Applying Gladue to Psychiatric Care: Systematic Safeguards for Indigenous Mental Health

(uniquement en anglais)

Matthew C Tse is an associate at Olthuis Kleer Townshend LLP’s Toronto office, building a practice advancing Indigenous sovereignty, rights, and prosperity.

He holds an LLM from the University of Toronto, as well as a JD, a BCL, and a BA from McGill University.

At the University of Toronto, Matthew held the Faculty of Law Fellowship for which he researched the relationship between Canadian and Indigenous legal orders. This essay draws on that research and is part of a broader project of his at the intersection of mental health and Aboriginal law, focused improving wellness and justice in Canada.

The author thanks Professor Abraham Drassinower whose seminar, “Law & Psyche”, inspired many of the thoughts expressed in this piece. Thanks are also expressed to Dr Frank Battaglia, Garima Karia, and Dr Hayden P Nix, whose feedback on earlier drafts of this work were instrumental in its development. Any mistakes are the author’s.

Trigger Warning: This essay discusses topics related to abuse and mental illness. Some content may be distressing or triggering for readers. Please take care of your well-being and proceed only if you feel comfortable.

By: Matthew C. Tse, (Lawyer at Olthuis Kleer Townshend LLP; Faculty of Law Fellow at the University of Toronto (2023–2024); LL.M. (Toronto); J.D. & B.C.L., B.A. (McGill).)

I. Introduction

Mental health law operates between extreme asymmetries. Here, some of society’s most vulnerable individuals are subject to the full force of state power: prone to the deprivation of their liberty for no fault of their own. In Canada, this asymmetry is exacerbated for Indigenous patients, who continue to confront traumas caused by the enduring legacy of colonialism. These traumas manifest in disproportionate rates of psychological disorder among many Indigenous communities, signaling pervasive mental health crises. This essay proposes mental health law reform that incorporates Gladue-like principles into psychiatric care, informing culturally attuned conditions of care. In doing so, psychiatric care can improve rehabilitative prospects and reduce traumas caused by the healthcare environment.

This essay begins by situating Indigenous mental health within the historical context of Canadian colonialism. Section II demonstrates how this colonial history and legacy traumatizes Indigenous peoples through various government institutions, including healthcare. It explores the particular nature of these traumas and how they may distinctively contribute to Indigenous mental health crises. To address these crises, healthcare must be attuned to this colonial legacy. However, using Ontario’s Mental Health Act (“MHA”) as a case-study, Section III demonstrates how mental health law is prone to overlook this colonial legacy where medical practitioners (“practitioners”) are afforded sweeping discretion. Section IV proposes that the incorporation of Gladue principles into mental health law can help counteract the risks posed by practitioner discretion. In practice, this proposal calls for Gladue-like reports at the intake stage as well as complementary institutional support for Indigenous-grounded patient care. A brief conclusory section follows.

II. Background

Mental health is the state of psychological wellbeing that enables individuals to function in their everyday life.¹ Poor mental health can present symptoms of psychiatric disorder, which impede an individual’s cognition, emotional regulation, or behaviour.² There are many recognized forms of mental disorder, which are cataloged in the Diagnostic and Statistical Manual of Mental Illnesses (“DSM-5”).v It is standard practice for medical practitioners to refer to the DSM-5 in making psychological diagnoses. In many Indigenous communities within Canada, the rates of DSM-5 disorders such as depression, substance abuse, and suicidal behaviour are alarmingly high, signaling widespread mental health crises.⁴

II. a) Historical Context

To fully understand the context of these crises, they must be situated within Canada’s wider legacy of colonialism. Upon first contact, Indigenous peoples were confronted by wars, food shortages, and diseases brought by European settlers.⁵ With contact came sweeping efforts by settlers and the Crown to dispossess and dislocate Indigenous peoples from their land.⁶ Then, between 1831 and 1996, the Canadian government used the residential school system as a vehicle for its assimilationist policy to “kill the Indian in the child.”⁷ Over 150,000 children were taken from their communities to residential schools where they were subjected to conditions of neglect as well as physical, psychological, and sexual abuse.⁸ There, children were violently forced to disconnect from their cultures and identities.⁹ They were conditioned to adopt Western civilization and believe that their Indigenous existence was inferior.¹⁰ In similar form, during the 1960s, child welfare services began forcefully taking children away from their families, usually to non-Indigenous families.¹¹ Indeed, the disproportionate amount of Indigenous children in child services continues to this day.¹² Ultimately, throughout the course of Canadian history, settler institutions have systemically traumatized Indigenous individuals, families, communities, and nations.

