Community Treatment Orders Being Reviewed by Dreezer & Dreezer, Inc. (to June 2005). How are professional consultants handling the job? Was there a conflict of interest?

Mental Health Laws in Ontario

• links to lawyers and advocates
• 1 page primer on the Ontario Mental Health Act and Health Care Consent Act
• 2 page review on Powers of Attorney
• 4 page review of the Mental Health Act
  • Admission
  • Expanded "Old" Criteria
  • New Criteria (2000): Treatment Issues [Sec. 16.(2)]
  • Examination and Assessment [Sec. 15.(1) and (1.1)]
  • Involuntary Admission [Sec. 20.(1) and (1.1)]
  • Community Treatment Orders (Sec. 33)
  • Absent From a Facility Without Leave
  • Ontario Review Board
  • Clinical Record
  • Form 14 and Form 28 - Clinical Record
  • Appointing a Representative
  • Mail

Four Page Review of the Mental Health Act

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.

Introduction

The Mental Health Act in Ontario is a law that governs how people are admitted to psychiatric facilities, how their mental health records are kept and accessed, their financial affairs are handled, and how people can be released into the community. The Health Care Consent Act deals with how people are treated or cared for in various facilities, and how decisions are made about their care. The Substitute Decisions Act deals with guardianship, "substitute decision makers", and Powers of Attorney-- issues related to making health care decisions for people deemed "incapable".

People often seek help for emotional distress from counselors and others, or may turn to doctors and psychiatrists, especially when they can't afford alternatives. When people feel like an emotional problem is too much to bear, they may seek help at a psychiatric ward or hospital.

Admission

Under the Mental Health Act, "psychiatric facilities" have the right to refuse admission to a person if their problem is "not urgent or necessary" (Section 11). But someone with a "mental disorder" ["any disease or disability of the mind"; Sec. 1. (1)] may be admitted as a voluntary patient if they are "believed to be in need of observation, care or treatment" (Sec. 12).

A voluntary patient is allowed to leave at any time and cannot be restrained (with straps or tranquilizers), or be put into isolation, unless they will cause "serious bodily harm" to self or to others (Sec. 14). They must be made an "involuntary" patient if this happens (see below).

The same rights apply to an "informal" patient, which is a child under 16 years of age, or someone who is "incapable" of making treatment decisions and is therefore admitted to a facility by another person. An informal patient under 16 is not allowed to leave. They can have the Consent and Capacity Board review their case at a hearing, at least once every 3 months [Sec. 13.(1)]. An informal patient can be made "involuntary".

NOTE: The term "incapable" is not the same as "involuntary". Incapable under the Health Care Consent Act means a person is not able to understand information or appreciate the consequences of their decisions. A person may be capable of making a decision regarding one treatment but not be allowed to leave a facility. A person may be capable of making financial decisions, but not health care decisions. (See our Power of Attorney information.)

Expanded "Old" Criteria

Sometimes people are brought to doctors or psychiatric facilities for examination. For example, anyone can bring sworn evidence before a justice of the peace to have someone else "examined" in a psychiatric facility [Sec. 16(1)]. A justice of the peace can do this by signing a Form 2 if they find the person:

• "apparently" has a mental disorder "of a nature or quality" that will likely result in: a) serious bodily harm to self, or b) to others; or c) serious physical impairment of the person, and the person:
• threatens or has threatened to cause bodily harm to self
• attempts or has attempted to cause bodily harm to self
• behaves or has behaved violently towards someone else
• causes or has caused someone to fear bodily harm,
• shows or has shown a lack of competence to care for self. (Before "Brian's Law" (2000), the person had to be at "imminent" risk of serious bodily harm due to incompetence, meaning 'within several weeks'.)

New Criteria (2000): Treatment Issues [Sec. 16.(2)]

If the criteria above don't apply, a justice of the peace can also order an examination based on evidence that the person:

• is "apparently incapable" to make treatment decisions (as defined by the Health Care Consent Act),
• has been treated for a disorder of an "ongoing and recurring" nature before which if not treated will likely result in a) "substantial mental or physical deterioration", b) serious physical impairment, c) violence or d) harm to self.
• "apparently" suffers from the same (or a similar) disorder as before,
• has shown "clinical improvement" when treated in the past.
  

Under Section 17 of the Act, a police officer can bring someone to a facility for an examination if the officer has "reasonable and probable grounds" to believe a person has acted in a "disorderly manner" (meaning irrational but not necessarily illegal) as long as the person "apparently" has a mental disorder and has threatened or attempted to harm themselves, or has behaved violently or caused someone to fear bodily harm, or has shown a lack of competence to care for themselves. Note that police cannot use the new criteria involving treatment issues. Police must stay with the person until the facility decides whether to admit them.

Under Section 21, a judge (not a justice of the peace) can order an examination for someone who appears in court and is charged with or convicted of an offense, but seems to have a mental disorder (Form 6). Or a judge can remand such a person for admission to a psychiatric facility for up to 2 months (Form 8).

