, education, employment – and they have to start over.

How Does a Person with a Mental Illness Get Into a Psychiatric Hospital?

A person who wants help can ask for a referral to a specialist such as a psychiatrist, psychotherapist or social worker. If they do not have a family physician, or cannot afford therapy, or if they want to be hospitalized for their own safety or health, they can go to a hospital emergency department. Whether they will be admitted or not depends on the nature and severity of their illness and the availability of beds. Most psychiatric units generally operate at capacity, so they may have to wait for admission.

If a person is not willing to ask for or get help themselves, they can be involuntarily committed to hospital in accordance with provincial mental health laws. While this article describes Ontario law in some detail (with differences noted, where applicable), the criteria and process for committal are relatively consistent across Canada, as they must all comply with the Canadian Charter of Rights and Freedoms.

In Ontario, a person may be detained in hospital against their will if they are causing or threatening harm to themselves or others, or if they are at risk because of a lack of self-care (Mental Health Act 1990). A police officer can take anyone to hospital for an examination if they believe the person is suffering from a mental disorder causing them to threaten harm to themselves or others. Police can act solely on information provided by witnesses to the behaviour.

Any physician can decide that a patient should be admitted involuntarily, if they abide by the requirements of the mental health legislation in their province or territory. For example, in Ontario, a physician who has examined a person recently can complete an Application for Psychiatric Assessment (APA), provided they believe the person's harmful behaviour is due to a mental disorder. This authorizes police to take a person to hospital within the next seven days.

An APA can also be completed by any emergency department physician. If the hospital is not a designated psychiatric facility, the person will be transferred to one that is. This can take days and can cause difficulties for the hospital personnel who must look after a distressed and unpredictable patient, particularly in remote communities. In this situation, collaboration and strong working relationships are imperative to make the system work for patients, emergency medical services (EMS) and hospital personnel.

Under Ontario's Form 1, a person can be held up to 72 hours for observation and assessment and there is no right of review. The person cannot be treated or restrained without consent unless they pose an active threat of harm to themselves or someone else.

If, after the assessment period, the person meets the criteria for committal, they will be admitted involuntarily unless they choose to stay. If the person does not meet the committal criteria (i.e., they are not threatening harm to themselves or others and are able to care for themselves), they will be released. If committed, the person can be held for up to two weeks. At this stage, the person has the right to apply to a tribunal for a review, although this is rarely successful. The patient can then file a legal appeal, but this can take months; by the time the appeal is heard, the patient will often have been released. If, after two weeks of involuntary admission, the person is still a threat, further committal can be authorized in stages. As each new form is completed, the person has a right to a review.

In some provinces, such as British Columbia (Mental Health Act 1996), Saskatchewan (Mental Health Services Act 1986), and Alberta (Mental Health Act 2000), a person who is involuntarily committed can be treated without consent, including under a “deemed” consent order. This law is being challenged in court on Charter grounds (Maclaren v. British Columbia [Attorney General] 2018; British Columbia [Attorney General] v. Council of Canadians with Disabilities 2022). In Ontario, a person has the right to refuse treatment if they are capable of making that decision. If they are incapable, a substitute decision maker makes the decision for them.

Why Do Psychiatric Hospitals Not Keep People Longer?

No one can be held against their will unless they continue to meet committal criteria. A person may be released if they do well in hospital and are no longer a threat to themselves or others, even if they are likely to deteriorate after they leave or do not have stable housing, sufficient income and/or meaningful work or other activities.

Why Does the Law Allow a Person to Refuse Treatment When They Are Too Mentally Ill to Know What Is Good for Them?