Medical institutions are no exception to this traumatic colonial legacy. In the early 1900s, eugenic ideologies popularized within Canadian discourse, and healthcare policies and practices began to reflect race-based prejudice to address social issues, such as mental illness.¹³ A particularly harrowing example is the forced sterilization of Indigenous women, which was lawfully practiced until the 1970s.¹⁴ The policy sought to reduce crime, prostitution, and unemployment by targeting “feeble-minded” or “mentally defective” citizens, who, according to statute, “ [risked] multiplication of the evil by transmission of the disability to [their children].”¹⁵ In practice, Indigenous peoples were targeted, often while already vulnerable in hospital care.¹⁶ An overwhelming majority of the Indigenous psychiatric patients brought before eugenics boards  (e.g., 74% in Alberta) were forcefully sterilized without consent.¹⁷ They made up 25% of the sterilized patients despite only representing about 2.5% of Canada’s population.¹⁸

Even in the long shadow of eugenic policy, Indigenous patients continue to face interpersonal and systemic racism in Canada’s healthcare system. Recent examples include Brian Sinclair, who died in a hospital waiting room after being neglected for 34 hours by staff who dismissed him under the race-based assumption that he was drunk and homeless, and Joyce Echaquan, who was also neglected to death while she was subjected to the racist verbal and physical abuse of hospital staff.¹⁹ These widely publicized cases are only the ‘tip of the iceberg’ for the trauma that Indigenous patients experience today, many of which go unnoticed or unreported. Inadequate cultural safety and trauma-informed protocols have real consequences for patient outcomes.²⁰ Without these protocols, Indigenous patients are prone to further traumatization by the very institutions that are meant to help them.

II. b) Recognizing Trauma

The particular nature of these traumas merits emphasis. Not all traumas are experienced the same. Nor are they isolated upon individual experience.²¹ Rather, traumas may also affect the collective mental health of distinct social groups.²² In Canada, the legacy of colonialism traumatizes Indigenous peoples, not only with discrete acts of violence, but also by disrupting the social and cultural fabric of their peoplehood.

In the social sense, colonialism disrupted the ability of many Indigenous peoples to navigate social structures, like family.²³ This can cause “intergenerational trauma,” in which related individuals are indirectly traumatized, impacting their mental health too.²⁴ For example, a residential school survivor may never be exposed to nor learn how to foster a nurturing child-rearing environment, recreating conditions for neglect or abuse.  Assimilationist policies fractured Indigenous social structures, affecting individuals and their communities.

In the cultural sense, many Indigenous peoples were forced to renounce and forget cultural symbols that signify meaning and values, which are foundational to Indigenous identity.²⁵ This includes conceptions of kinship (e.g., with the natural world), wellness (e.g., good mind), or ethics (e.g., reciprocity).²⁶ For example, residential school survivor Sonia Wuttunee-Byrd described the impact of cultural trauma when her braids, which have relational significance in many Indigenous cultures, were forcibly cut:²⁷

I lost my braids, my beautiful hair was cut, I felt like my identity was so confused, I didn’t know who I was. What is even worse is that they started to sexually take advantage of me and abuse me, not one, not two, but many, many people for a very long time, until I was sixteen. I started to really deteriorate. I became very sick and anorexic, and really started to go downhill. At one point I only weighed sixty-six pounds, and that was it, I had no desire to live.²⁸

Sonia’s experience demonstrates how violence can induce further cultural trauma, which can cascade into many forms of mental illness. Traumas are not isolated from each other. They interact and compound.

Cultural traumas similarly occur in the healthcare context, where medical epistemologies are prone to trump Indigenous epistemologies – especially if inadequate institutional safeguards are in place.²⁹ This cultural trauma manifests in systemic omission of Indigenous knowledge, which can be vital to patient care.³⁰ For example, medical practitioners may fail to consider or refuse access to community healers or traditional medicines, overlooking fundamental elements of their patient’s identity and failing to recognize cultural significance. The harm in this failure is not just in the slanted distribution of epistemic goods (e.g., medical information) but also in its denial against a culture in its capacity for knowledge-making and -keeping.³¹ In the mental health context, where patients are among the most vulnerable, this can be especially traumatizing.

