(i)

RIGHTS ANDRESPONSIBILITIES:Mental Health and the Law

The purpose of this publication is to help youunderstand the Mental Health Act and parts ofthe Substitute Decisions Act and the Health CareConsent Act.

This material does not give an officialinterpretation of the law and is not a replacementfor professional advice or a substitute for readingthe legislation.

Legislation changes from time to time. Thismaterial was published in January 2001 and doesnot reflect changes that may have been made tothe law after that date. This document doesinclude the changes made to the Mental HealthAct and the Health Care Consent Act as a resultof Brian's Law (Mental Health LegislativeReform), 2000, which was proclaimed Dec. 1,2000.

Further information and materials are availablethrough the Ministry of Health and Long-TermCare website at www.gov.on.ca/health/.

Information is also available on the Consent andCapacity Board website at www.ccboard.on.ca.

Copies of the forms referred to in this documentare available through the website at:http://www.gov.on.ca/health/

(ii)

Table of Contents

INTRODUCTION ........................................................... 1

About the Legislation .......................................... 1The Mental Health Act.......................................... 1The Health Care Consent Act.............................. 1The Substitute Decisions Act ............................. 1

PART I: IN THE COMMUNITY .................................. 2

Formal Options..................................................... 2POWER OF ATTORNEY................................................. 2ULYSSES CONTRACTS.................................................. 2STATUTORY GUARDIANSHIP........................................ 3GUARDIANSHIP INVESTIGATIONS ................................ 3COURT-APPOINTED GUARDIANSHIP ............................. 3LEAVE OF ABSENCE FROM A PSYCHIATRIC FACILITY ... 3RELEASE FROM A PSYCHIATRIC FACILITY ON A

COMMUNITY TREATMENT ORDER............................... 4CONDITIONAL RELEASES UNDER THE CRIMINAL CODE6

PART II: FROM THE COMMUNITY TO THEHOSPITAL ...................................................................... 6

Voluntary Admission ........................................... 6Informal Admission.............................................. 6

INFORMAL ADMISSION TO A PSYCHIATRIC FACILITY

FOR TREATMENT OF A MENTAL DISORDER................... 7OTHER INFORMAL ADMISSIONS ................................... 7GENERAL INFORMATION ON INFORMAL ADMISSION .... 7

Individuals Charged with a Criminal Offence.... 7UNDER THE MENTAL HEALTH ACT............................. 7UNDER THE CRIMINAL CODE ...................................... 7

Unauthorized Absence of a Patient.................... 8Young Persons..................................................... 8By Order of a Justice of the Peace..................... 8By a Police Officer Acting on His or Her OwnAuthority Under the Mental Health Act ............ 10By Order of a Physician..................................... 10Individuals Coming from Outside of Ontario .. 12

PART III: AT THE HOSPITAL.................................. 13

Police Officer's Duty at the Facility .................. 13The Assessment................................................. 13

RELEASE OF PERSON BY OFFICER IN CHARGE ............ 13Involuntary Patients........................................... 13

CERTIFICATE OF INVOLUNTARY ADMISSION (FORM 3).................................................................................. 14CERTIFICATE OF RENEWAL (FORM 4)........................ 14CHANGE FROM INVOLUNTARY TO VOLUNTARY STATUS

.................................................................................. 16Confidentiality of Psychiatric Records in aPsychiatric Facility............................................. 16

SPECIAL RULES FOR RECORDS IN A PSYCHIATRIC

FACILITY....................................................................16WHERE THE RULES DO NOT APPLY.............................16THE GENERAL RULE IS NON-DISCLOSURE...................16WHEN DISCLOSURE OF THE RECORD IS PERMITTED....16COMMUNITY TREATMENT ORDERS ...........................17PATIENT’S OWN ACCESS TO RECORDS........................18WHERE THE PATIENT BELIEVES THE RECORD IS WRONG

..................................................................................18ACCESS TO RECORDS AND THE ISSUE OF COMPETENCE

..................................................................................18DISCLOSURE IN MATTERS BEFORE THE CONSENT AND

CAPACITY BOARD .....................................................19DISCLOSURE IN COURT OR TO A LEGAL BODY ............19PROVIDING INFORMATION TO THE PUBLIC GUARDIAN

AND TRUSTEE ............................................................19DISCLOSURE TO A CORONER......................................19

Rights Advice for Patients in PsychiatricFacilities.............................................................. 20

WHEN RIGHTS ADVICE IS REQUIRED ..........................20RIGHTS ADVICE WITH REGARD TO CAPACITY TO

CONSENT TO TREATMENT FOR A PSYCHIATRIC

DISORDER ..................................................................20RIGHTS ADVICE WITH RESPECT TO COMMUNITY

TREATMENT ORDERS..................................................20Restraint.............................................................. 20Communication to and from Patients .............. 21Transfer of Patients ........................................... 21Psychosurgery ................................................... 21

PART IV: TREATMENT .............................................22

When the Health Care Consent Act Does NotApply ................................................................... 22Consent............................................................... 22

THE MEANING OF CONSENT........................................22Emergency Treatment ....................................... 23Capable of Consenting to Treatment ............... 23Incapable of Consenting to Treatment ............ 23

OBLIGATIONS REGARDING FINDINGS OF INCAPACITY24REVIEW OF A FINDING OF INCAPACITY.......................24SITUATIONS WHERE TREATMENT MAY NOT BE STARTED

..................................................................................24Substitute Decision-Making for Treatment ..... 25

LIST OF POTENTIAL SUBSTITUTE DECISION-MAKERS..25RULES FOR MAKING TREATMENT DECISIONS .............25PRIOR CAPABLE WISHES.............................................26BEST INTERESTS ........................................................26FAILURE TO FOLLOW THE DECISION-MAKING RULES..26ADMISSION FOR THE PURPOSE OF TREATMENT ..........26

(iii)

Table of Contents (cont'd)

PART V: SPECIALLY APPOINTED SUBSTITUTEDECISION-MAKERS................................................... 27

Powers of Attorney ............................................ 27A FEW WORDS ABOUT LANGUAGE............................. 27POWER OF ATTORNEY FOR PERSONAL CARE .............. 27ULYSSES CONTRACTS ............................................... 28CONTINUING POWER OF ATTORNEY FOR PROPERTY... 28GENERAL POWER OF ATTORNEY FOR PROPERTY........ 29

