What is going on at the East Coast Forensic Hospital?

The death of Greg Hiles last week at the East Coast Forensic Hospital has led to calls for an inquiry and questions about the conditions at the facility.

Serious problems have been consistently raised about the state of the province’s hospitals, nursing homes, and other treatment facilities. Disability rights advocates recently won a Nova Scotia Human Rights complaint against the institutionalization of people with disabilities.

Evidence from patients and staff at the East Coast Forensic Hospital (ECFH) shows that systemic problems also exist in this facility. The ECFH serves people in the judicial system, and is where “court ordered assessments are performed and treatment is provided to offenders diagnosed with mental illness.”

In the past two months, I spoke to over half a dozen patients and former patients, as well as staff members, who have raised serious concerns about treatment in the facility. I attended court to witness a habeas corpus challenge by patients, and sat in on a review board hearing of one of those patients.

Patients testified to infrequent meetings with their treatment teams, lack of release planning, problems with medication, inaccurate diagnoses, lack of culturally competent care and racist comments from staff, lack of programming and access to rehabilitation on the MIOU (Mentally Ill Offender Unit), and an arbitrary system of discipline, among other complaints.

Patients and staff also questioned the effectiveness of the Criminal Code Review Board (CCRB) who make decisions about patients’ restrictions of liberty, and assess their readiness to return to the community. They allege that the Board does not provide independent oversight, and that patients are unable to challenge decisions made by their treatment team.

Patients found NCR (Not Criminally Responsible) allege that they are effectively indefinitely incarcerated in the facility, and that they end up being held in the hospital much longer than their sentences would have lasted had they simply been convicted criminally and placed in correctional facilities.

These concerns about the facility exploded in a habeas corpus application filed by four NCR patients, including Greg Hiles, in June. The patients challenged their transfer from the rehabilitation unit to the more restrictive MIOU. In three days of testimony and cross-examination of staff, the men raised questions about the lack of evidence used to condemn them, and the harm caused by the conditions they were being held in.

More broadly, their questioning raised troubling issues of the treatment culture in the hospital. Three of the four patients are Black, yet there was no indication at any point in the case that staff considered racial bias in their decision making, or that there was culturally competent care in the hospital. Staff has wide latitude in making treatment decisions over which the court does not have jurisdiction, leading to conditions where patients have no real recourse to challenge decisions they see as unjust.

With the apparent suicide of Hiles, serious questions should be raised for the management of the facility, for the Nova Scotia Health Authority, the Minister of Health, and the Premier.

Did the restrictive conditions Hiles testified to in the habeas corpus affect his mental state and contribute to his death?

What is happening to patients in this facility? And who is watching?

The Institution

Patients in the ECFH exist at a vulnerable intersection of health care and corrections. While the ECFH is — as the name indicates — a hospital, the population it serves are criminalized people. Patients face the stigma not only of mental illness, but also of being “criminal,” which renders them particularly powerless.

Over and over in my interviews with patients and former patients, I heard the phrase “I’m not an inmate, I’m a patient.” Operating at this intersection between health and justice, between treatment and incarceration, ethical questions arise about how the facility balances caring for patients with the security concerns of a facility that also employs correctional staff.

A class action lawsuit filed by lawyer Mike Dull against Capital Health illustrates what happens when security concerns override patient rights. In 2012, 33 patients were strip searched at the facility. In the CBC story at the link, patient Ralph Atkinson told reporter Bob Murphy that he felt like he had been raped:

“I’ve been sexually abused when I was younger so it just draws flashbacks back from bad experiences and it just gives you that wrong feeling, like that gut wrong feeling that you know you’ve been violated,” he said in September. 

From the same article, Dull commented on the significance of the case:

The case is important not just for those who were searched that day, but also for future patients, said Michael Dull, the lawyer for the plaintiffs.

“The hospital has immense control over these patients and really at their whim they can subject them to humiliating strip searches,” said Dull. “It’s important that the hospital knows that if they do, then there are consequences.”

The case is scheduled to be in court in January of 2020.

The Correctional Captain who ordered the search of patients in that 2012 instance was Todd Henwood. Henwood continues to work at the facility, and was called to testify in the habeas case earlier this summer.