On this point, the inclusion of Indigenous knowledge can also be a productive therapeutic measure for psychological recovery, not just preventative of further trauma.³² Culture provides meaning for individuals to navigate embodied life; in clinical terms, it provides interpretive schema through which one’s psyche reacts to physiological sensation.³³ Medical care that is exclusively informed by Western categories may overlook how these categories (e.g., “depression”) signify symptoms, disorders, and expressions of mental illness – all of which are informed by cultural understanding, interacting with each other and shaping the patient’s subjective experience of mental illness and its treatment in turn.³⁴ For example, a psychologist cited in the Royal Commission on Aboriginal Peoples observed:

[a unique] kind of depression that many Aboriginal people experience […]
symptoms can vary in degree and from person to person and culture to culture. It has been suggested by many of my colleagues in psychology and psychiatry that this disorder is virtually endemic among the northern native people but at a subclinical level [it is] simply unrecognized as depression³⁵

Though such symptoms may be anomalous to and overlooked by Western psychiatry, research demonstrates that “[w]hen clinicians incorporate patients’ views of illness and treatment, adjust their communication styles, and negotiate differences in treatment, they improve patient satisfaction, appointment retention, and treatment adherence.”³⁶ Hence, the inclusion of Indigenous healing practices can also improve patient outcomes.

This section has discussed how the current Indigenous mental health crises must be understood in context. Canada’s colonial legacy has caused widespread trauma for Indigenous peoples, perpetuating vulnerability to mental disorder. Canadian healthcare is no exception – but it may be improved by systematic inclusion of Indigenous healing traditions. Such inclusion can simultaneously prevent trauma caused in healthcare and produce better conditions for rehabilitation. The next section will explore how mental health law in Ontario fails to meet these ends.

III. Ontario’s Mental Health Act

Under Canada’s division of power, provinces have jurisdiction over healthcare.³⁷ Accordingly, provincial governments are empowered to enact legislation governing mental health matters. In Ontario, the Mental Health Act (“MHA”) was enacted and governs the operations of psychiatric facilities in the province.³⁸ This section examines the MHAto demonstrate how mental health law falls short of realizing these preventative and productive rehabilitative ends for Indigenous patients throughout the course of patient care.

III. a) Standard of Care

The MHA governs the observation, care, and treatment of persons suffering from mental disorders within psychiatric facilities.³⁹ It is a regime animated by a delicate and dynamic balance between individual and social interests.⁴⁰ In this balance, patient rehabilitation is subject to a standard of care that sways with the status of their mental health and the course of their care.

Generally, medical practitioners are held to an objective standard of care: they are bound to exercise a “degree of care and skill that is reasonably expected of a normal and prudent practitioner of the same experience and standing.”⁴¹ Hence, the adequacy of their care is measured against professional norms of practice. At the same time, their standard of care is also informed by the language of applicable statutes, such as the MHA.⁴² The standard of care is not one of perfection. ⁴³ Nor is it one benefiting from hindsight.⁴⁴ Indeed, there may even be instances when there is no consensus of standard practice.⁴⁵ Rather, practitioners are afforded deference, the degree of which changes according to the task at hand and the practitioner performing it.⁴⁶

III. b) The Statutory Framework for Care

In the context of Ontario mental health, the MHA framework guides practitioners throughout the course of patient care. Their duty of care begins at the intake stage with their decision on whether to admit a person seeking care from a psychiatric facility. The MHA empowers practitioners with discretion to refuse care to persons whose “immediate needs” are not “urgent or necessary” enough to merit hospitalization.⁴⁷ As demonstrated by the cases of Brian Sinclair and Joyce Echaquan, discussed above, discretion in this initial decision may be swayed by prejudice to the detriment of patient health.

If a practitioner determines that that person needs psychiatric care, physicians may conduct a Form 1 examination to make an admission decision. The Form 1 document sets out specific conditions for the physician to consider. If the person subject to the examination (the “subject”) satisfies either Box A (the “serious harm test”) or Box B (the “future harm test”), the initial physician will refer the subject to a second physician for a more thorough psychiatric assessment.⁴⁸ In filling the Form 1, the initial physician must:

1. confirm that they personally examined the subject;
2. confirm that they made careful inquiry into all of the facts necessary for them to assess the nature and quality of any mental disorder symptoms;
3. set out the facts relied upon for their opinion;
4. distinguish facts that they observed from those communicated to them by others;
5. note the date on which the examination was made; and
6. sign the form.⁴⁹

Hence, Form 1s integrate several procedural safeguards for patient care at the intake stage. They require that the initial physician personally evaluate the subject’s medical condition. Additionally, they impose a degree of transparency on the information that supports the assessment. They also ensure that the subject benefits from a second medical opinion. However, despite these safeguards, the open-ended nature of Form 1s still leave considerable discretion to the physician.⁵⁰ The Indigeneity of a patient may not be noted in their chart as a material fact (e.g., because a practitioner fails to see its relevance).⁵¹