Representatives Appointed by the Consent andCapacity Board ................................................... 29Statutory Guardianship for Property................ 29

METHOD ONE: AVAILABLE IN ANY SETTING .............. 30METHOD TWO: FOR INPATIENTS IN A PSYCHIATRIC

FACILITY ................................................................... 30RIGHTS AND POWERS OF THE STATUTORY GUARDIAN 31REPLACING THE PUBLIC GUARDIAN AND TRUSTEE AS

STATUTORY GUARDIAN ............................................. 31Court-Appointed Guardianship ........................ 31

PART VI: THE CONSENT AND CAPACITY BOARD......................................................................................... 32

Jurisdiction ......................................................... 32Procedure at the Board ..................................... 33Appeal Rights ..................................................... 33

PART VII: OFFENCES................................................ 34

PART VIII: DEFINITIONS ......................................... 35

Under the Mental Health Act ............................. 35Under the Health Care Consent Act ................. 35Under the Substitute Decisions Act ................. 36

PART IX: INDEX OF FORMS.................................... 37

Forms Under the Mental Health Act ................. 37Forms Under the Health Care Consent Act ..... 43Forms Under the Substitute Decisions Act..... 45

(1)

Introduction

ABOUT THE LEGISLATION

Mental health, consent, and substitute decision-making laws provide the legal framework for thecare, treatment and hospitalization of those whoare suffering from mental health problems, orwho are incapable of making their own lifedecisions. These laws are meant to balance theright to autonomy and self-determination withthe right to care, protection and treatment, aswell as the safety of the community.

THE MENTAL HEALTH ACT

The Mental Health Act and its regulations dealwith issues such as:which hospitals in Ontario are considered to be

“psychiatric facilities;”how and when a person may be brought to a

psychiatric facility;how a person may be admitted to a psychiatric

facility;how a person may be kept in hospital;who may see a patient’s records from a

psychiatric facility;financial incapacity of inpatients under the Act in

a psychiatric facility;the rights of patients to information and legal

review concerning a number of matters,including involuntary hospitalization,community treatment orders, access to anddisclosure of records, and management oftheir property;

how and when community treatment orders maybe issued, renewed or terminated.

THE HEALTH CARE CONSENT ACT

The Health Care Consent Act and its regulationsdeal with issues such as:the rule that there must generally be informed,

capable consent before treatment oradmission to a care facility;

how health practitioners are to deal withemergency situations where legally validconsent is not available;

how to determine if a person is capable ofmaking decisions about medical treatment,admission to a nursing home or home for theaged, and personal assistance services in anyof those facilities;

how to identify the appropriate substitutedecision-maker for an incapable person;

how a substitute decision-maker should makedecisions for someone not capable of makingdecisions about treatment, admission to acare facility or personal assistance services;

options available if a substitute decision-makermakes decisions in an improper fashion.

THE SUBSTITUTE DECISIONS ACT

The Substitute Decisions Act and its regulationsdeal with issues such as:powers of attorney, guardianships and other

matters relating to long-term arrangementsfor substitute decision-making;

how continuing powers of attorney for propertyor personal care may be given;

how statutory guardianships for property may becreated when an assessor determines that aperson is not capable of managing property;

how a court may appoint a guardian for propertyor personal care;

powers of, and rules of, decision-making forguardians and attorneys.

(2)

PART I: IN THECOMMUNITYSome of the terms used in this document aredefined in the definition section, which canbe found at page 35.

Our communities are home to many people withmental and physical challenges, including thosewith mental health problems. Many of theseindividuals have difficulty managing their ownaffairs and making their own decisions. Thereare many different ways to deal with theseissues.

Some of these involve the use of the law in orderto ensure safety or treatment or to make lifedecisions for an individual. Others involve stepsthat can be taken to assist people suffering fromsome level of impairment without the necessityfor formal legal intervention.

Sometimes, a combination of practical andformal legal arrangements is required. Each caseis different. There are no “one size fits all”solutions.

Good starting points for information and referralinclude the local public health departments, localCommunity Care Access Centres, local branchesof the Canadian Mental Health Association andthe Association for Community Living.

Consumer and family groups often providevaluable support and information.

FORMAL OPTIONS

The Substitute Decisions Act includes a numberof tools that may assist with decision-makingand care for individuals who are, or maybecome, incapable of handling these matters bythemselves.

POWER OF ATTORNEY

A power of attorney is a very important type oflegal document that one person can use to grantanother person or persons authority to makeimportant decisions on his or her behalf.

There are three different types of powers ofattorney in Ontario.

1. Power of Attorney for Personal CareThis type of power of attorney may giveauthority to make decisions about any, or all, ofthe following: health care, nutrition, shelter,clothing, hygiene and safety on behalf of theperson signing the power of attorney.

2. Continuing Power of Attorney forPropertyThis type of power of attorney gives authority todeal with the property and money of the personsigning the power of attorney. This type ofpower of attorney remains valid even if theperson who signed it becomes incapable.

3. General Power of Attorney for PropertyThis type of power of attorney remains validonly when the person who signed it is capable ofmanaging his or her own property. It istraditionally used by persons who need someoneto manage their financial affairs because of aplanned trip. It is not useful for people wishingto plan for their incapacity.

(For further information on powers ofattorney, please see page 27.)

ULYSSES CONTRACTS

Some people worry that they will resistnecessary care if they become incapable. In orderto deal with this problem, the SubstituteDecisions Act creates a particularly powerfultype of power of attorney for personal care. Thisis often referred to as a “Ulysses Contract.”

A Ulysses Contract may contain a number ofspecial provisions including clauses allowing forthe use of necessary and reasonable force tofacilitate the person’s hospitalization andtreatment.

(3)

Because a Ulysses Contract is so powerful, thereare strict rules that must be followed when it ismade. Failure to follow these rules will make theUlysses Contract invalid. For this reason,professional advice is strongly recommended foranyone wishing to create a Ulysses Contract.

STATUTORY GUARDIANSHIP

The following is a very brief outline of statutoryguardianship. Arrangements can be made for aprofessional called an “assessor” to visit a personto decide if he or she is capable of managingproperty. This procedure is not available if therequestor is aware of a continuing power ofattorney for property that gives authority overall of the person’s property.

