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Mental Health Laws
in Ontario
Mental health (psychiatric) laws set out psychiatrists' legal
powers regarding ordering medications and hospitalization
for people they deem mentally ill (and/or legally "incapable").
Medications are usually major tranquilizers or "antipsychotics".
"Hospitalization", or detention, is legally described
in the Mental Health Act, which was changed in 2000 under
"Brian's Law". named after a victim of violence.
Medications given involuntarily is legally described in the
Health Care Consent Act, which was last changed in 1996. These
laws are the paper rights that people enjoy under paternal
law related to psychiatric disability.
See our descriptions of Powers of Attorney (see also the
HCCA), and the Mental Health Act
of Ontario (below in various languages):
French / Spanish
/ Vietnamese / Chinese
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
See our links.
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