The practitioner’s discretion is particularly sensitive because it authorizes the deprivation of the subject’s liberty.⁵² Within seven days of the Form 1 being signed, any person may apprehend the subject and bring them into the custody of a psychiatric facility.⁵³ Once at the facility, the subject may be detained, restrained, observed, and examined by the attending physician for up to 72 hours to assess their mental health.⁵⁴ The character of restraint under Form 1 detention is “no less intrusive than arrest and detention in a criminal context.”⁵⁵ Although, unlike in criminal law, subjects do not have a right to appeal their Form 1 detention.⁵⁶ This forceful process can be traumatic. For Indigenous subjects, it can be especially so; their faultless apprehension and detention may traumatically call to mind Canada’s colonial legacy of taking Indigenous persons from their families and communities under the guise of paternalistic policies.⁵⁷ Yet, Form 1s do not specify Indigenous-specific procedures to protect subjects in this forceful and conceivably traumatic referral process. Indigenous subjects can only hope that the practitioner’s standard of care and their discretion are enough to mitigate further trauma caused at the intake stage.

After the Form 1 psychiatric assessment is complete, the attending physician will determine what status the subject shall be assigned under the MHA and, consequently, the condition of their care. In some cases, the assessment will conclude that psychiatric care is unwarranted – the subject may be refused admission or diverted to another medical practitioner (e.g., pharmacologist).⁵⁸ But in many cases, the assessment will call for further care. At that point, persons who are prescribed observation, care, and treatment by a psychiatric facility are deemed “patients” within the meaning of the MHA.⁵⁹ There are three statuses for patients who are admitted under the MHA: voluntary, involuntary, or informal patients.⁶⁰ “Voluntary patients” choose to consent to psychiatric care and are free to leave the facility on their own volition, even if it is against medical advice.⁶¹ In contrast, “involuntary patients” are detained without their consent.⁶² Lastly, “informal patients” lack capacity to consent and are instead admitted with the consent of their substitute decision maker (e.g., guardian or an attorney for personal care).⁶³ Patient status is not static. The attending physician may change the patient’s status from voluntary to involuntary status if their psychological condition deteriorates, or vice versa if their condition improves.⁶⁴ When patient status changes, institutional recognition of their Indigeneity may be lost, especially if it is not noted in their patient chart, which may delay or foreclose access to culturally attuned care.

For involuntary patients, the unconsented character of detention intensifies the already-sensitive relationship of psychiatric care-giving. Under this status, the severity of an involuntary patient’s psychiatric disorder justifies further encroachment on their autonomy in the name of beneficence. The attending physician is empowered to restrain patient liberty, to varying extents, to prevent any “serious physical impairment” or “serious bodily harm” that the patient is likely to cause to themself or others.⁶⁵ On one hand, the attending physician may prescribe a treatment plan that affects the condition of a patient’s remaining liberty. For example, a patient may not be allowed access to art supplies (e.g., thread for beadwork) because of safety concerns.⁶⁶ On the other hand, an involuntary patient can theoretically be detained for an indefinite length if their psychological condition does not improve⁶⁷ – though, the detention of involuntary patients is subject to mandatory periodic review via Certificates of Renewal (“Form 4”) and Certificates of Continuation (“Form 4A”).⁶⁸ On these dimensions of care (i.e., conditions and length), the liberty of involuntary patients may be encroached.

The MHA creates several safeguards to help ensure that these encroachments are minimally restrictive.⁶⁹ First, before the patient is admitted into involuntary detention, the attending physician must submit a Certificate of Involuntary Admission (“Form 3”) to the Officer in Charge (“OIC”) who confirms that the Certificate complies with the MHA.⁷⁰ Additionally, the attending physician must promptly execute a Form 30 to notify the patient of:

1. the reasons for their involuntary detention;
2. their right to a hearing before the Consent and Capacity Board (“CCB”); and
3. their right to retain and instruct counsel without delay.⁷¹

The attending physician must also promptly connect the patient with a rights advisor who will meet the patient to explain the significance of the Form 3 and their right to review.⁷² These safeguards help ensure that the patient is informed, and their liberty is not arbitrarily restricted. However, they do not address how the patient is managed – the conditions of detention, such as access to Indigenous healing practices.