If the assessor determines that the person isincapable, the Public Guardian and Trustee willbecome the statutory guardian for property withresponsibility for managing the person’sproperty. It is possible for a family member orcertain other persons to apply to the PublicGuardian and Trustee to take over from thatoffice.

An attending physician in a psychiatric facilitymust assess whether an inpatient in his or hercare is capable of managing property. TheMental Health Act defines “psychiatric facility”as “a facility for the observation, care andtreatment of persons suffering from mentaldisorder, and designated as such by theMinister”. The Act defines “mental disorder” as“any disease or disability of the mind.”

If the physician determines that the person isincapable, the Public Guardian and Trustee willbecome the statutory guardian for property withresponsibility for managing the person’sproperty. It is possible for a family member orcertain other persons to apply to the PublicGuardian and Trustee to take over from thatoffice.

(For further information on statutoryguardianship, please see page 29.)

GUARDIANSHIP INVESTIGATIONS

The Public Guardian and Trustee is anindependent government official. One of the jobsof the Public Guardian and Trustee is toinvestigate cases where it is thought thatsomeone is incapable of making decisions aboutproperty, or personal care and serious harm isoccurring or may occur to them as a result.

If the investigation indicates that a serioussituation exists, the Public Guardian and Trusteemust apply to the Court for a temporaryguardianship order.

You may contact the GuardianshipInvestigations Unit of the Public Guardian andTrustee by calling at 1-800-366-0335.

COURT-APPOINTED GUARDIANSHIP

Anyone may apply to the Superior Court ofJustice to be named as a person’s court-appointed guardian. There are two types ofcourt-appointed guardianships: guardianship forproperty and guardianship for personal care.

Depending on the exact wording of the order, acourt-appointed guardian for property mayhandle all aspects of a person’s property, exceptmake a will.

Depending on the wording of the judge’s order, acourt-appointed guardian for personal care mayhave authority in the areas of health care,nutrition, shelter, clothing, hygiene and safety.

(For further information on guardianship,please see page 31.)

LEAVE OF ABSENCE FROM A PSYCHIATRIC

FACILITY

A leave of absence may be granted to a patientwho is in a psychiatric facility under theauthority of the Mental Health Act.

The attending physician may place a patient on aleave of absence from the psychiatric facility, ifthe intention is that the patient shall return to thefacility. The officer in charge of the psychiatric

(4)

facility may also place a patient on a leave ofabsence, upon the advice of the attendingphysician even if there is no intention that thepatient shall return to the facility. The officer incharge may place certain terms or conditions onthis leave. Both the attending physician and thepatient must comply with these terms orconditions.

A violation of the terms or conditions of theleave of absence may result in the patient beingreturned to the facility.

A leave may be granted for a maximum of threemonths.

RELEASE FROM A PSYCHIATRIC FACILITY ON A

COMMUNITY TREATMENT ORDER

Legislative changes to the Mental Health Act(Brian's Law, Mental Health Legislative Reform2000) have introduced community treatmentorders (CTOs) as an option for those who requirepsychiatric treatment for serious, recurringmental illness.

CTOs are a comprehensive plan of communitybased treatment or care and supervision that isless restrictive than being detained in apsychiatric facility.

A physician may issue or renew a CTO for aperson if the legislative test outlined below ismet.

First, during the previous three-year period (priorto the issuing or renewing of the CTO), theperson must have been a patient in a psychiatricfacility on two or more separate occasions, ORfor a cumulative period of 30 days or more. If theperson was the subject of a previous communitytreatment order, this portion of the test will alsobe satisfied.

In addition to the requirement of prior hospitalstays, or the existence of a previous communitytreatment order, the following criteria must bemet:

1) the person, or his or her substitute decision-maker, the physician who is consideringissuing or renewing the order, and any otherperson involved in the person's treatment orcare and supervision have developed acommunity treatment plan for the person;

AND

2) within the 72 hour period before enteringinto the community treatment plan, thephysician examined the person and is of theopinion that:a) the person is suffering from mental

disorder such that he or she needscontinuing treatment or care andcontinuing supervision while living in thecommunity;

b) the person meets the criteria for thecompletion of an application forpsychiatric assessment, where the personis not currently a patient in a psychiatricfacility;

c) if the person does not receive continuingtreatment or care and continuingsupervision while living in thecommunity, he or she is likely, becauseof mental disorder, to:i) cause serious bodily harm to self; orii) cause serious bodily harm to another;

oriii) suffer substantial mental or physical

deterioration of the person; oriv) suffer serious physical impairment of

the person.d) the person is able to comply with the

community treatment plan contained inthe community treatment order;

e) the treatment or care and supervisionrequired under the terms of thecommunity treatment order are availablein the community;

AND

3) the physician has consulted with the healthpractitioners or other persons proposed to benamed in the community treatment plan;

AND

4) the physician is satisfied that the personsubject to the order and his or her substitute

(5)

decision-maker, if any, have consulted with arights adviser and been advised of their legalrights; (unless the person refuses to consultwith the rights adviser)

AND

5) the person or his or her substitute decision-maker consents to the community treatmentplan in accordance with the rules for consentunder the Health Care Consent Act, 1996.

The purpose of a CTO is to provide a personwho suffers from a serious mental disorder witha comprehensive plan of community basedtreatment. People who may be eligible includepeople who experience a certain pattern duringtheir illness. Specifically, CTOs are designed forthe person who:is admitted to a psychiatric facility where his or

her condition is stabilized;is then released from the facility;stops the treatment or care and supervision;has a change in condition;needs to be re-admitted to a psychiatric facility.

CTOs can be issued for involuntary psychiatricpatients who agree to a treatment/supervisionplan as a condition of their release from apsychiatric facility to the community.

CTOs can also be issued or renewed forindividuals who are not patients in a psychiatricfacility, if the criteria outlined above are met.

A person who is being considered for a CTO, orwho is subject to a CTO, and that person'ssubstitute decision-maker, both have a right toretain and instruct counsel (and to be informed ofthat right) and a right to consult a rights adviser.As well, each time a CTO is issued or renewed,the person subject to the order, or any person onhis or her behalf, may apply to the Consent andCapacity Board to inquire into whether thecriteria for issuing or renewing a CTO have beenmet.

