Litigating in the Time of Coronavirus: Mental Health Tribunals’ Response to COVID-19

Windsor Law School - Yearbook of Access to Justice: Vol 37 (2020)

29 Pages Posted: 18 Dec 2020

See all articles by Ruby Dhand

Ruby Dhand

Thompson Rivers University - Faculty of Law

Anita Szigeti

Anita Szigeti Advocates

Maya Kotob

Anita Szigeti Advocates

Michael Kennedy

York University, Osgoode Hall Law School

Rebecca Ye

University of Windsor Faculty of Law

Date Written: December 15, 2020

Abstract

People with mental health and addiction issues are disproportionately affected by COVID-19 given the elevated risk of contracting COVID-19 within psychiatric facilities. The impact of the pandemic on this extraordinarily vulnerable population includes the potential for large outbreaks and multiple deaths. There is also the increased risk of serious psychological harm, exacerbating preexisting mental health and substance use issues and in turn elevating their risk to themselves and/or others. In Part I of this paper, we analyze the procedural barriers to access to justice that arose as a result of the initial responses to COVID-19 by the Consent and Capacity Board [CCB] and the Ontario Review Board [ORB]. In Part V, we include a brief report on how appeals taken from both tribunals have been handled throughout COVID-19 to date. In Part VI, we analyze the discretionary and systemic barriers experienced by people with mental health and addiction issues appearing before the CCB and ORB during COVID-19. We critique recent mental health law cases during COVID-19 where deprivations of liberty interests and substantive equality have occurred, and access to justice for people with mental health and addictions issues has been denied, suspended or impaired. Through a legal analysis of how the pandemic has impacted this vulnerable community of litigants, we hope this research will result in further advocacy and education to prevent outbreaks and death, improve health care practices, and increase access to justice.

Keywords: Mental Health Law, Mental Health Tribunals, Consent and Capacity Board, CCB, Ontario Review Board, ORB, Mental Health Law, Mental Health, Litigation, Law and Mental Disorder, Law and Mental Health

Suggested Citation

Dhand, Ruby and Szigeti, Anita and Kotob, Maya and Kennedy, Michael and Ye, Rebecca, Litigating in the Time of Coronavirus: Mental Health Tribunals’ Response to COVID-19 (December 15, 2020). Windsor Law School - Yearbook of Access to Justice: Vol 37 (2020), Available at SSRN: https://ssrn.com/abstract=3749772

Ruby Dhand

Thompson Rivers University - Faculty of Law ( email )

900 McGill Road
Kamloops, British Columbia
Canada

Anita Szigeti

Anita Szigeti Advocates ( email )

Canada

Maya Kotob

Anita Szigeti Advocates ( email )

Canada

Michael Kennedy (Contact Author)

York University, Osgoode Hall Law School ( email )

North York, Ontario
Canada

HOME PAGE: http://https://www.osgoode.yorku.ca/

Rebecca Ye

University of Windsor Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4
Canada

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