In MHA landmark case, P.S. v. Ontario, the Ontario Court of Appeal emphasized that the conditions of detention can have “serious ramifications for [a patient’s] liberty interest.”⁷³ The Court added that “[t]he unnecessary ‘trammeling’ of liberty can often lie in the precise conditions attached to the order and not just in the general mode of detention.”⁷⁴ For example, in P.S., the Court found that the involuntary patient (who was deaf) was unnecessarily held in a maximum security facility and also unnecessarily deprived of access to an interpreter, encroaching on their equality rights, which are protected under section 15 of the Charter.⁷⁵ An analogous finding can be made for Indigenous involuntary patients who are unnecessarily refused access to traditional medicines, encroaching on their Aboriginal rights, which are protected under section 35 of the Constitution Act, 1982.⁷⁶ Although P.S. is about a later stage of care, these facts may also give rise to the ‘unnecessary trammeling of liberty’ at the admission stage where the CCB is without jurisdiction to consider the conditions of detention. At the admission hearing, the CCB cannot make an order for certain conditions. Rather, it will only decide whether the MHA prerequisites for admission have been met.⁷⁷ Hence, the safeguards at this stage fall short of protecting adequate conditions for involuntary detention. For Indigenous patients, the CCB cannot weigh in on whether the attending physician should have considered certain detention conditions, such as access to traditional healing practices.

The MHA was amended in 2015 to partly address this shortcoming. Section 41.1(1) was added, which empowered the CCB to make certain orders when it confirms a patients Certificate of Continuation.⁷⁸ The patient was also empowered with the right to apply for a section 41.1(1) order each time a Certificate of Continuation is confirmed.⁷⁹ Under this section, the CCB may make one of the following orders per confirmation:

1. transfer the patient to another psychiatric facility (if the patient does not object);
2. place the patient on a leave of absence for a designated period on the advice of a physician;
3. direct the OIC to provide the patient with a different security level or different privileges within or outside the psychiatric facility;
4. direct the OIC to allow the patient to be provided with supervised or unsupervised access to the community; or
5. direct the OIC to provide the patient with vocational, interpretation or rehabilitative services.⁸⁰

Several of these options offer the possibility of access to traditional medicines (e.g., sweat lodges or smudging), community programming (e.g., healing circles), or alternative healing practitioners (e.g., healers or elders). Indeed, MHA case law suggests that such possibilities are particularly appropriate: the CCB should only make section 41.1(1) orders if it is “satisfied that the substance of the proposed order would not be made in the course of normal practice.”⁸¹ While physicians may be generally aware of Indigenous conceptions of wellness and healing, their competence to prescribe it is dubious – let alone ‘normal practice.’ Section 41.1(1) can provide Indigenous patients with relief by ordering Indigenous care which is normally overlooked.

With that said, section 41.1(1)’s relief is limited. These orders are only available after the patient has undergone their Certificate of Involuntary Admission and three Certificates of Renewal, which can take up to six and a half months after admission into involuntary detention.⁸² But, as the P.S. Court acknowledged, only about 2% of involuntary patients remain in the hospital that long. Hence, the other 98% are not afforded the protection of section 41.1(1) orders. The overwhelming majority of psychiatric patients in Ontario are ultimately subject to the attending physician’s discretion; the rest must wait several months before they can appeal the conditions of their care. This is an inadequate standard for Indigenous patients, whose recovery may be impeded or worsened by a lack of access to culturally attuned healing practices.

In summary, this section has highlighted where the MHA fails to consider Indigenous healing traditions, risking impediments to patient rehabilitation. From the intake stage to long-term detention, there is simply too much deference to practitioners for the care of Indigenous patients where their discretion may be impaired by bias, prejudice, ignorance, incompetence, or simple human error. Further, there are too few paths to appeal conditions of care under the MHA regime, which are available too late. The point of this section is not to blame practitioners. Yes, more cultural training can help. But training is far from a panacea.⁸³ The weight of institutional shortcomings should not fall solely nor primarily on the shoulders of those who are committed to the care and the well-being of their patients.⁸⁴ Mental health law needs systematic change to address its systemic shortcomings in the psychiatric care of Indigenous patients.

IV. Reforming Mental Health Law

This section proposes that mental health laws, such as the MHA, should apply Gladue-likeprinciples to address systemic shortcomings that impede the psychiatric care of Indigenous patients. In Canada’s criminal law context, sentencing judges are required to apply Gladue principles as a systematic safeguard to address the overincarceration of Indigenous peoples. Likewise, the pervasive mental health crises among Indigenous communities calls for parallel principles to apply in the mental health law context.