There is an automatic review by the board afterthe second renewal of a CTO and every secondrenewal thereafter, even if the person does notask the board for a hearing.

A CTO will expire six months after the day it ismade unless it is renewed or terminated. Anorder may be terminated earlier by the physicianwho issued or renewed the order in situationswhere the person subject to the order fails tocomply with his or her obligations under theorder. If a person fails to comply with his or herobligations, a physician may be able to issue anorder for examination of the person and have theperson returned to the psychiatric facility.

A physician who issued or renewed a CTO mayissue an order for examination of a personsubject to a CTO if the following conditions aremet:

1) The physician has reasonable cause tobelieve that the person subject to the orderhas failed to comply with his or herobligations under the order;

2) The physician has reasonable cause tobelieve that the person subject to the order:a) is suffering from mental disorder such

that he or she needs continuing treatmentor care and continuing supervision whileliving in the community;

b) meets the criteria for an application forpsychiatric assessment under the MentalHealth Act;

c) is likely because of mental disorder, tocause serious bodily harm to himself orherself or to another person or will suffersubstantial mental or physicaldeterioration of the person or seriousphysical impairment of the person, if heor she does not receive continuingtreatment or care and continuingsupervision while living in thecommunity;

AND

3) Reasonable efforts have been made to:a) locate the person;b) inform the person or the person's

substitute decision-maker of the failure tocomply;

(6)

c) inform the person or the person'ssubstitute decision-maker of thepossibility that the physician may issuean order for examination and the possibleconsequences; and

d) provide the person with assistance tocomply with the terms of the order.

If an order for examination is issued by aphysician, a police officer has authority for thirtydays after the order is issued, to take the personnamed in the order into custody and thenpromptly to a physician.

A CTO may also be terminated prior to its expirydate if consent to the order is withdrawn by theperson, or the person's substitute decision-maker.As well, an order may be terminated uponrequest of a person or person's substitutedecision-maker for a review of the person'scondition.

CONDITIONAL RELEASES UNDER THE CRIMINAL

CODE

Some individuals are in a psychiatric facilitybecause a court has found them unfit to standtrial or not criminally responsible. The OntarioReview Board is responsible for deciding if andwhen these individuals will be allowed to leavethe facility. In some cases, the Board may putcertain restrictions or conditions on the release.

Other individuals who have been charged orconvicted of a crime may have receivedsuspended sentences, parole or probation and arein the community on a form of conditionalrelease such as probation or parole. Others areplaced on what is commonly known as a peacebond.

Violation of the terms of a conditional releasecan result in the person’s return to custody.

PART II: FROM THECOMMUNITY TO THEHOSPITALSome of the terms used in this document aredefined in the definition section, which canbe found at page 35.

There are many different ways that a person maycome, or be brought, from the community to ahospital or other facility because of a mentaldisorder.

VOLUNTARY ADMISSION

A voluntary patient is a person who is stayingin a psychiatric facility of his or her own freewill.

A person may be admitted to a psychiatricfacility voluntarily on the recommendation of aphysician at the facility. That physician mustbelieve that the person is in need of the treatmentoffered at the facility. (A psychiatric facility is ahospital that provides psychiatric services and isdesignated as such by the Minister and listed onone of the approved schedules to the MentalHealth Act.)

INFORMAL ADMISSION

The meaning of “informal patient” haschanged over the years. It now refers only to aperson who has been found incapable withrespect to a proposed treatment, and has beenadmitted to a hospital or psychiatric facilitywith the consent of the person authorized tomake his or her treatment decisions.

The section in this guide on consent to treatmentexplains how a determination of incapacity ismade and how the appropriate substitutedecision-maker is identified.

(7)

INFORMAL ADMISSION TO A PSYCHIATRIC

FACILITY FOR TREATMENT OF A MENTAL

DISORDER

A person may be admitted to a psychiatricfacility as an informal patient for the purpose oftreatment of a mental disorder if a healthpractitioner has found the person incapable ofmaking decisions about a proposed treatment andhas obtained consent to treatment from theappropriate substitute decision- maker and anyone of the following applies:the person does not object to the admission;the person is under 16 years old;the consent giver is the patient’s court-appointed

guardian of the person if the guardian has theauthority to make the type of decisionrequired;

the consent giver is the person’s attorney forpersonal care under a valid “UlyssesContract” that specifically allows the use ofnecessary and reasonable force to admit theperson to a psychiatric facility.

OTHER INFORMAL ADMISSIONS

The above rules are for admission to apsychiatric facility for the purpose of treating amental disorder. Different rules apply to othersituations.

GENERAL INFORMATION ON INFORMAL

ADMISSION

The law does not set a maximum time period foran informal admission.

An informal patient may apply to the Consentand Capacity Board to review the informaladmission and/or the finding of incapacity. TheBoard must review the status of long-terminformal patients in psychiatric facilities who arebetween the ages of twelve and sixteen. Anytime six months passes without the young personapplying, the psychiatric facility is required toinform the Board so that a hearing can be held.

INDIVIDUALS CHARGED WITH A CRIMINALOFFENCE

The Mental Health Act and the Criminal Codeeach have special provisions dealing withpersons who are charged with a criminal offenceand are, or may be, suffering from a mentaldisorder.

UNDER THE MENTAL HEALTH ACT

A judge may order a person appearing before thecourt to attend a psychiatric facility forexamination if:the person is charged with or convicted of a

criminal offence; andthe judge has reason to believe that the person is

suffering from a mental disorder.

The judge may also order that the person beadmitted to a psychiatric facility for a period ofup to two months.

An order for admission or examination may onlybe made with the agreement of the seniorphysician at the psychiatric facility.

In both situations, the senior physicianresponsible for clinical services at the facilitymust give the judge a written report.

UNDER THE CRIMINAL CODE

A person who is found unfit to stand trial or notcriminally responsible for an offence because ofmental disorder, may be detained in a psychiatricfacility designated by the Minister of Health andLong-Term Care, or released subject toconditions. Sometimes the conditions include arequirement that the person (referred to as the“accused”) report to the administrator of apsychiatric facility.