In 2007, Henwood was one of the officers involved in the death of Howard Hyde. Hyde lived with mental illness. In the report from the 2010 inquiry into Hyde’s death, Captain Henwood’s actions are described. On Page 147:

Cpt. Henwood described his positioning as being “bridged”over Mr. Hyde, controlling the handcuffs with his left hand grasping the link between the manacles.

“My right hand went from being on the floor to on his shoulder. And as he would push up into my body, I would lower the handcuffs back down to the floor.” “I would push the handcuffs back down on the floor and the [sic] ease off the pressure.” Sgt. Prall observed Cpt. Henwood controlling the handcuffs and Mr. Hyde’s right shoulder with his hands.

In November 2007, Cpt. Henwood weighed about 290–300.lbs. He knew the risks associated with applying body weight to a prone prisoner. He also knew that lying on top of a prisoner in a struggle created risks to officer safety.

“Are you an advocate?” In June, the phone rang in my office. Jeremy Williams introduced himself to me as a patient held NCR — Not Criminally Responsible — in the East Coast Forensic Hospital.

Jeremy had filed two habeas corpus applications with the court. The first was seeking to get his liberty from the hospital (in this case, heard separately, the judge ruled she did not have jurisdiction to hear the case). The second habeas application was filed along with three other patients. Their applications argued that they had been accused of trafficking drugs into the hospital, and that, without evidence, they had been transferred to a more restrictive section of the hospital, where they argued they were being detained indefinitely.

There are two sections of the East Coast Forensic Hospital. The wing the patients had been on, known as the rehab wing, allows patients access to the community, visits with family members, and activities and programming. The other section, the one they had been transferred to, is the MIOU, the Mentally Ill Offender Unit. This unit has significantly less freedom. The hospital had been holding them in this section, and staff proposed to create a new locked room in the hospital where these four men, along with two others, would be held isolated from other patients.

Three of the four patients — Jeremy Williams, Marcel Lawrence, and Daniel Ryan — are Black. The fourth applicant, Gregory Hiles, has a sister married to Marcel Lawrence’s uncle. In court, Hiles testified that racial comments had been made to him by staff questioning his association with the other men. One staff member, he said, commented “he’s the wrong colour.”

That these men are Black, or associated with Blackness, matters in this case.

As Jeremy Williams cited in his closing arguments, as shown in a report by former correctional investigator Howard Sapers, Black prisoners are consistently accused of being “gang members,” “drug dealers,” and labelled as trouble makers.

When institutions rely on subjective evidence, research shows, Black people are disproportionately charged and convicted. However, when institutions have to show proof, those numbers go down. For a group of overwhelmingly Black men, accused of being a “ring” bringing drugs into the facility, based on observations of their behaviour repeatedly described by white doctors and staff as “threatening” and “intimidating,” the way Black men are perceived had everything to do with this case.

These men, without a lawyer, spent three days in court challenging the hospital in front of Justice Ann Smith.

When I say challenging the hospital, what I mean is that these men, coming from what the hospital calls “seclusion,” and what the men named “segregation” (the hospital does not use the word segregation, as it claims that seclusion is not used as a punishment, but rather is therapeutic in nature), spent those three days first testifying about the conditions, and then challenging the head psychiatrist Aileen Brunet, hospital administrators, and correctional captain at the facility. Without legal representation, with no legal education, and without access to computers, they argued case law on complicated issues like the jurisdiction of the courts to rule, cross examined witnesses — people with power over them — and put forward arguments about the conditions of their confinement.

And they were good. Cross examining the people with authority over them, the people on whose evidence they can be held in the hospital without release dates, they got their conditions on record. They exposed inconsistencies in the evidence used against them, and the difference in statements by staff. They showed how there was no camera evidence, evidence from strip searches or cell searches, drug tests, or any proof. They showed how the word of one patient to one nurse was used to trigger their transfer and to hold them.

Justice Ann Smith had critical questions for the lawyer for the Nova Scotia Health Authority at a number of points. Listening to the arguments about the hospital’s standard to transfer the patients, she asked “Do you say the hospital has the right to do that without asking the patients what they have to say?” At another point, Smith commented, “Your position is that individuals who are NCR may be moved at will and the hospital owes them no procedural fairness because they have the ability to go to the Review Board.”