This section begins by demonstrating the doctrinal applicability of Gladue to mental health law. It then proposes two changes that should be implemented by applying Gladue: Gladue-like reports at the intake stage and institutional support for culturally attuned care. Ultimately, these reforms do not call for the abandonment nor override of Western medicine. Rather, they propose a braiding of epistemic traditions to achieve a broader, pluralistic sense of wellness.⁸⁵ These changes can help systemically mitigate cultural trauma and foster culturally attuned conditions for rehabilitation.

IV. a) The Applicability of Gladue

Gladue principles originate from, R v Gladue, a Canadian landmark case that ruled on sentencing principles required under section 718.2(e) of the Criminal Code.⁸⁶ Section 718.2(e) requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” In Gladue, the Supreme Court of Canada emphasized that this section requires that sentencing judges consider:

1. The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.⁸⁷

In this sense, the Court clarified that sentencing must weigh backward-looking considerations to assess culpability and forward-looking considerations to optimize rehabilitation. In a similar way, healthcare practitioners should look back to assess the impact of systemic and historical factors on a patient’s psyche, while also looking forward to culturally attuned care that can improve patient recovery.

While Gladue is jurisdictionally anchored in the Criminal Code, it may have application to mental health law by analogy. In P.S., the Ontario Court of Appeal emphasized that:

[psychiatric detention] closely resembles that faced by those who are detained after being found unfit to stand trial or not criminally responsible on account of mental disorder (“NCR”). This brings […] involuntary committal into the category of “close or analogous to criminal proceedings”, where greater judicial vigilance is required.⁸⁸

NCR proceedings in Ontario are held by the Ontario Review Board, which is not a sentencing court and thus not immediately bound by section 718.2(e) sentencing principles.⁸⁹ Nevertheless, in NCR jurisprudence, the Ontario Court of Appeal has held that the Board has a positive duty to exercise its inquisitorial powers “to obtain [Gladue-like] information where it would be pertinent and relevant to the disposition it is asked to make.”⁹⁰ Likewise, Gladue-like information should be considered by practitioners in providing psychiatric care. The analogous nature between psychiatric and criminal detention should give rise to a practitioner standard of care that considers the impact of Canada’s colonial legacy and the rehabilitative benefits of culturally attuned conditions. For certainty, provincial legislatures should amend their mental health laws to include sections like 718.2(e) of the Criminal Code to systematically require these Indigenous-specific considerations of practitioners.

IV. b) Reform, in Practice

IV. b) i) Gladue-like Reports

Fundamentally, Gladue principles are about “providing necessary context for understanding and evaluating the case-specific information presented.”⁹¹ They do not override the sentencing judge’s discretion.⁹² Rather, they provide judges with a fuller, culturally situated understanding of the offender’s subjective context to ensure that appropriate sanctions are made – not just considering the punitive purposes of criminal law, but also rehabilitation and reintegration of the offender.⁹³ Similarly, in the NCR context, Gladue-like principles help inform Review Boards on what appropriate placement, culturally specific needs, and community reintegration looks like for a particular accused Indigenous person.⁹⁴ In mental health law, they can likewise help inform practitioners for the purposes of placement, needs, and community reintegration decisions.

Mental health law empowers practitioners with the discretion to collect relevant patient information and record it in their chart. For example, under the MHA, the OIC of a psychiatric facility is empowered to:

collect, use and disclose personal health information about a patient, with or without the patient’s consent, for the purposes of, (a) examining, assessing, observing or detaining the patient in accordance with [the MHA]; or (b) complying with Part XX.1 (Mental Disorder) of the Criminal Code (Canada) or an order or disposition made pursuant to that Part.⁹⁵

The MHA defines “personal health information” in accordance with the Personal Health Information Protection Act, 2004, which includes “information about an individual in oral or recorded form [which may relate] to the physical or mental health of the individual.”⁹⁶ A patient’s Indigenous identity and context within the legacy of colonialism may fit within this definition of personal health information. However, the recording of this information is ultimately subject to the discretion of the practitioner and the OIC. Empowerment is not requirement. Instead, mental health laws should require that Gladue information be recorded for any self-identifying Indigenous patient as soon as possible at the intake stage to inform the entire journey of their care and rehabilitation.⁹⁷