A tribunal known as the Ontario Review Board,appointed under the mental disorder part of theCriminal Code, is required to make decisionsabout the custody and conditional discharge ofthose people considered unfit, or not criminallyresponsible. The Board may order the absolutedischarge of a not criminally responsibleaccused.

(8)

An accused who is detained in a psychiatricfacility, is generally subject to the statutory rulesthat govern hospitalization and treatment and isalso subject to the special rules in the CriminalCode governing the care and treatment ofmentally disordered offenders.

UNAUTHORIZED ABSENCE OF A PATIENT

The Mental Health Act contains specialprovisions for the return of individuals to apsychiatric facility. These provisions apply topersons who are legally required to stay in thefacility but are absent without permission. Theperson may be returned to the same psychiatricfacility or to the closest psychiatric facility.

Once the officer in charge becomes aware of aperson’s absence an Order for Return (Form 9)must be issued forthwith. A police officer or anyother person to whom the officer in charge issuesthe Order must make reasonable attempts toreturn the person.

A Form 9 is valid for one month after the officerin charge becomes aware of the absence. If theperson is still at large one month after the officerin charge becomes aware of the absence, themissing patient is legally considered dischargedfrom the facility.

Assisting a person who is on an unauthorizedabsence from a psychiatric facility to remainoutside of the facility is an offence.

YOUNG PERSONS

The provisions of the Mental Health Act and theHealth Care Consent Act apply to persons of allages. A young person may be admitted to apsychiatric facility as a voluntary, involuntary orinformal patient under those provisions.

In addition, young persons are also covered bythe Child and Family Services Act. Theseprovisions only apply to young persons under theage of 16, unless the young person is already thesubject of a child protection order by the court. Ifthere is such an order, these provisions applyuntil age 18.

BY ORDER OF A JUSTICE OF THE PEACE

Anyone may ask a justice of the peace to sign anOrder for Examination (Form 2). The purpose ofthe Form 2 is to allow the police to apprehendand bring the person to a physician forexamination. The examination will usually bedone at a hospital emergency unit. The purposeof the examination is for the physician to decidewhether or not to sign a Form 1, whichauthorizes the detention and assessment of theperson, in hospital, for up to 72 hours (see page10, By Order of a Physician).

A justice of the peace can use two methods toissue a form two.

Method One:

The Justice of the Peace may issue a Form 2 if atleast one of the criteria from both of thefollowing two tests are met.

The Past/Present Test. The Justice of the Peacemust receive information under oath that theperson:has threatened or is threatening to cause bodily

harm to self; orhas attempted or is attempting to cause bodily

harm to self; orhas behaved or is behaving violently towards

another person; orhas caused or is causing another person to fear

bodily harm from him or her; orhas shown or is showing a lack of competence to

care for self.

The Future Test. The Justice of the Peace mustalso have reasonable cause to believe the personis apparently suffering from mental disorderthat will likely result in:serious bodily harm to self; orserious bodily harm to another person; orserious physical impairment of self.The third ground, "serious physical impairmentof self," is designed to deal with unintentionalharm.

(9)

Examples of unintentional harm might includewandering in the extreme cold, or putting oneselfat serious risk for harm at the hands of others, orthrough gross neglect. A justice of the peace isnot required to make a medical diagnosis.

Method Two

A justice of the peace may also issue an order forthe examination of the person if the followingtest is satisfied.

First, the justice of the peace must receiveinformation under oath that the person:1) has previously received treatment for a

mental disorder of an ongoing or recurringnature that, when not treated will likely resultin:

a) Serious bodily harm to the person; orb) Serious bodily harm to another person; orc) Substantial mental or physical

deterioration of the person or;d) Serious physical impairment of the

person.

AND

The person has shown clinical improvement as aresult of the treatment.

In addition, the justice of the peace must havereasonable cause to believe that the person:

2) Is apparently suffering from the same (or asimilar) mental disorder as the one for whichhe or she previously received treatment

AND

Given the person's history of mental disorder andcurrent mental or physical condition, the personis likely to:

a) cause serious bodily harm to self; orb) cause serious bodily harm to another

person; orc) suffer:

i) substantial mental deterioration; orii) substantial physical deterioration; oriii) serious physical impairment;

AND

The person is apparently incapable, within themeaning of the Health Care Consent Act, 1996,of consenting to his or her treatment in apsychiatric facility and the consent of his or hersubstitute decision-maker has been obtained.

Once the order for the examination of the personis signed, it authorizes a police officer toapprehend the person named on the form.

A Form 2 signed by a justice of the peace and aForm 1 signed by a physician (page 10) aresimilar in the following way:both forms authorize apprehension of the person

in the community for a period of seven days,including the day that the form is signed.

A Form 2 and a Form 1 are different in severalways, including the following:a Form 1 authorizes the holding of the person for

up to 72 hours at a psychiatric facility. TheForm 2 does not. The Form 2 authorizes thedetention of a person just long enough for adoctor to make an initial examination. Thedoctor will decide if a Form 1 is appropriate.

If the doctor examines a person brought to himor her on a Form 2 and then signs a Form 1, theperson can be detained in a psychiatric facilityfor an assessment as described below. If thedoctor does not sign a Form 1 then, dependingon the circumstances the person may be:admitted, with his or her consent, as a voluntary

patient;admitted as an informal patient. (Informal

admission is only permitted in limitedcircumstances and requires the consent of theperson entitled to make treatment decisionsfor the person.);

released; orplaced on a community treatment order,

assuming the statutory criteria are met.

Justices of the peace can be found in provincialcourt houses during normal business hours. Inemergency situations police are often able tohelp find a justice of the peace.

(10)

BY A POLICE OFFICER ACTING ON HISOR HER OWN AUTHORITY UNDER THEMENTAL HEALTH ACT

In certain circumstances a police officer withouta Form 2 (see page 8) may take a person incustody for an examination by a physician. Theexamination will usually be done at a hospitalemergency unit. The purpose of the examinationis for the physician to decide whether or not tosign a Form 1 which authorizes the detention andassessment of the person, in hospital, for up to72 hours (see page 10, By Order of a Physician).