Examination and Assessment [Sec. 15.(1) and (1.1)]

Any doctor can examine a person (i.e., hold an interview, sometimes use information brought by others), in or out of a facility, and order a "psychiatric assessment" (sign a Form 1) within 7 days of the examination. Once this happens, anyone can bring or force someone into a psychiatric facility up to seven days after the Form 1 is signed. Once inside, a patient can be 'detained, restrained, observed and examined' for up to 72 hours. However, the patient must promptly be given a Form 42 (which says why they are being detained, and that they have a right to a lawyer without delay [Sec. 38.(1)]).

When making a decision to hold someone under a Form 1, the doctor will use the same criteria as a justice of the peace does with a Form 2, but their clinical opinion will determine whether the person is actually "incapable" to make treatment decisions under the Health Care Consent Act (or make other kinds of decisions such as finances and access to clinical files as an in-patient).

Restraints can only be used in an emergency (to prevent serious bodily harm) but only in the least restrictive way. Use of restraints must be noted in the patient's clinical file. Psychosurgery is not allowed unless the patient is capable and gives consent themselves, but ECT (or "shock") can be chosen for you by a substitute decision maker (this was made law in 1996).

Involuntary Admission [Sec. 20.(1) and (1.1)]

Before the end of a 72 - hour assessment period under a Form 1 (signed by a doctor), a Form 6 (signed by a judge), or a Form 13 (for patients coming into Ontario from elsewhere), clinical staff (including a different doctor) must decide what to do with the patient. The patient can be released (and will be released once the 72 hours is up). The patient can be admitted as a voluntary or informal patient. Or they can be admitted as an involuntary patient under a Form 3, but only by a different doctor than the one who ordered a Form 1 [Sec's 20.(1) and 20.(2)]. This is seen as a way to protect patients' rights.

A second doctor must make a patient involuntary if the patient "is not suitable for admission or continuation as an informal or voluntary patient", and if either the expanded "old" criteria or the "new" criteria still apply to that patient (see above). A rights advisor must see the person to discuss the situation and help if the person wants to appeal the decision. All psychiatric facilities must have at least one trained rights advisor.

A Form 3 lasts two weeks, and after that, the patient goes back to voluntary or informal status. Before a Form 3 runs out, a doctor may decide to put the patient on a Form 4, or Certificate of Renewal, which means the patient stays involuntary for another 30 days. Again, they are informed of their right to legal counsel, seen by a rights advisor and given a chance to appeal at the Consent and Capacity Board (if a patient appeals a Board’s decision, their case goes before the courts).

A Form 4 can be renewed a second time (lasting 60 days) and the patient can appeal this. A third Form 4 lasts 90 days and can also be appealed. All Form 4's after this last 90 days each. And every fourth Form 4 is automatically brought before the Consent and Capacity Board whether the patient wants this or not. At any time, a doctor may release the patient or make them a voluntary or informal patient (Form 5).

While the patient is involuntary, a doctor can put a patient on a Leave of Absence (for short periods up to 3 months) if the patient is expected to return to the facility. Conditions may be set by the doctor, and the patient must follow them. The officer in charge of the hospital may give a patient a Leave even if there's no intention of the patient returning to the facility (and conditions may be set).

Community Treatment Orders (Sec. 33)

The Mental Health Act says that Community Treatment Orders (CTOs) are intended for people who get better on medications, leave hospital, relapse and return to hospital. Whether a person is in a hospital or living in the community, they can be asked to agree to a CTO (Form 45). Over the last 3 years, the person must have been a patient (voluntary or involuntary) in a psychiatric facility for 30 days or more, or on two occasions or more, to be put on a CTO. Otherwise, they must have been on a CTO before.

A "community treatment plan" is designed by a doctor and others (including mental health workers, community workers, family, substitute decision makers-- anyone who's willing to take part). The doctor must consult with everyone involved in the plan. 72 hours before the CTO is signed, the doctor must examine the person and believe:

• the person has a mental disorder that needs continuing treatment, care or supervision while they live in the community,
• the person fits the criteria for being put on a Form 1 if they're living in the community,
• the person may, because of mental disorder, cause serious bodily harm to self or others, or suffer substantial mental or physical deterioration, or suffer serious physical impairment, if they continue to live in the community without treatment.
• the person can follow the treatment plan
• the supports needed are available in the community

The doctor must also believe the person and/or their substitute decision maker have been given rights advice. If the patient OR their substitute decision maker (who may be chosen by the person in a "Power of Attorney", or appointed by a doctor under the rules in the Health Care Consent Act) agrees to the plan, then the CTO is signed and the patient is forced to attend appointments and take treatments written into the plan. The patient and/or their substitute decision maker can then review the CTO at the Consent and Capacity Board. The CTO expires after 6 months and can be renewed indefinitely in 6 month periods (Form 46). A CTO can even be renewed within 30 days after it expires.