Ontario law is based on two key values: autonomy in personal decision making and the right to liberty. These values are enshrined in the Canadian Charter of Rights and Freedoms in the Canadian Constitution (Constitution Act 1982) and in the Ontario Health Care Consent Act (1996) and Substitute Decisions Act (1992). A person can be involuntarily committed because of their behaviour but may still be capable of consenting to and refusing treatment. The test for capacity is the same for all medical treatments: whether the person can understand and appreciate the nature of their illness and the treatment proposed, and the consequences of having or not having the treatment. All health professionals governed by the Health Care Consent Act (1996) – from psychiatrists to massage therapists – are obligated to make this determination when treating someone. In the case of mental illness, if a person understands they are ill, that the proposed treatment has certain effects and side effects and what can happen if they do not have the treatment – as explained by a physician – they have the right to consent to or refuse the treatment, just like a patient being treated for a physical illness. If they are found to lack capacity to make a decision, they have a right to have that finding reviewed by a tribunal and further appealed to court. If the incapacity finding is ultimately confirmed, treatment may begin with the consent of a substitute decision maker. However, long periods can elapse before appeals are heard, leaving the patient untreated.

Medications for serious and persistent mental illnesses often have undesirable side effects, especially initially, and can take a while – weeks or months – to work. They can make people feel drowsy, dizzy, confused, tired and/or physically uncoordinated. These effects can prevent a person from working and carrying on their normal activities almost as much as the illness itself; thus, it is understandable that a person might refuse treatment if they can understand and appreciate all of this.

Some provinces have bypassed the requirement for consent by including “need for treatment” as a condition of involuntary committal. Committal gives the hospital the right to treat the person, even forcibly. This approach assumes the illness or substance use disorder makes the person incapable of making the decision, and that it is in the person's “best interests” to be treated.

While some mental illnesses can be stabilized with forcible injection of medication, this experience can add to an already-traumatized person's distress and is not a long-term solution. Sooner or later, recovery requires that the person participate actively in treatments, such as group or individual therapy. Many think that if a person who uses substances is committed to hospital or a rehabilitation facility and gets sober, they will stay well. Unfortunately, unless the person engages in their own recovery, it is unlikely to succeed for long. Programs that are publicly funded are time limited due to cost, and few individuals can afford the high cost of private addiction treatments that have longer lengths of stay and potentially more sustained recovery. Also, there is clear evidence that a person who is released after a period of abstinence is at higher risk for overdose if they use substances again (Arbour and Clark 2024; Nenn n.d.).

Can the Law Be Used to Keep People with Mental Illness Housed and Healthy?

Proposals have been made to change the law to force people with mental illness and addiction into detention and treatment (Ontario's Big City Mayors 2024; McKibbon-Thomas and Licht 2024; Szigeti et al. 2024). Any such moves will be challenged on Charter grounds, including its protection of the right to life, liberty and security of the person; the right to be free of cruel and unusual punishment; the right to not be discriminated against on the basis of mental or physical disability; and others. Governments could get around these rights by using the notwithstanding clause of the Charter, but that is a drastic move. There would be considerable confusion until the law was settled and there might be reluctance to enforce the law because detaining people against their will risks lawsuits if the law is overturned.

There is also a serious system capacity issue. How many places (facilities, beds) would be needed to institutionalize people who are mentally ill or addicted and on the streets? Across Canada, in any given year, 235,000 people experience homelessness; in Toronto in 2024, more than 93,000 people were on the waiting list for social housing in Toronto (CIHI 2024; Canadian Observatory on Homelessness n.d.). Every night, up to 5,000 people in Toronto are unhoused, and the city's shelter system cannot keep up (City of Toronto n.d.; Fred Victor n.d.). If, under this hypothetical law, 50% of all unhoused people qualified for involuntary detention because of their substance use or because they were considered mentally ill, then a conservative number would be 2,500 people in Toronto alone. That is approximately five hospitals in bed numbers, or one or two new jails. These would take time and money to build and staff, and would constitute only temporary shelter – not housing.

For both legal and system capacity reasons, this would be a very expensive and tumultuous course of action. A much better and more humane approach would be to invest this money and effort into services and support to help people recover and be housed. There is also good evidence that a basic annual income would help people get back on their feet (Dabu 2024; Government of Ontario 2024, February 5; Greenwell 2022; Pate n.d.), but it remains to be implemented in Canada.

Why Are People Not Getting the Help They Need?