An officer may only exercise this authority if:the officer has reasonable cause to believe that it

would be dangerous to wait for a justice ofthe peace to sign a Form 2; and

the officer has reasonable and probable groundsto believe that a person is acting or has actedin a disorderly manner.

(The courts have interpreted this to meanbehaviour that is to some extent irrational,although not necessarily unruly. There is no needfor the officer to have reasonable and probablegrounds to believe that criminal conduct isoccurring or has occurred.)

The following two tests must also be met.

The Past/Present Test: The officer must havereasonable cause to believe that the person:has threatened or is threatening to cause bodily

harm to self; orhas attempted or is attempting to cause bodily

harm to self; orhas behaved or is behaving violently towards

another person; orhas caused or is causing another person to fear

bodily harm from him or her; orhas shown or is showing a lack of competence to

care for self.

The Future Test: The officer is of the opinionthat the person is apparently suffering from amental disorder that will likely result in:serious bodily harm to the person; orserious bodily harm to another person; orserious physical impairment of the person.

The third ground of "serious physical impairmentof the person" is designed to deal withunintentional harm.

Examples of unintentional harm might includewandering in the extreme cold or putting oneselfat serious risk for harm at the hands of others orthrough gross neglect.

If an officer brings a person in custody for anexamination, the person may be held longenough for a physician to make an initialexamination. If the doctor signs a Form 1, theperson can then be detained in a psychiatricfacility for up to 72 hours for an assessment.

Depending on the circumstances, the person mayalso be admitted as a voluntary or informalpatient, or may be:admitted, with his or her consent, as a voluntary

patient;admitted as an informal patient. (Informal

admission is only permitted in limitedcircumstances and requires the consent of theperson entitled to make treatment decisionsfor the person);

released.; orthe subject of a community treatment order.

BY ORDER OF A PHYSICIAN

The Mental Health Act gives physicians animportant role in ensuring the safety of thosesuffering from a mental disorder, as well as thesecurity of the wider public. The law gives everyphysician in Ontario the right to sign anApplication for Psychiatric Assessment (alsoreferred to as an “APA” or “Form 1”).

The Form 1 authorizes the apprehension,detention and assessment of a person who meetsthe criteria in the Act. This procedure is designedto be used by all physicians including those whoare not mental health specialists.

The assessment must take place in a hospital thatis recognized as a psychiatric facility and canlast for a maximum of 72 hours.

(11)

A physician may use two methods to issue aForm 1.

Method One

A physician may sign a Form 1 if he or she hasexamined the person in the past seven days andhas reasonable cause to believe that at least oneof the criteria from both of the following twotests are met.

The Past/Present Test: The physician must havereasonable cause to believe that the person:has threatened or is threatening to cause bodily

harm to self; orhas attempted or is attempting to cause bodily

harm to self; orhas behaved or is behaving violently towards

another person; orhas caused or is causing another person to fear

bodily harm from him or her; orhas shown or is showing a lack of competence to

care for self.

The Future Test: The physician must form anopinion as to whether the person is apparentlysuffering from mental disorder that will likelyresult in:serious bodily harm to self; orserious bodily harm to others; orserious physical impairment of self.

The third ground of "serious physical impairmentof self" is designed to deal with unintentionalharm.

Examples of unintentional harm might includewandering in the extreme cold or putting oneselfat serious risk for harm at the hands of others orthrough gross neglect.

Method Two

A physician may also issue a Form 1 if thefollowing test is satisfied:

The physician examines the person and hasreasonable cause to believe that the person:1) has previously received treatment for a

mental disorder of an ongoing or recurring

nature that, when not treated will likely resultin;a) Serious bodily harm to the person; orb) Serious bodily harm to another person; orc) Substantial mental or physical

deterioration of the person or;d) Serious physical impairment of the

person.

AND

The person has shown clinical improvement as aresult of the treatment.

In addition, the physician must be of the opinionthat the person:2) Is apparently suffering from the same (or a

similar) mental disorder as the one for whichhe or she previously received treatment

AND

3) Given the person's history of mental disorderand current mental or physical condition, theperson is likely to cause:a) Serious bodily harm to self; orb) Serious bodily harm to another person; orc) The person is likely to suffer;

i) substantial mental deterioration; orii) substantial physical deterioration; oriii) serious physical impairment.

AND

4) The person is incapable, within the meaningof the Health Care Consent Act, 1996, ofconsenting to his or her treatment in apsychiatric facility and the consent of his orher substitute decision-maker has beenobtained.

For both methods a physician does not have tobe certain that "serious bodily harm," "seriousphysical impairment," or "substantial mental orphysical deterioration" will result before signingthe Form 1. This is a judgment call. Althoughthis is a serious step, much less certainty andexpertise is required at this preliminary stagethan later in the process.

The doctor may base his/her opinion on anycombination of personal observations and

(12)

information given by other people(professionals, family, community, etc.).

In some cases the information that the doctorrequires will come entirely from theexamination. In other cases the examination maynot provide all of the information necessary andthe doctor will rely on information provided byothers for some or all of the necessaryinformation. This is permissible so long as theexamination has taken place as required. Thedoctor must indicate the basis for signing theform, and date and sign it.

A physician may sign a Form 1 at any timewithin seven days of examining the person. Thisseven-day period includes the day of theexamination.

Once the Form 1 is signed a new seven-dayperiod begins. For seven days after the physiciansigns the Form 1, anyone (usually a policeofficer) may take the person “in custody” to aSchedule 1 psychiatric facility. This seven-dayperiod includes the day that the form was signed.

The law uses the words “take in custody” toclarify the authority to use reasonable force totake the person to a psychiatric facility if theperson refuses to go voluntarily.

Once the person is brought to the psychiatricfacility, the Form 1 allows the facility to detain,restrain, observe and examine the person for aperiod of up to 72 hours.

Detention at a psychiatric facility under a Form1 is a preliminary step for the purpose ofdetermining whether involuntary status isappropriate. Under the Mental Health Act,involuntary status will only begin if and when aCertificate of Involuntary Admission (Form 3) issigned or the person is admitted on some otherbasis.

INDIVIDUALS COMING FROM OUTSIDE OFONTARIO

If the Minister of Health and Long-Term Carehas reasonable cause to believe that a personwho suffers from a mental disorder of a nature orquality likely to result in serious bodily harm toself or others may be coming into the province,the Minister may make an order (Form 13). AForm 13 order may also be signed by otherMinistry officials who have been given thatauthority by the Minister.