Smith’s questions about the process used to place the patients in restrictive conditions revealed something disturbing about the impunity of the clinical staff in making decisions. While the treatment team claimed broad latitude in making therapeutic decisions, questioning by the judge and by the Applicants revealed that the hospital can essentially do to patients whatever it wants to do with little avenue for intervention, complaint, or help.

As in the case where the hospital illegally strip searched dozens of patients, concerns about contraband — which everyone including the men indicated was a serious and ongoing problem in the facility — overrode the rights of patients, as well as their well-being and therapeutic outcomes.

The transport of drugs into a facility where many patients struggle with addictions has a serious impact, and one that staff clearly were challenged in finding any solution to. Doctors turned to security measures to combat drugs.

But maybe we should be asking a different question: What happens when we try to manage health issues of addiction and mental illness in carceral settings? And: Can patients ever get well when their treatment team also acts as police, investigating and condemning them? If psychiatrists have to act as detectives, surveilling and interrogating patients, can trust really be built to create an environment where people can address trauma? The environment in the hospital revealed by the men suggested that something is deeply broken in the ways we try to treat the most serious mental illnesses, the resources we have to do it, and the structures in which that treatment takes place.

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When I tried to explain this case to people, I felt like I didn’t know where to start. The complexities of legal arguments, mental health care, criminalization, race and cultural competency, and the call of the men to have their stories heard, seemed overwhelming to make a path through. Tasked with writing about the case, I put off writing an article, struggling with processing my thoughts.

I was tired; I was depressed about work. I asked myself why I bothered, if anything I wrote mattered anyway. And so, I left it.

Writing about the case now, in the aftermath of the death of Hiles, takes on a morbid kind of urgency. What I once planned on writing about as a victory of unrepresented applicants in fighting injustice now takes on a different significance.

Did Hiles, along with the other men, in arguing this case put into the record evidence that now will be combed through to determine whether the hospital had any culpability in his death? What might have happened if anyone had paid attention to the conditions these men testified to, that they desperately wanted to be heard and known?

And how are patients supposed to be heard when funding for applications like a habeas corpus are very rarely granted? These patients end up crushed by two opposing poles: on the one hand they are deemed NCR, and therefore must be held in the Hospital often for months and years on end, but on the other hand, they are competent enough to represent themselves in court and to face complicated legal arguments.

The men wanted their case heard in a courtroom because they argued that the Board didn’t provide any pushback to or oversight of decisions made by staff. They hoped that by going in front of a judge, their conditions could be changed, and that their claims to injustice would be weighed and validated. And more than that, they wanted their complaints to be public, and for people to know what happens behind locked doors.

This is what I wrote at the time, in a article I never published:

This case is about many things.

It is about mental health, and the conditions of the institutions that are supposed to help and heal. Recent suits against long term care homes brought by people with disabilities have shown the severe violations of rights that take place within so-called therapeutic environments. Throughout the case we heard how the hospital has the right to move patients around without even speaking to them or hearing their side, how the standard they are subject to is not the same standard as a criminal proceeding or even Corrections thus allowing them to do what they want within the context of making a clinical decision, and how conditions like “Therapeutic Quiet” and “seclusion” that engage in solitary confinement practices are used against patients and justified as being part of their care.

This case is also about anti-Blackness in health care and in correctional institutions. It is about what happens when clinical decisions are made without any reference to race or racial bias. In all the descriptions of “behaviour” and “context” given by staff, there was not one reference to race, or any indication that anyone had considered how race might affect the way staff made judgements.

White projections of how Black men make them feel threatened and intimated are responsible for getting Black people killed. Over and over in police inquests, we hear how officers felt threatened. Case study after case study in health care shows how medical staff are impacted by racial bias: doctors believe Black patients feel less pain than white people, and Black people’s symptoms are ignored and minimized. This case showed what happens at the intersection of care and punishment, when Black men are labelled both mentally ill and criminalized, and how that double stigma leaves them powerless and vulnerable to judgements made about them.

It is about the disturbing intersections between health care and corrections, and what happens when decisions that should be about health care defer to correctional ideas of “safety and security.” It raises questions about whether ethical care can take place in these conditions. As the men repeatedly described, despite being patients, they are treated as inmates. “This is not a hospital, it’s a jail,” they argued.

