In JOS v RCMP et al, 2023 ABKB 266, the Court of King’s Bench (the Court) heard an appeal of a Community Treatment Order (CTO) pursuant to s 9.1 of the Mental Health Act (the Act), which had been upheld by the Mental Health Review Panel (the Panel) pursuant to s 37(1) of the Act. In short, the Court overturned the CTO. The Court found the Act had been amended in 2021 following a series decisions of the Courts, and this amendment changed the definition of mental disorder to exclude persistent impairment caused solely by an acquired or congenital irreversible brain injury as a “mental disorder.” The evidence of the treating psychiatrist, Dr. Ogunsona, failed to prove that this definition was met and the CTO was accordingly overturned.
The patient (JOS) had been repeatedly admitted to the Northern Lights Health Centre in Fort McMurray, Alberta, where she was regularly treated by Dr. Ogunsona.
On December 7, 2022, Dr. Ogunsona declared JOS incompetent to make treatment decisions. JOS appealed to the Review Panel, which refused to vacate Dr. Ogunsona’s declaration.
Prior to her release on January 10, 2023, Dr. Ogunsona prepared a CTO, which was verified and agreed to by another physician, Dr. Ambersano, of the same facility. The CTO required JOS to be medicated by an injection of antipsychotic medication once per month, attendance at appointments with her psychiatrist to be reassessed for mental health and medication effectiveness and participation in ongoing community support.
JOS opposed the CTO, appearing before the Panel, which upheld Dr. Ogunsona’s Order on February 2, 2023. JOS appealed to the Court of King’s Bench, pursuant to s 43(1) of the Act.
The evidence of Dr. Ogunsona before the Court
Dr. Ogunsona testified he had known JOS for at least three to four years while she was receiving ongoing sporadic care from himself and his colleagues.
Dr. Ogunsona testified JOS was diagnosed with paranoid schizophrenia and she is not voluntarily compliant with treatment for that illness. Dr. Ogunsona went on to describe JOS’ history of admissions and care. During the period from March 2020 to November 2022, JOS underwent what the Court referred to as a “cycle of admissions” of varying lengths under Form 10 Warrants by the RCMP. Observed delusions, paranoid behaviour and aggression towards RCMP officers were also noted. JOS attacked Dr. Ogunsona on August 5, 2020. JOS was involuntarily detained for several 30-day periods and was deemed to lack decision-making capacity during several of these admission periods.
In December 2022, JOS was again involuntarily detained in hospital. This detention was upheld on appeal by JOS on January 10, 2023. Some time later, Dr. Ogunsona was satisfied the detention order could be replaced with a CTO, the terms of which require that JOS receive a monthly injection, she attend an outreach support agency twice a month and hopefully, but not necessarily, attend Dr. Ogunsona’s clinic once a month.
Dr. Ogunsona testified that he believed JOS’ illness meets the definition of a mental disorder, but was not able to say whether the mental health conditions affecting JOS in this way were inherited or caused by trauma. 
The evidence of JOS
JOS was self-represented and the court commented on her respectful and attentive nature in the courtroom. Additionally, JOS led evidence addressing the issue of a mental disorder, and that hearing something others do not can be attributable to other sources, including trauma, anger or stress.
JOS admitted to her history of aggression, including public outbursts and striking Dr. Ogunsona. She explained the reasoning as her reaction to a perceived threat to her liberty and as assertions of her rights. She asserted that she does, in fact, have an illness and that she will seek medical attention. She described being subjected to detention orders as “psychotic and satanic.” The Court observed that her belief system and state of mind have stayed consistent through her admissions and submissions to the Panel. 
The Court emphasized that, on appeal, the burden of proof is on a balance of probability and rests with the Respondents to prove that the criteria for the CTO are met. The Court found that on the face of the evidence led, all the conditions of the Act have been well made out, except one.