All parties named in the plan are responsible for making sure the patient stays with the plan, and the doctor is responsible for the general supervision of the CTO. All parties can exchange the patient's health records and personal information "when it relates to the person's mental or physical condition for the purpose of treating, caring for and supervising the person in accordance with the plan" [Sec. 35.1(2)]. A doctor can share information with anyone when deciding whether to put someone on a CTO. No one can reveal to others that the person is on a CTO, or is being considered for a CTO, without the patient's consent or that of their substitute decision maker (often called an "SDM").

The person on a CTO or the substitute decision maker ("SDM") can ask the doctor to examine the patient at any time and the doctor may decide to release the person from the plan. The person or their "SDM" can also tell the doctor they withdraw their consent-- if that happens, the doctor has 72 hours to examine the patient to see if the CTO is still necessary, and if the patient doesn't show up, the doctor can order an examination. Police then have 30 days to bring the patient to the doctor who issued the CTO.

If the doctor believes the patient has failed to follow the plan, the doctor must try to locate the person, inform them or their "SDM" that they have failed to comply, inform them that the doctor may order an examination, and provide assistance to the patient in following their plan. If none of this works, the doctor may order an examination and police have 30 days to bring the patient to the doctor who issued the plan.

When a patient is returned and examined, the doctor will decide whether the patient should be put on a Form 1, or put on another CTO (if the patient or SDM agree), or just be released.

Absent From a Facility Without Leave:

Detained patients who are absent without leave can be returned to the facility (or the nearest facility) within 1 month of the absence being known to the officer in charge. This can be done by police or someone approved by the officer in charge of the facility. After 1 month, the person is considered released. No one can aid, assist, abet, or counsel patients to become absent without leave. (Sec 28.5)

Police must remain at the facility when bringing someone in until the facility has accepted custody of the person. Under Section 33 (CTO), the facility must decide as soon as reasonably possible.

Ontario Review Board:

Unfit to stand trial or not criminally responsible? People can be put into a facility and the Ontario Review Board will decide if/when they can leave. Upon release, they can be placed on parole, probation, or a peace bond. The Criminal Code governs their care and treatment.

Clinical Record:

A patient's clinical record consists of all records compiled at the facility. Applicable MHA rules apply to in-, out- and ex-patients, and don't apply to any records held outside psychiatric facilities as determined by the Minister (ex. therapy, general health).

Confidentiality of records is the general rule. No consent is required by the patient for a doctor, officer in charge, or lawyer representing the patient at a Consent and Capacity Board to see a record. Permission to see the record can be given to: staff at the facility only for the purpose of assessment or treatment; the officer of another facility if they write a request; people named in a CTO if they write a request; anyone involved in direct care during an emergency if it should lead to severe suffering or serious bodily harm; a lawyer for the facility or an employee therof; a capacity assessor; anyone doing research, academic work, statistics as long as the patient's name and other means of identification are removed.

The officer or a designate must disclose records when they are asked to do so in a court matter, unless the attending physician objects because disclosure will likely result in serious harm to the treatment or recovery of the patient while in the hospital, or serious physical or emotional harm to another person. A closed hearing must determine if the records are essential to the interests of justice.

Form 14 and Form 28 - Clinical Record:

A "competent" patient (this term applies to clinical records) can give consent for their clinical record to be seen by someone else (Form 14). If they are not competent, their SDM can give consent for them (Form 14). A competent patient (or their SDM if they are incompetent) may look at or copy the patient's clinical record (Form 28). A "copying charge" (often $100's) may apply. When a doctor or an officer in charge objects to the patient seeing their files, they can apply (within 7 days) to the Consent and Capacity Board, which can withhold the file or part of the file. This can only happen if disclosure will likely result in serious harm to the treatment or recovery of the patient while in the hospital, or serious physical or emotional harm to another person.

The Public Guardian and Trustee can view the clinical record if they are investigating whether the person is incapable to handle financial decisions. A coroner investigating a death can view the record where appropriate.

A patient may request a correction when there is an error or omission in the file. If this doesn't occur, the patient can request a "statement of disagreement" (reflecting the suggested changes) be attached to the file.

Appointing a Representative:

A competent patient over the age of 16 can appoint (or revoke the appointment of) a "representative" (in writing and with a witness) to see and to give others access to the clinical file. A doctor must notify the patient of this right within 48 hours of admission (any kind) and give them a Form 36. If no appointment is made by the patient, their SDM will make decisions on access to the clinical file. If a doctor finds the patient incompetent, they must give the patient a Form 33 (right to appeal), Form 40 (right to apply for right to appointment), and must notify a rights advisor. Any records (except those withheld by the Board) can be examined, copied and presented to the Consent and Capacity Board in a hearing. The patient's lawyer can also see all health records (for a fee).

Mail:

A patient's mail may be opened, examined or withheld if an officer or their designate believes: the patient's out-going letter would "prejudice the best interests" of the patient, or offend a recipient; the patient's in-coming letter would interfere with treatment or cause unnecessary distress. Only letters sent from the patient to a lawyer, the Ombudsman, a Consent and Capacity Board member, or an MP / MPP cannot be examined or withheld. Letters from any of these (except the Ombudsman) cannot be examined or withheld.

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