Tag: Mental Health Act
Last week, the Law Commission of Ontario (LCO) released its Final Report on Legal Capacity, Decision-making and Guardianship. The Final Report is the result of work conducted by a LCO Advisory Group since early 2013.
In the Final Report, the LCO outlines the strengths and attributes of Ontario’s capacity and guardianship regime, as well as areas of concern. Some key areas of concern the LCO identifies include:
- The system is confusing and lacks coordination;
- There is a lack of clarity and consistency in the law for capacity assessments;
- Legal tools are not responsive enough for the range of needs of those directly affected;
- Individuals, families, and service providers are not receiving enough support;
- The current oversight and monitoring mechanisms for substitute decision makers are insufficient;
- The dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA) are inaccessible to many.
The Final Report includes recommendations for reforms to law, policy and practice. These recommendations relate to (1) improving access to the law, (2) promoting understanding of the law by those directly affected, (3) strengthening protection of rights under the Health Care Consent Act, (4) reducing inappropriate intervention, (5) increasing accountability and transparency, and (6) enabling greater choice of substitute decision makers.
The Final Report makes 58 recommendations on the statutory regime for legal capacity, decision-making, and guardianship, including proposed reforms to the SDA, the Health Care Consent Act, 1996, and the Mental Health Act. Some of the Final Report’s key recommendations on the law of substitute decision-making include:
- Improved access to capacity assessments under the SDA;
- A standard-form “Statement of Commitment” required to be signed by persons accepting an appointment as an attorney;
- The delivery of “Notices of Attorney Acting” at the first time the attorney acts, delivered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as for any other persons identified in the Power of Attorney;
- The option to name a “monitor”, who would have statutory powers to visit and communicate with the grantor and powers to review accounts and records kept by the attorney;
- Development of time-limited or reviewable guardianship orders;
- Development of limited property guardianships, in parallel with existing limited personal care guardianships;
- Further research and consultation be conducted towards establishing a dedicated licensing and regulatory system for professional substitute decision-makers;
- Further research and consultation be conducted towards allowing community agencies to provide substitute decision-making for day-to-day decisions;
- Clarification of the duty of health practitioners to provide information to substitute decision-makers upon a finding of incapacity; and
- Empowering adjudicators under the SDA to order substitute decision-makers to obtain education on specific aspects of his or her duties.
The Final Report suggests short, medium, and long-term plans for implementing the LCO’s recommendations. You can find a copy of the full report at the LCO website.
Thank you for reading.
Other articles you might enjoy:
This past fall, the Minister of Health and Long-Term Care introduced Bill 122, The Mental Health Statute Amendment Act, to the Ontario legislature. It received Royal Assent on December 10, 2015 and officially came into force on December 21, 2015.
By way of background, the bill’s purpose was primarily to make changes to the Mental Health Act (“MHA”) in order to provide the Consent and Capacity Board with new powers with respect to the criteria under which a patient can be held involuntarily in a psychiatric facility as well as to address the length of time under which a patient can be involuntarily held.
The bill emerged as a response to the Ontario Court of Appeal’s 2014 decision in P.S v Ontario in which the court declared provisions in the MHA which allowed indefinite renewals of fourth certificates of involuntary admission, to be unconstitutional. The legislature was provided with one year to amend the MHA in light of the decision.
A brief summary of some of the most significant changes is as follows:
1- The new class of “certificate of continuation” is created.
Under a certificate of continuation, involuntary patients can only be detained for three additional months under a first and subsequent certificate of continuation.
The process for the first three certificates of renewal remains the same. This means that involuntary patients can still be detained for one additional month under a first certificate of renewal, two additional months under a second certificate of renewal, and three additional months under a third certificate of renewal. However, the process now ends after the third certificate of renewal. At this point, the detention can only continue under the new certificate of continuation.
2- The Consent and Capacity Board is granted new order-making powers that can be exercised at hearings with respect to the new class of certificates of continuation (for patients who have been detained for periods longer than six months).
3- The officer in charge of the psychiatric facility is now to be made a party to any hearing where a certificate of continuation is at issue.
There are, of course, further changes as a result of Bill 122 which can be read about in more detail here. These include the transition provisions which will undoubtedly be an important part of the implementation as this new legislation goes into effect.
Thank you for reading.
Yesterday’s blog spoke to the issue of an Application for Psychiatric Assessment (Form 1) under the Mental Health Act R.S.O. 1990. To review, upon completion of the psychiatric assessment, the patient must either be released or admitted as an involuntary patient, a voluntary patient, or an informal patient.
• Involuntary Patient: Before you become an involuntary patient, a doctor must assess you and place you on a Form 3 (Certificate of Involuntary Admission), which lasts for two weeks. The Mental Health Act speaks very specifically to the legal criteria that must be met in order for such a Certificate to be completed. An involuntary patient is not permitted to leave the hospital or psychiatric facility.
• Voluntary Patient: There is no portion of the Mental Health Act that authorizes a psychiatric facility to detain a voluntary patient. In this regard, a voluntary patient can leave the facility at any time, as long as they do not pose a risk to themselves or others. If they were to be identified as posing a risk to themselves or others, then they must be made an involuntary patient (by means of a Form 3) in order to be detained.
• Informal Patient: An informal patient is either a child under the age of 16 years, or someone who is incapable of making treatment decisions for themselves (as defined by the Health Care Consent Act) and who therefore has been admitted to the facility under the consent of another person (i.e. ‘substitute decision-maker’; usually a concerned family member). The informal patient cannot be held against their will in the hospital, however, an informal patient can be made ‘involuntary’ if a doctor deems that a Form 3 is necessary.
Jennifer Hartman, Guest Blogger
Last night, I overheard a distressed woman confiding to a friend about a relative who was declared incapable of managing her property. The Public Guardian and Trustee (“PGT”) had stepped into her shoes to take control and to care for her property. This case peaked my curiosity, so I went home and did some research on this topic.
Pursuant to Section 15 of the Substitute Decision Act (“SDA”), the PGT can be declared a person’s statutory guardian of property where a certificate is issued under the Mental Health Act (“MHA”) certifying that a person who is a patient of a psychiatric facility is incapable of managing property. Whenever a patient is admitted to a “psychiatric facility”, as defined by the MHA, a physician examines the patient to determine if he or she is capable of managing property. If the physician determines that the patient is not capable of managing property, then he or she must issue a certificate of incapacity. The certificate is subsequently sent to the PGT. As a result, Section 15 is triggered and the PGT steps in as the statutory guardian without any procedural requirement.
Pursuant to Section 16 of the SDA, the PGT can be declared a persons statutory guardian of property where a person requests an assessor to perform an assessment of either their capacity or another person’s capacity. This assessment is done with the view of determining whether the PGT should become the statutory guardian’s of the property. If a person wishes to request that an assessor perform an assessment of another person’s capacity, the person requesting the assessment must: (i) have reason to believe that the other person may be incapable of managing property, (ii) have made reasonable enquiries and have no knowledge of the existence of any attorney under a continuing power of attorney, and (iii) have made reasonable enquiries and have no knowledge of any spouse, partner or relative of the other person who intends to make an application for the appointment of a guardianship of property.
Thank you for reading and I hope my blogs added extra flavour to your favourite morning beverage.