In practice, Indigenous-related personal health information should be obtained by a form resembling Gladue reports. Gladue reports are the product of a holistic investigation and interviewing process that focuses on the specific Indigenous context of the offender, in an individual and communal sense.⁹⁸ A similar investigatory process should be integrated into psychiatric intake (e.g., during Form 1 assessment). In the mental health context, this process should investigate three broad inquiries, which will form the contents of Gladue-like reports. First, it should investigate how Canada’s colonial legacy continues to impact the patient’s community, and note how this may affect the individual patient’s mental health (e.g., intergenerational trauma or cultural trauma); though, Gladue does not require that causal links be established.⁹⁹ This inquiry should not result in generic comments about colonialism, decontextualized from the patient, which can be harmful rather than helpful.¹⁰⁰ Second, the investigatory process should note the extent to which the patient has already received or sought care grounded in Indigenous healing traditions or community practices.¹⁰¹ This can help the investigator gauge the patient’s preferences and the efficacy of such care. Third, the investigatory process should consult elders, healers, knowledge keepers, and service providers from the patient’s community to discern relevant Indigenous healing traditions, practices, and laws.¹⁰² This consultation should help the investigator propose plans of treatment, which may be pursued at various stages of patient care, diverting from mainstream healthcare to more culturally attuned options.¹⁰³ In sum, this content should form Gladue-like reports, which should be recorded and held on file with the rest of the patient’s health information, accessible to practitioners providing care at each stage of rehabilitation, and open to updates. In doing so, these reports can help safeguard against the risks that are derived from practitioner discretion.

IV. b) ii) Institutional Support

While Gladue-like reports can help safeguard against the risks of practitioner discretion, their efficacy will require wider institutional support. There are two broad aspects of this institutional support.

On one hand, psychiatric facilities should have staff that specialize on Indigenous patient care. In the criminal law context, Gladue reports are “written after a number of extensive meetings with an empathetic peer.”¹⁰⁴ An ‘empathetic peer’ should also assist in the mental health law context to help build a relationship of trust, mediating what can be a traumatizing environment. To achieve this, they should be trained to cultivate trauma-informed environments, which recognize, navigate, and address the particular traumas of the Indigenous-colonial experience in a safe, collaborative, and compassionate manner.¹⁰⁵ This empathetic peer should also be trained to reflexively check the impact of their own identity in creating this environment.¹⁰⁶ In doing so, the empathetic peer can create more welcoming conditions for the patient to share their background, facilitating the drafting of Gladue-like reports.¹⁰⁷ Mental health law frameworks should also consider keeping these empathetic peers involved with patients throughout the course of their rehabilitation (e.g., with follow-ups), which can help build patient care continuity and stability while also enabling opportunities for them to keep the Gladue-like report up to date.

On the other hand, the efficacy of Gladue-like reports will depend on the availability of alternative patient care pathways. If practitioners can only consider, but not redirect patient care in practice, then the integration of Gladue principles will make no difference. To avoid this futility, psychiatric facilities must create ethical space in which culturally attuned and Indigenous-grounded practitioners and practices can authentically operate in harmony with mainstream health care. For example, psychiatric facilities should staff elders-in-residence or traditional healers. At the same time, these ethical spaces should expand beyond mainstream facilities and include community-based care. For example, traditional healing institutions should be supported in remote communities, which can improve access and expedite patient intake and community reintegration. For Gladue principles to have an impact on Indigenous mental health patients, psychiatric care needs to incorporate meaningful alternatives to mainstream conditions.

Incorporating these two aspects of institutional support will require considerable resources. There are several reasons why Canadian governments (provincial and federal) ought to provide these resources: legally, politically, and ethically.

Legally, the nature of the relationship between Indigenous patients and psychiatric practitioners is doubly fiduciary. Firstly, mental health law regimes create statutory duties that “necessarily [imply] that in the exercise of the psychiatric facility’s power and responsibility in connection therewith, it will act solely in the patient’s best interests.”¹⁰⁸ These duties, added to discrete instances of doctor-patient relationships, create fiduciary relationships between patients and the larger psychiatric institution in which they are cared for.¹⁰⁹ Hence, the psychiatric facilities have a fiduciary duty to exercise their powers in the best interest of their patient (e.g., support the mitigation of cultural trauma, and improving patient recovery conditions with culturally attuned care). Secondly, a fiduciary duty also arises in the Aboriginal law context, when the Crown assumes discretionary control over specific Aboriginal interests.¹¹⁰ Psychiatric care is a form of discretionary control over Aboriginal interests. This duty generally requires that the Crown exercise this discretionary control “with reference to the Aboriginal group’s best interest.”¹¹¹ In one sense, as demonstrated above, the existence of pervasive mental health crises among Indigenous communities and corresponding need for systematic redress in mental health law is one such interest. In another sense, the section 35 constitutional protection of traditional healing presents another such interest.¹¹² These fiduciary duties impose a higher standard of care than ordinary common law obligations, which should provide the legal impetus for Canadian governments to institutionally support the incorporation of Gladue principles into mental health law to realize the full potential of its efficacy.¹¹³