A Form 13 is not valid outside of Ontario. TheForm 13 has the same legal effect as a Form 1except that it is not subject to a seven-day timelimit.

The person may be brought to a psychiatricfacility for detention and assessment for a periodof up to 72 hours.

(13)

PART III: AT THEHOSPITALSome of the terms used in this document aredefined in the definition section, which canbe found at page 35.

POLICE OFFICER'S DUTY AT THEFACILITY

The Mental Health Act states that a police officerwho brings a person in custody to a psychiatricfacility must remain at the facility and retaincustody of the person until the facility hasaccepted custody of the person.

The regulations state that where a person is takento a psychiatric facility under section 33 of theAct, the officer in charge of the facility or his orher delegate shall ensure that a decision is madeas soon as is reasonably possible as to whether ornot the facility will take custody of the person.Where a decision is made to take the person intocustody, the designated staff member shallpromptly inform the police officer or otherperson, of the decision.

THE ASSESSMENT

If the staff at the psychiatric facility wish, theymay hold a person on a Form 1 (application byphysician) or a Form 13 (regarding a personcoming from outside the province) for up to 72hours. According to the Mental Health Act, thestaff may, "detain, restrain, observe andexamine" the person in the facility "for not morethan 72 hours."

Note: A person brought to the facility on thebasis of a Form 2 may only be held longenough for a doctor to make an initialexamination and decide whether a Form 1 isappropriate.

After the detention period at the psychiatricfacility has started, the attending physician islegally required to give the person a form thatexplains the reasons for the detention and theright to contact a lawyer (Form 42). The MentalHealth Act specifically requires that the Form 42

be given in order to ensure that the Charter ofRights is complied with. The courts have statedthat neglect of this obligation will usually makethe detention unlawful.During the detention period, the person will beassessed in order to decide on the nextappropriate steps. Options include:discharging the person without further action;arranging for treatment or referral in the

community;admitting him or her as:an involuntary patient;a voluntary patient;an informal patient; orissuing or renewing a community treatment order

for the person .

A decision to admit the person as an involuntarypatient may only be made by a physician otherthan the one who signed the Form 1. The processand criteria for signing a Certificate ofInvoluntary Admission (Form 3) are describedbelow.

The meaning of “informal patient” has changedover the years. See page 6 for an explanation ofthe term and a discussion of the limitedcircumstances in which informal admission ispermitted.

After the assessment is complete, the attendingphysician must release the person if he or she isof the opinion that the person is not in need ofpsychiatric treatment.

RELEASE OF PERSON BY OFFICER IN CHARGE

One of the above steps must be taken before theend of the 72-hour maximum detention period. Ifthe person is still at the hospital at the end of the72 hours and has not been admitted as aninformal, involuntary or voluntary patient, theofficer in charge of the psychiatric facility must,by law, release the person.

INVOLUNTARY PATIENTS

An involuntary patient is a person held in apsychiatric facility under a Certificate of

(14)

Involuntary Admission (Form 3), or a Certificateof Renewal (Form 4).

Involuntary status gives authority, subject to therules in the Mental Health Act, to detain, restrainand examine the patient at a Schedule 1psychiatric facility.

The rules regarding consent to treatment applyto involuntary patients in the same way as theyapply to all other patients. Capable consent fromthe patient, or from a substitute if the patient isnot capable, is required for non-emergencytreatment. Psychosurgery, with or withoutconsent, may not be performed on an involuntarypatient.

CERTIFICATE OF INVOLUNTARY ADMISSION

(FORM 3)

A person may be put on involuntary status (Form3) only if he or she fits one of the following fourcategories:the person is currently being detained on an

Application by Physician for PsychiatricAssessment (Form 1) and the maximum 72-hour detention period has not yet expired.The Form 3 may not be signed by the samephysician who signed the Form 1. Thisprovides for a mandatory second opinion;

the person is currently being detained on anOrder to Admit a Person Coming intoOntario (Form 13) and the maximum 72-hourdetention period has not yet expired;

the person is an informal patient in a Schedule 1psychiatric facility;

the person is a voluntary patient (see Definitions,page 35) under the Mental Health Act in aSchedule 1 psychiatric facility.

Other individuals, for example those brought tohospital on a Form 2 from a justice of the peace,may not be placed directly on involuntary status.However, if it is appropriate in thecircumstances, a Form 1 may be used in thosesituations.

A Form 3 is valid for up to two weeks, includingthe date that it is signed. For example, a Form 3

signed any time on a Tuesday will expire on thesecond Monday following, at midnight.

The legal requirements that must be met whensigning a Form 3 are explained on page 14.

CERTIFICATE OF RENEWAL (FORM 4)

A Certificate of Renewal (Form 4) is used torenew the involuntary status of a person alreadyon a Form 3 or a previous Form 4. This processmay be repeated as often as the attendingphysician feels is appropriate and the legalcriteria are met. The patient must be examinedand the new form completed before the previousform expires.

The first Form 4 is valid for up to one month.The second Form 4 is valid for up to two monthsand the third and each subsequent Form 4 isvalid for up to three months. Each periodincludes the date of signature.

Most patients are kept on involuntary status for aperiod of days or weeks but some individuals areheld as involuntary patients for many months oryears. This is perfectly legal if all of the requiredprocedures have been followed.

This system of renewals ensures frequent accessto the Consent and Capacity Board for a reviewof a patient’s involuntary status. A patient hasthe right to a hearing each time a new certificateis signed.

A patient’s status is automatically reviewed bythe Consent and Capacity Board after everyfourth Form 4 is signed, even if the patient doesnot ask for the Board hearing. The right to thisautomatic review cannot be waived.

The legal requirements that must be met whensigning a Form 4 are explained below.

The legal requirements that mustbe met when signing a Certificate ofInvoluntary Admission (Form 3) or Certificateof Renewal (Form 4).