When I wrote about the life and death issues in this case, I nonetheless never imagined that months later, I would be writing about the death of one of the four men I got to know during the process of following this story. A man who left my number with his mother just in case she ever needed anything, and told her that he was talking to me and I was helping. A number his mother found, cleaning off her dresser late at night while she waited for her son’s life support to be turned off. A number she called, because she didn’t know what to do and nobody would talk to her.

Like her son, she too has no funds for a lawyer. She too couldn’t get answers from the treatment team. She too worried about evidence. And she too was willing to fight a battle to get justice, and to have her voice heard.

A decision on the habeas application was issued on July 5 by Justice Smith. The judge decided that the Review Board was the more appropriate place for the arguments about restrictive conditions to be brought. She added:

Had this court determined to exercise habeas corpus jurisdiction, I would have concluded that the decision to transfer the Applicants to the MIOU was unreasonable and unlawful because the decision-making process was procedurally unfair, being based almost entirely on the unverified report of a co-patient. The transfer decision clearly was not made for clinical reasons. This Court recognizes that decisions made by a facility such as ECFH must be afforded significant deference. The hospital’s decision-makers must manage a vulnerable patient population in circumstances that can be volatile. There are legitimate concerns relating to staff and patient safety and health. However, the decision to transfer the Applicants to the MIOU significantly affected their residual liberty rights. As such, each Applicant was entitled to have some procedure that verified the evidence against him…

Despite Smith’s criticism, even as Hiles lay in a hospital bed on life support, the Review Board, reviewing the case of one of the other applicants, upheld the restrictions. The men remain separated from other patients.

The Review Board

The reason why Justice Smith did not have jurisdiction in the habeas application is because there are exceptions to when a habeas can be heard. One of those exceptions in in cases where there is a complete and expert process in place. The Criminal Code Review Board was ruled to fit that exception.

The Applicants argued that despite the Board being in place, they didn’t feel like they got a fair or independent hearing when they challenged decisions made by their treatment teams.

After the habeas hearing, I attended Marcel Lawrence’s review of his Restrictions of Liberty. The hearing was held on July 8, just days after Judge Smith’s decision was released. At that hearing, the Board agreed with the judge that the transfer was “not justified.”

However, the men remained in restrictive conditions. The men have been in these conditions for months.

Marcel was represented by Pat Atherton at his hearing. Atherton was standing in for Kelly Ryan, who usually represents patients at the Board.

In one series of inquiries, Atherton questioned the use of evidence of drug and alcohol consumption as a risk factor. He pointed out that there is no court order saying that Lawrence can’t use substances. “It doesn’t say he can’t drink or have a toke,” Atherton commented, suggesting that cannabis is legal and that any of us can use these substances without punishment.

Atherton also criticized the “indeterminate system” that means that patients can be held effectively indefinitely. While people sentenced to time in prison have a certain release date (as well as access to parole), patients in the hospital are subject to the decisions of the Board. If the Board finds they are still a risk, they continue to be held.

But as Atherton also raised, the risk scale used by clinicians relies heavily on previous criminal convictions. In other words, if risk is determined by someone’s past, and that past can never be changed, then their risk is never lowered.

The Board is asked to balance the therapeutic needs of the patient with the safety of the community, and the possible risk posed by releasing people. One can see it’s a difficult task: they are asked to predict the future, and to balance several competing needs.

One of those needs is that of “public safety.” As in the deportation cases I have worked on, the Board takes the responsibility of the balancing rights of the individual applicant against the perceived threat to the public. But when we talk about the public, who are we imagining?

“The public” protected by policing, or prisons, or deportations, is pictured as white. This means that perceptions of who is unsafe, who is threatening — Black men — enter into these decisions. In court, Williams was described by staff at one point as “eating an apple in front of staff in a threatening manner.” In a Facebook post, I wrote that we can add “apple-ing while Black” to driving, walking, breathing, shopping, studying, and living while Black.

If the Board has no racial lens by which to view decisions that depend upon subjective “calls” as to who is safe or not, Black men will always be seen as the people “we” need protection from. There are no Black people on the Review Board.