Hospitals and community programs for people with mental illness and addiction are under-resourced. While many countries spend 10–13% of their health budgets on mental health, Canadian jurisdictions spend 7%, on average (CAMH n.d.). Mental health has always been the “poor cousin” of the health system in terms of priority for funding (Standing Senate Committee on Social Affairs, Science and Technology 2006; Mental Health Commission of Canada 2012). Pervasive stigma, historical prejudice and discrimination against people with mental illness may be at the root of this situation. Past treatments for mental illness have sometimes been unsuccessful and even harmful. While significant progress has been made in the use of evidence-based treatments and recovery, with comprehensive follow-up support, the public and even health professionals are often not aware of this.

There are long waiting lists for many services, especially housing. Ontario has funded a range of community services and housing to support people outside of hospital, but it is never enough to meet the need. People who get into subsidized housing often remain there because they cannot afford to move into market-priced housing. The idea of “transitional” housing is valid only if there is something to transition into.

There is good evidence for the effectiveness of programs such as Early Psychosis Intervention, Assertive Community Treatment, Intensive Case Management, Housing First and others. But access is always an issue. These programs need to be properly staffed and funded to succeed. Somehow, when deinstitutionalization happened in the 1960s and 1970s, the idea took hold that outpatient and community programs would be low cost, and funding levels remain an issue to this day.

That said, community service providers can also present barriers by refusing to accept people with any history of violence or other high-risk behaviours if their programs are not equipped to deal with these issues. They can also find it difficult to get such clients readmitted to hospital if they need it, which discourages the program from taking on clients with complex needs.

None of this is a matter of law; it is about resources and priorities, and how the parts of the system work together.

How Can Health Leaders Improve the System for People with Mental Illness and Addictions?

Despite more than 60 years of deinstitutionalization policies, hospitals and community services often still do not work together well to keep people with mental illness and addictions housed and healthy. Once someone is stabilized in hospital, inpatient staff may search for protective environments with medical oversight before discharging a person; they may not trust that a community program will provide enough supervision.

Health leaders in hospitals and communities can help by learning about the services and programs available to them locally, and by working to connect and collaborate with these services as partners. In some communities, transitional case workers provide an effective bridge between hospital and community services, thus creating a larger circle of care. This works best when the workers are employed by the partner agencies in the community and do “inreach” to patients in hospital.

One example of a hospital taking action on the complex health and shelter needs of their patients is Dunn House, a housing project on hospital grounds. Dunn House is managed and operated by an experienced community housing provider, with services and supports provided by community partners (City of Toronto 2024; Urban Toronto n.d.). This provides long-term housing – not short-term shelter.

Leaders can also advocate for more funding for the supports that people need when they leave the hospital. For example, they can work to equalize pay rates between hospitals and community programs.

Governments need to support community organizations and public hospitals to pay staff well to reverse the increasing migration to private agencies. Pay differentials are driving hospital staff to leave the public system for private agencies while also driving community-based staff to work in hospital instead of in local organizations. This is leaving both community programs and hospitals with high staff turnover, which means constant recruitment and training and poorer care for patients.

Health leaders should ensure that family members, caregivers and program staff get the information and advice they need so they know how best to support someone when they are discharged from hospital and – in the case of family and caregivers – how best to support themselves. Privacy laws are often cited as a reason to withhold information, but education can still take place. Most of all, hospitals should find ways to take the ill person back if they require help again.

Families and caregivers, as well as hospital and community service staff at all levels need education about the law. Psychiatrists and physicians who staff emergency departments or mental health units will usually get some legal training, but other staff may not. It is important that all staff understand the law of committal, consent and capacity, substitute decision making, and personal health information. Law firms that represent hospitals will sometimes provide this service for free to support the hospital's risk management, but community programs may find it harder to access this education and training. Hospital leaders can help by inviting their community colleagues to take advantage of their programs.

Conclusion

The system of hospital and community care for people with mental illness and addiction is under-resourced and fragmented; people can wait months for help. Making treatment mandatory will not change this situation, but it will necessitate large expenditures of resources to house people for a short time (whether in hospitals, jails or shelters) without providing meaningful, long-term solutions such as affordable housing, stable income, healthcare and community supports. Existing laws can be used to commit people to involuntary hospitalization when they are a danger to themselves or others, or at risk because of a lack of self-care. Let's provide treatment and other services that people can readily access to be healthy and self-reliant instead of just detaining them in a hospital or jail.

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