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Mental Health Laws
in Ontario
The following is our one-page primer on mental health laws
in Ontario, which is available in four other languages.
French / Spanish
/ Vietnamese / Chinese
See also:
Mental Health Laws
in Ontario
Note: the following is intended to provide general legal
information only. If you need specific legal advice you should
speak with a lawyer or advocate.
A hospital does not have to admit you if they believe there’s
nothing wrong with you. However, if any doctor examines you
and believes you may be a danger to yourself or others, you
can be put you on a Form 1, also called
a "Psychiatric Assessment". You then have to
stay in a psychiatric ward or hospital for 72 hours. You cannot
appeal, but you must be given a Form 42, which says you have
a right to talk to a lawyer free of
charge. You or someone else can also try to negotiate
your release.
A psychiatric assessment is done by a different doctor.
Within 72 hours, that doctor must decide either to: release
you from hospital, ask you to stay as a voluntary patient,
or make you stay as an involuntary patient. If you cause (or
try to cause) harm to yourself or to others, you can be restrained
and/or isolated. You will then be put on a Form 3.
A Form 3, or "Involuntary Admission,"
lasts two weeks, although your doctor may decide to let you
go at any time. A Rights Advisor
must come as soon as possible and offer you help with understanding
your rights and finding a lawyer if you want one. You can
challenge a Form 3 by completing a Form 16. If you do so,
the Consent and Capacity Board
must have a "hearing" within 7 days. After 2 weeks
on a Form 3, the doctor can put you on a Form 4, or a "Certificate
of Renewal", which lasts one month. After this, another
Form 4 can last two months, and every Form 4 after that lasts
three months. Each time you get a Form 3 or 4, a Rights Advisor
must come to offer you help. Again, you have a right to talk
to a lawyer, and you can challenge each form at the Consent
and Capacity Board. You can also appeal a Board’s decision
in court. [See mental health forms
online].
When Bill 68 (or "Brian’s Law") was passed
in 2000, changes were made to make it easier to put people
in hospitals. As before, the rules (or "criteria")
state that if you have caused, or tried to cause, harm to
yourself or others, or if you might suffer physical impairment
as a result of mental illness, you may be put on a Form 1,
3 or 4 by any doctor. As before, a justice of the peace, a
judge or police officer can ask a doctor to put you on a Form
1 if they think you have a psychiatric illness and are at
risk. The new rules say a doctor can also put you on a Form
1 if they believe you’re "incapable" of making
treatment decisions, have the same disorder as you had before
(which might cause mental deterioration or worse), and that
you’ve improved on treatment before. Also, a police officer
no longer has to see "disorderly conduct" to detain
you.
Before you accept or refuse treatments, a doctor must tell
you what the treatment is, what it’s for, what the side
effects are, what alternatives there are, and what might happen
if you accept or refuse the treatment. You can then give "informed
consent". Only you can decide on treatment, unless a
doctor believes you are unable to understand the treatment
or the consequences of your decision. A doctor may find you
legally "incapable to consent" to treatment. A Rights
Advisor must then see you and you have the right to challenge
the doctor’s decision at a Board hearing. If you are
incapable, and if you haven’t signed a "Power
of Attorney for Personal Care", a doctor must ask
someone else to decide on your treatment. The doctor will
ask people in this order: your guardian (if you have one),
your spouse or partner, your child (16 or older), your parent(s),
your siblings, other family members, and the Public
Guardian and Trustee. The first willing and able person
will become your "substitute decision maker". To
prevent this, you must complete a "Power of Attorney
for Personal Care" beforehand. It tells people what treatments
you do or don’t want, and who will make decisions for
you if you ever become "incapable". A "Continuing
Power of Attorney for Property" deals with financial
decisions. You must be "capable" to write and sign
a Power of Attorney and two witnesses must sign with you.
Ask a lawyer for help.
Under the new laws, a doctor can also ask you (or your substitute
decision maker if you’re incapable) to be on a Community
Treatment Order, or "CTO". If you agree, you’ll
have to stay on a treatment plan in order to stay out of hospital.