In my notes, I have drawn a star and an angry face by a comment calling Lawrence “street smart.” As Lawrence observed to me later, no matter what he does he is judged. If he’s quiet, he’s resistant to treatment. If he speaks up, he’s aggressive. If he’s kind to staff, he’s manipulating them. If they don’t find any evidence, he must be too smart to get caught. There’s no way he can win.

Patients claim that they are unable to raise issues with their treatment, plans, or team with the Board, and that in reality the Board does not provide a check to the hospital.

The Conditions

In his final arguments in court, Jeremy Williams described the actions of the hospital as “despicable,” “horrendous,” and “arbitrary.”

“There is no remedy,” he said, “for years of mental torment and physical deprivation.” In his final statement, Hiles described the pain of his separation from his mother and children and argued that the hearings at the CCRB were “not giving me any relief.”

In his closing statement to the court, Marcel Lawrence described the hospital as “people of power who have no one they need to answer to.” “It’s not about how many times you fall down,” he told the court, “it’s how many times you get up, and if you reach down for help.”

At that point, the men had been held for nearly 30 days in restricted conditions. In the months that followed their case, they continued to be locked down separately from the rest of the patients, in conditions that denied them access to family, programs, and community.

But while the decision to seclude the men in a separate dayroom was unprecedented, patients told me that even normal conditions in the Hospital were difficult.

One patient told me:

This is a jail, not a hospital. The psychological aspect is really horrible. The only program would be the gym. You’re here for a court-ordered assessment; “you’re lucky that we even give you food.” — a lot of the nurses say that. They’re not worried about making people well. Some people aren’t even found NCR, they’re just here for an assessment, but they treat them like they’re children. This isn’t a place for care, it’s a cesspool.

Nova Scotia is one of the places for competent care, you can consent to your own care. It’s kind of messed up that people that come in, and I’ve been in this environment when I can tell if people are well or not well — when people come in and they’re just really upset, they’re getting doctor’s orders saying this person is out of control, we need to give them medicine to calm them down, forced injections. It’s not right.

Patients described psychiatrists overmedicating patients, or prescribing medications that interacted dangerously with patients’ conditions or other medications. (Numerous patients claimed that the hospital gets “kickbacks” from using certain medications. This accusation is not unprecedented. A CBC investigation in 2014 found that mood-altering medications were being over-prescribed to female federal prisoners in Canada, and that the company gave doctors kickbacks for prescribing the drug. At least one staff member corroborated this claim.)

Patients also testified that once they were in the hospital, it was difficult to get out. They described a lack of programming and paths to rehabilitation. Patients described a shortage of transition housing (where patients are housed in bungalows on the grounds before entering the community.) Staff members pointed to a lack of staffing of transition housing. One patient commented:

The place is packed. They’re always complaining they have such high case loads. Why don’t you start releasing people?

The stretched capacities of the facility were confirmed in the testimony of Dr. Aileen Brunet. She indicated that while the facility had tended to be 60-70% full, since 2016 it has been pushing 100% occupancy, and over-occupancy. She also cited a younger population of patients, increased drug use among the patient population, and greater aggression and anti-sociality among the patient cohort.

Patients also complained of “condescending” and even abusive language used towards patients. Some patients recounted hearing racial slurs from staff. Women patients recounted sexually harassing comments from staff and other patients and said they felt unsafe. Patients said they frequently felt “talked down to.”

The staff is saying it’s a hospital, but jail inmates are treated better than we are. 

Staff members also recounted having other staff “turn a blind eye” to hearing racial slurs by patients. “I think race is an issue,” said one staff member, suggesting that Black male patients experienced bias and stereotyping in the facility.

Both patients and staff pointed out a lack of Black medical staff, and no culturally competent care, programming, or racial lens in treatment. Patients cited the risk scale as racially biased, and argued that psychiatric staff had no understanding of their life circumstances, the racism they face, or the ways they are seen as threatening and criminalized.

Patients said they had infrequent meetings with their treatment teams, and that they felt unable to raise issues about their treatment. They described a lack of rehabilitation planning, and a lack of co-operation from the facility when they asked for school or other education or training options.

How is anybody supposed to get help here?