The Act was amended in 2021, in response to JH v Alberta (Minister of Justice and Solicitor General), 2019 ABQB 540 and JH v Alberta (Minister of Justice and Solicitor General), 2020 ABCA 31. These cases found that detention provisions in the Act were of no force and effect, as they infringed ss. 7, 9 and 10 (a) and (b) of the Charter. Following this, the legislature amended the definition of mental disorder to:
““mental disorder” means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary demands of life, but does not include a disorder in which the resulting impairment is persistent and is caused solely by an acquired or congenital irreversible brain injury.” (emphasis added)
The Court found that while Dr. Ogunsona was specifically asked the cause of JOS’ mental disorder and he was not able to state whether it was an organic illness or caused by trauma. Further, the Court was unable to agree with the Board that JOS’ persistent impairment was not caused solely by brain injury, as there was nothing in the lengthy medical record supporting this conclusion. Accordingly, no evidence has been led that JOS suffered from a mental disorder allowing her to be subjected to a CTO.
The Court acknowledged that JOS would likely have benefitted from the CTO, but asserted that she did not meet the requirements for a CTO, and accordingly, it could not be used. The Court further recognized that the outcome means some persons who suffer from mental illness will “fall through the cracks.” This new restriction on the definition of mental disorder may well create gaps for those with traumatic-based brain injuries that are not treatable, and for whom there are no community supports in place, but they are bound by the definition as it exists, no matter how narrow it may be.
Following the revisions to the Act in 2021, the definition of “mental disorder” is relatively narrow. CTOs and Detention Orders are only available as treatment options where a lasting impairment was not caused solely by an acquired or congenital irreversible brain injury. The Act is silent on what steps can be taken by health care providers for patients suffering from these injuries.
In making this amendment, whether intentionally or not, the legislature has created – in the words of the Court – “a gap in strong supportive care” available to persons suffering from mental illness caused by acquired or congenital brain injuries.
It remains to be seen whether further amendments, following the holding in this case, are forthcoming to reduce or eliminate this consequential gap in treating vulnerable persons.
 RSA 2000, c M-13
 JOS v RCMP et al, 2023 ABKB 266 at para 2.
 JOS v RCMP et al, 2023 ABKB 266 at para 3.
 JOS v RCMP et al, 2023 ABKB 266 at para 4.
 JOS v RCMP et al, 2023 ABKB 266 at para 5.
 JOS v RCMP et al, 2023 ABKB 266 at para 5.
 JOS v RCMP et al, 2023 ABKB 266 at para 9.
 JOS v RCMP et al, 2023 ABKB 266 at para 10.
 JOS v RCMP et al, 2023 ABKB 266 at paras 14-15.
 JOS v RCMP et al, 2023 ABKB 266 at para 17.
 JOS v RCMP et al, 2023 ABKB 266 at paras 12, 14, and 22.
 JOS v RCMP et al, 2023 ABKB 266 at paras 19, and 21.
 JOS v RCMP et al, 2023 ABKB 266 at para 22.
 JOS v RCMP et al, 2023 ABKB 266 at para 29.
 JOS v RCMP et al, 2023 ABKB 266 at para 25.
 JOS v RCMP et al, 2023 ABKB 266 at para 30.
 JOS v RCMP et al, 2023 ABKB 266 at para 33.
 JOS v RCMP et al, 2023 ABKB 266 at para 34-35.
 JOS v RCMP et al, 2023 ABKB 266 at para 37.
 JOS v RCMP et al, 2023 ABKB 266 at para 38.
 JOS v RCMP et al, 2023 ABKB 266 at para 46.
 JOS v RCMP et al, 2023 ABKB 266 at para 48.
 JOS v RCMP et al, 2023 ABKB 266 at para 49.
 JOS v RCMP et al, 2023 ABKB 266 at para 50.
 JOS v RCMP et al, 2023 ABKB 266 at para 51.
 JOS v RCMP et al, 2023 ABKB 266 at para 54.
 JOS v RCMP et al, 2023 ABKB 266 at para 55.