A list of people in the plan will make sure you stick with
the treatment and go to your appointments. You can only be
put on a CTO if in the last 3 years you have been a psychiatric
patient twice or more, or for a total of 30 days or more.
A CTO lasts six months and can be renewed. You have the right
to refuse a CTO, to see a Rights Advisor, and to withdraw
your consent after signing one. If you are incapable, however,
someone else can consent or refuse a CTO for you. If you are
living outside of hospital, you can be put on a CTO if you
meet the criteria for being put on a Form 1.
Power of Attorney
See Chart of Different Powers of Attorney...
You have a legal right to decide what happens to your body.
This right includes accepting or refusing medical treatments
(if a person violates this right, they can be charged with
assault). However, you can only make such decisions while
you are legally "capable" (or "competent"
in the old law). Normally, you are assumed to be capable,
but if you are ever found "incapable" to make a
decision, someone else can apply or be asked to make decisions
for you.
You can appeal
a finding of "incapacity".
If you become unable to decide for yourself, or if you are
found "incapable" to make a decision, you can let
others know what you want beforehand. For example, you can
verbally give people instructions, which are legally called
"previous wishes". By writing a "statement
of previous wishes", there's a better chance your instructions
will be followed. However, the best legal proof of your previous
wishes is a Power of Attorney.
See Chart of Different Powers of Attorney...
A Power of Attorney is a legal document in which you give
someone (such as a relative or friend) the power to make
your treatment or finance decisions for you if you're found
"incapable".
You can choose someone to be your "attorney" (different
than your lawyer) and they will explain your "previous
wishes" to your doctor and others. Whoever you name has
to agree to be your attorney. You cannot choose someone who's
paid to give you health care, or someone who's "incapable",
or someone under the age of 16. You can name more than one
attorney to make decisions together ("jointly"),
unless you want them decide together OR separately ("jointly
and severally"). If an attorney dies or becomes incapable,
you can name one or more "substitute attorneys"
as well.
If you do not choose an "attorney", others can
be asked to make decisions for you (see: "Substitute
Decision Makers"), or someone can apply to become your
"representative". Someone can also apply to the
court to become your "Guardian of the Person"
or "Guardian of Property".
If your doctor or someone else finds you incapable to make
decisions about your treatment, money or other issues, your
Power of Attorney will tell people what you want done or don't
want done. Your chosen attorney must follow these instructions
and represent your wishes as best as possible. If you don't
give instructions for some unexpected situation, your attorney
has to decide for you based on what they think is in your
"best interest" and on what they know about you.
Someone, even your attorney, can go against your wishes or
interpret them differently if they are not specific enough.
It's best to think of any possible problems and talk to a
lawyer.
An Example: You don't want to be treated with most anti-depressants
because they make you ill. Your substitute decision maker
is told a new anti-depressant is available and it has fewer
side effects. Because you didn't know about this drug, and
did not list it when you signed your Power of Attorney,
your substitute decision maker may decide you should be
given the new drug.
To sign a Power of Attorney, you must be legally "capable",
and two independent witnesses must sign with you. The best
proof of your "capacity" is a statement from someone
who can assess
capacity (such as your doctor). People who cannot witness
your Power of Attorney include: your attorney, their spouse
or partner, your spouse or partner, your child, or people
under 18 years of age. You can change or cancel your Power
of Attorney only while you are capable (two witnesses must
also sign). Filling out a Power of Attorney is an important
legal task, so ask a lawyer or a community legal worker for
help. They can assist you in making your wishes as clear as
possible.
See Chart of Different Powers of Attorney...
Advanced
Directives in the USA
The rules regarding Powers of Attorney can be found in
the Ontario Health Care Consent Act
(HCCA) and Substitute Decisions Act (SDA). The chart below
gives general information on the different kinds of Power
of Attorney.
4 page review of the Mental Health
Act
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