Some patients reported being misdiagnosed, which had a particular impact on their legal status. Psychiatric staff confirmed these changes in diagnosis in testimony in court and at hearings. However, while staff understandably are dealing with complex conditions, the effect of having the wrong diagnosis is that a person who is deemed NCR and who may not actually have a serious mental illness can end up held in the hospital longer than they would have served in a prison.

Patients also described “rampant drug use” in the facility, an assessment echoed by psychiatrists and staff. However, they also alleged that drug and alcohol testing was ineffective, and that false results were sometimes registered. They also said that even if they had clean tests, the results were not believed by treatment teams.

Staff told me that there is not proper training on drug screening or using the breathalyzer, and that often the chain of custody in urine tests is not properly managed.

Staff also alleged “inappropriate” use of Therapeutic Quiet rooms — an observation room with cameras where patients are isolated if they become agitated. They cited a policy which dictates staff use the “least restraint,” but said that this policy was not always followed. Staff members also said that there was “no understanding of trauma” in many of the interactions with patients.

Staff also drew attention to dangerous conditions, and high staff turnover. Concern was also expressed about “safety first” policies around Corrections overriding care needs.

One patient described calling the complaint line “37 or 38 times” and leaving 32 messages. They called the Human Rights office seven times, they said, and left five messages. Patients feel no-one is advocating for them, they have nobody to appeal to, and nobody is watching. They feel that their Board hearings are pointless, and that they are left in the institution far longer than a prison sentence would last, with no way to get out of the facility. They also reported delays in Board hearings, particularly Restriction of Liberty hearings (supposed to be heard within seven days) being postponed.

Why are we being treated so horribly? We’re supposed to be vulnerable people. 

I just want to move on with my life, why am I being held back for so long?

One patient summarized their feelings about the facility:

Someone needs to go in there and bring all this dirt to light.

Conclusion

When I began working on this story I spoke to patients, former patients, and staff. I attended court for the habeas hearing, and witnessed a hearing at the Review Board. I spoke to lawyers, health advocates, and community members about what I was hearing and seeing, and how the Forensics Hospital presents a special challenge to justice advocates as a facility that intersects with health care and criminalization.

I did not know, because I could not know, when I started investigating the facility, that two months after patients brought issues to my attention, I would be sitting with the mother of one of the men I met, trying to hold her hand through the grief and tell her what to do next.

I knew the story was complex, and because it was so complex, I struggled with writing it. I know that me not writing a story did not impact what happened to Greg Hiles, but still, I ask myself if I should have tried harder to shed some light. I hope he knew that his story was heard, as I hope the other men who fought in court, and all the patients in the facility, know that their stories matter.

When I do this work, I do it in a strange meeting place of journalist and advocate. People ask me to document their stories, but they ask because they want something done about it. They don’t just want words, they want action. And so I find myself both sitting in court taking notes, and trying to provide as much support for the people in court as I can. I gather lawyers and ask them to take cases. I end up protesting and challenging the people in power. I listen on the phone for hours, sometimes to “get the story,” sometimes just to provide a sympathetic ear.

I know as I do these things that I am just scratching the surface. There is work to be done reviewing the decisions of the CCRB: are patients correct that the Board sides with the institution? There are questions around NCR findings, and the length of time people are spending in psychiatric hospitals. There are broader questions of the rights of people who are criminalized and found mentally ill. There are ethical questions about how we provide health care in environments that also punish and incarcerate.

There are questions about accountability.

Patients complained about staff and challenged their decisions, but staff also raised concerns about resources and about capacity. There are questions for the province about funding, and about expecting health care staff to do difficult work with challenging populations without adequate support. Staff are being asked to make decisions about how to keep drugs out of facilities and protect patients at the same time as they also have to manage complex health needs, try to treat and rehabilitate patients, keep them safe, and deal with a changing patient population. Correctional staff are asked to be mental health workers yet not given training that they need.

When someone dies in custody in Nova Scotia, there is no automatic inquiry. But if we do not investigate and ask questions about what happened, if we do not understand the broader context, if we do not wonder why the recommendations from the Hyde inquiry have not been implemented, if we do not ask if there is a better way to treat people in the hospital, then we can expect more tragedies in our facilities. We need to know what happens behind the locked doors of this province’s institutions.

Patients have been trying to tell us. It’s time for us to listen.

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