The Open Court Principle and Mental Health Stigma: What’s the Right Balance?

Early in December, I read a court decision summarily dismissing a lawsuit against a hospital. The plaintiff alleged that the hospital was responsible for putting fleas on his neck that immobilized him, allowing the military to control his mind. The decision was short, to the point, and unremarkable. It is usual in the online world for the author to provide a hyperlink to decisions referred to in the column. I hope that by the end of this column my decision not to hyperlink the decision will be self-evident.

What was striking about this decision was that the plaintiff was identified by name. The judge appeared to accept that the plaintiff was clearly delusional, since he referred him to the Office of the Public Guardian. A CanLII search for “mind control” generates a list of over 50 cases. In a significant minority of those cases, the plaintiff or claimant is identified by name. The cases that are anonymized are, for the most part, mental health law decisions relating to confinement in mental health institutions. The anonymization of cases involving delusional individuals in other tribunals and in the courts is not common.

I have written about privacy and the open court principle before. However, in this column I am focusing on litigants who do not usually request anonymity, but perhaps should receive it.

Any discretionary non-publication or sealing order must be consistent with Canadian Charter of Rights and Freedoms principles. In the leading case of R. v. Mentuck, 2001 SCC 76, Justice Iacobucci set out the circumstances when a publication ban could be ordered:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

The first branch of the test requires that there be a public interest at stake. A serious risk to public interests other than “proper administration of justice” can also meet this branch of the test (Sierra Club of Canada, 2002 SCC 41). As noted by the Ontario Court of Appeal in M.E.H. v. Williams (2012 ONCA 35), purely personal interests cannot justify non-publication or sealing orders: “… the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test”.

Most of the jurisprudence on publication bans relates to the litigant seeking anonymity for themselves. In the case of those with paranoid personality disorders there is often no self-awareness and no request for anonymity. In cases like M.E.H., the person seeking anonymity is often arguing that an open court would “effectively close the courtroom door to a litigant because of the physical and/or emotional consequences to that litigant of maintaining the openness of the courts”. In the case of a delusional litigant, the open court principle does not dissuade them from going to court.

People with delusions, who commence legal action based on those delusions, are usually not receiving treatment and will likely not have a mental health diagnosis. However, we do know that people with delusions may be suffering from a paranoid personality disorder. The DSM-5 defines this disorder as a “pervasive distrust and suspiciousness of other people”. Those with a paranoid personality disorder:

… assume that others are out to harm them, take advantage of them, or humiliate them in some way. They put a lot of effort into protecting themselves and keeping their distance from others. They are known to preemptively attack others whom they feel threatened by. They tend to hold grudges, are litigious, and display pathological jealously. Distorted thinking is evident. Their perception of the environment includes reading malevolent intentions into genuinely harmless, innocuous comments or behavior, and dwelling on past slights. For these reasons, they do not confide in others and do not allow themselves to develop close relationships. Their emotional life tends to be dominated by distrust and hostility.

There will be few cases where a person with delusions will seek anonymization or a ban on identification because of the nature of their mental illness. Given the nature of their delusions, it is almost certain that these individuals will be self-represented. There is some evidence that the number of people with delusions is increasing. In an Internet-connected world and as we move towards more surveillance, it is perhaps inevitable that more and more people will feel that they are being watched and controlled by outside forces.

Why should such cases be anonymized in the absence of any request for anonymity? It is unlikely that being identified as a person with a potential paranoid personality disorder will interfere with their treatment. There is little, if any, literature on treatment of paranoid personality disorder. As already noted, people with this disorder tend to be distrustful and avoid relationships with others. The very nature of the disorder may prevent most with this disorder from seeking treatment. Where the real harm may arise is in the stigma associated with mental illness, and in particular, the stigma against those with paranoid personality disorders.

The Mental Health Commission of Canada has pointed out that stigma is “a complex social process involving many parts, all of which work together to marginalize and disenfranchise people with a mental illness and their family members.” The Mental Health Commission states that stigma occurs at three levels: self-stigma; public stigma; and structural stigma.

Self-stigma occurs when people with a mental health issue accept and agree with negative cultural stereotypes, leading to, among other things, the concealment of their illness from others. Stigma avoidance is thought to be one of the major reasons why the majority of people who meet the criteria for a mental illness do not seek care. Self-stigma is not a significant issue for those with paranoid personality disorders who access the justice system. In many cases, they are not aware that they have a mental health issue.

Public stigma includes the prejudicial attitudes and discriminatory behaviours expressed toward people with a mental illness by the public. Public stigma is based on deeply held prejudices that are resistant to change. Structural stigma occurs at the level of institutions, policies, and laws where those with mental health issues are treated inequitably and unfairly.

The social effects of mental health stigma include exclusion, poor social support, social isolation, poorer subjective quality of life, and low self-esteem. Stigma also has a detrimental effect on treatment outcomes, and can hinder efficient and effective recovery from mental health problems. The less-discussed form of stigma arising out of mental health issues is family or “courtesy” stigma: families, friends, and others becoming subject to prejudice and discrimination because of their association with the person with mental illness. In itself, this is a significant stigma. It also may have a significant impact on the social support that is offered to the family member or friend with a mental illness.

Family members reporting public or self-stigma often feel alienated from neighbors and coworkers, people in a putative support network that might assist the family in its goals. Alternatively, family members may feel ashamed and seek to keep family experiences related to mental illness a secret. Some family members report significant distress because of stigma, which worsens interactions among the family as well as the individual’s ability to cope. This broad and pernicious impact alienates the family from others, serving as an additional barrier to care seeking.

In most cases, it will be difficult to obtain evidence of a direct, harmful consequence to a delusional litigant of being identified in a proceeding. However, as the Supreme Court noted in A.B. v. Bragg Communications Inc., 2012 SCC 46, courts may also conclude that there is objectively discernible harm. That case involved a child and sexualized cyber bullying. Justice Abella referred to the “consistent and deep roots in Canadian law” of the recognition of the inherent vulnerability of children: “the law attributes the heightened vulnerability based on chronology, not temperament”.

In a 2009 decision of the Human Rights Tribunal of Ontario, the adjudicator set out the balancing of interests between an open justice system and the protection of the vulnerable child:

An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. … Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity…

In this case, the applicant is a child. This is significant for two reasons. First, attention to children’s best interests and recognition of their vulnerability are, like openness, fundamental values in our legal system. As noted in Baker v. Canada (Minister Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 67, “Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society”. As the Supreme Court stated in Baker at para. 71, numerous international instruments have “placed special importance on protections for children and childhood”. Second, unlike adult litigants, a child does not make decisions for herself or himself about the Application. The decisions to commence it, what evidence to call and arguments to make, and whether to settle, to name just a few, are usually made on his or her behalf by a parent or guardian.

In the case of mental illness, the law also recognizes – partially – the inherent vulnerability of those who are mentally ill by granting anonymity in cases involving involuntary confinement in mental health institutions. This recognition of the vulnerability of those with mental illnesses is uneven, as we have seen. As we have done with children, we need an open discussion on the appropriate recognition of the vulnerability of those with mental health issues and the right balance between that vulnerability and the open court principle.