Politically, the Canadian government is signatory to the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), which recognizes several health-related rights of Indigenous peoples.¹¹⁴ Article 21 recognizes the right of Indigenous peoples to the improvement of their “social condition,” including matters of health.¹¹⁵ In turn, article 21 asserts that states must take “effective measures and, where appropriate, special measures to ensure continuing improvement” of such social conditions, with particular attention to persons with disabilities (e.g., mental disorder).¹¹⁶ Hence, the integration of Gladue-like principles into mental health law can and should be one such measure. Furthermore, article 24 of UNDRIP also recognizes the right of Indigenous peoples to access traditional medicines, maintain their health practices, and access all health services without discrimination.¹¹⁷ In turn, article 24 requires that Canada take the steps necessary to attain the “highest attainable standard” for Indigenous mental health with the goal of progressively achieving full realization of these rights.¹¹⁸ Hence, Canadian governments should commit to institutional supports required to realize the potential of Gladue-like principles. Critics might rebut that UNDRIP as well as the rights and obligations therein are not automatically binding under Canadian law.¹¹⁹ Indeed, international instruments, like UNDRIP, must be incorporated by enactment to have legal force in Canada.¹²⁰ However, UNDRIP remains significant in its explicit recognitions of Indigenous rights as well as corresponding government obligations. It is a tangible document that Canada has endorsed and thus should be held politically accountable to.

Ethically, Canada should be accountable for the horrors that it brought upon Indigenous peoples with its colonial history and legacy. In 2008, the Canadian government formed the Truth and Reconciliation Commission (“TRC”) to comprehensively investigate these horrors and their enduring effects.¹²¹ As the title suggests, the objective of this Commission was to raise awareness about the truth of Canada’s colonial past and to achieve ‘reconciliation.’ The TRC concluded its investigation in 2015 and made 94 calls to action for Canadian governments to address the wrongs brought by colonialism.¹²² Calls to action, 18 to 24, demand reform in health care, including:

• identifying and closing gaps in patient outcomes;
• recognizing, respecting, and addressing the unique health needs of distinct communities;
• providing cultural competency training for all healthcare providers;
• funding Aboriginal healing centres to address physical, mental, emotional, and spiritual harms;
• recognizing the value of, and using, Aboriginal healing practices where requested; and
• increasing the number of Aboriginal healthcare providers in mainstream and community care.¹²³

It has been 10 years since the TRC published its calls to action. Yet, 80 of the 94 calls have not been completed, including those related to health.¹²⁴ The enactment of Gladue principles in mental health and government backing of corresponding institutional supports will help advance these calls to action and the wider objects of reconciliation.

In summary, this section has demonstrated that Gladue principles can apply to the mental health context to help address shortcomings in patient care derived by practitioner discretion. The analogous nature between criminal and psychiatric detention supports the applicability of Gladue principles, which should also be enacted into mental health legislation for certainty. In practice, these principles should require that practitioners conduct Gladue-like reports to ensure patient care decisions are made with fuller recognition of relevant Indigenous patient health information. Furthermore, Canadian governments ought to aid institutional support of these reports with culturally attuned care within mainstream facilities and in Indigenous communities.

V. Conclusion

Ultimately, the goal of this proposed mental health reform is not to displace the authority nor utility of Western medicine. Practitioners should still be afforded deference. Rather, the proposed reform seeks to take a biopsychosocial approach that enhances the efficacy of Western medicine by harmonizing it with culturally attuned care. Indeed, the delicate and complex nature of the human psyche is intertwined at the nexus of physiology and sociocultural experience, making mental health law a particularly appropriate space for such holistic care. Here, Gladue principles should apply to ensure that the subjective experiences of Indigenous psychiatric patients are considered by attending physicians at each stage, mitigating cultural trauma. To achieve this, institutional support should improve access to culturally attuned care to enhance rehabilitative prospects. In doing so, Canadian psychiatric care may move closer to remedying the mental health crises among Indigenous communities. In consequence, Canadian governments may also take a small step forward on the path toward reconciliation.

Endnotes