Method One

(15)

The attending physician shall complete acertificate of involuntary admission or certificateof renewal if he or she examines the person andis of the opinion that:1) the person is suffering from mental disorder

of a nature or quality that, unless the personremains in the custody of the psychiatricfacility, likely will result in:a) serious bodily harm to self; orb) serious bodily harm to another person; orc) serious physical impairment of self;

AND

2) the person is not suitable for admission as aninformal or voluntary patient.

Method Two

The attending physician shall complete acertificate of involuntary admission or acertificate of renewal if he or she examines thepatient and is of the opinion that the patient:

1) has previously received treatment for amental disorder of an ongoing or recurringnature that, when not treated will likely resultin;a) Serious bodily harm to the person; orb) Serious bodily harm to another person; orc) Substantial mental or physical

deterioration of the person; ord) Serious physical impairment of the

personAND2) the person has shown clinical improvement

as a result of the treatment;AND3) the person is suffering from the same (or a

similar) mental disorder as the one for whichhe or she previously received treatment;

AND

4) Given the person's history of mental disorderand current mental or physical condition, theperson is likely to cause:a) Serious bodily harm to self; orb) Serious bodily harm to another person; orc) Is likely to suffer;

i) Substantial mental deterioration; or

ii) Substantial physical deterioration; oriii) Serious physical impairment.

AND

5) The person has been found incapable, withinthe meaning of the Health Care Consent Act,1996, of consenting to his or her treatment ina psychiatric facility and the consent of his orher substitute decision-maker has beenobtained;

AND

6) The person is not suitable for admission orcontinuation as an informal or voluntarypatient.

The doctor may base his or her opinion onany combination of personal observations andinformation given by other people(professionals, family, community, etc.).

In some cases the information that the doctorrequires will come entirely from theexamination. In other cases the examination maynot provide all of the information necessary andthe doctor will rely on information provided byothers for some or all of the necessaryinformation. This is permissible so long as theexamination has taken place as required.

How a patient has behaved while under the Form1, Form 3 or previous Form 4 may be importantin deciding whether to sign the new form.However, inappropriate behaviour during thisperiod is only one indicator of whether thecriteria for involuntary status are met.Inappropriate behaviour is not always necessaryin order for a Form 3 or Form 4 to be signed.

The physician signing a Form 3 or Form 4, mustgive the patient a written notice (Form 30),which states:that the person is an involuntary patient;the reasons for placing the patient on involuntary

status; andthat the person has the right to retain legal

counsel and to contest the involuntary statusby applying to the Consent and CapacityBoard.

(16)

The physician must also inform the hospitalrights adviser whenever a Form 3 or Form 4 issigned. The rights adviser will visit the patient,explain the situation and inform the person of theright to appeal the involuntary status to theConsent and Capacity Board. If the personwishes to appeal, the rights adviser must assistwith the application and help to obtain legalservices.

The officer in charge of the psychiatric facility,or his or her representative, must review eachForm 3 and Form 4 immediately after it iscompleted. The purpose of this review is todetermine if the form has been properlycompleted according to the criteria in the MentalHealth Act. If not properly completed, theattending physician must be informed. Theperson must then be reexamined and eitherreleased or put on a new form. If this does nothappen, the officer in charge must release theperson.

CHANGE FROM INVOLUNTARY TO VOLUNTARY

STATUS

If a certificate of involuntary admission (Form 3)or certificate of renewal (Form 4) expires beforethe attending physician completes anothercertificate, the patient becomes a voluntarypatient.

The attending physician may change the status ofa patient at any time from involuntary patient tovoluntary by completing a Form 5. Thephysician must note on the Form 5 the reason forchanging the patient’s status.

A patient should always be informed of a changeto voluntary status.

A change from involuntary to voluntary statusdoes not necessarily mean that the patient isready to leave the facility. It may be that theattending physician believes that the patient nolonger meets the legal test for involuntary statusor that he or she is of the view that the patienthas become an appropriate candidate forvoluntary status.

A voluntary patient who is considering leavingthe facility should discuss the matter with his orher attending physician before making anydecision.

CONFIDENTIALITY OF PSYCHIATRICRECORDS IN A PSYCHIATRIC FACILITY

SPECIAL RULES FOR RECORDS IN A

PSYCHIATRIC FACILITY

The Mental Health Act has special rulesregarding the information contained in apatient’s clinical record. Legally, the clinicalrecord includes all or part of a patient’s recordcompiled in a psychiatric facility. These rulescover the records of inpatients, outpatients, andex-patients.

WHERE THE RULES DO NOT APPLY

The rules described below govern the conditionsunder which a psychiatric facility may discloseinformation from a clinical record. The rules donot govern how the facility may gatherinformation. For example, the Mental Health Actdoes not require consent in order to receiveinformation from a family member of a patientwho approaches staff.

The rules do not apply to records of institutionsand individuals who do not fall under the MentalHealth Act. For example, the rules in the MentalHealth Act do not apply to counselling or healthcare records kept by institutions that are not partof designated psychiatric facilities.

THE GENERAL RULE IS NON-DISCLOSURE

Unless the law specifically allows it, it is strictlyforbidden to disclose, transmit or examine aclinical record.

WHEN DISCLOSURE OF THE RECORD IS

PERMITTED

The patient’s attending physician and the officerin charge of the facility are allowed to see therecord.

(17)

A lawyer who has been retained to represent apatient at a hearing of the Consent and CapacityBoard is entitled to access the clinical record. Noconsent is required.

A. Release of records with consentThe officer in charge may disclose, transmit orpermit the record’s examination in any of thefollowing circumstances:to any person with the consent of the patient if

the patient is considered to be competent forthis purpose (and has signed a consent form(Form 14);

to any person with the consent of the appropriatesubstitute decision-maker, where the patientis not mentally competent, and the substitutedecision-maker has signed a consent form(Form 14).

B. Release of records without consentThe officer in charge may disclose, transmit orpermit the record’s examination in any of thefollowing circumstances:to any person employed in or on the staff of a

psychiatric facility but only for the purposeof the assessment or treatment of the patient;

to the chief executive officer of another healthfacility currently involved in the direct healthcare of the patient. The chief executiveofficer of the treating facility must make therequest in writing to the officer in charge;

to a physician who is considering issuing orrenewing, or who has issued or renewed acommunity treatment order or, to a physicianor other person named in a person'scommunity treatment plan as being involvedin the person's treatment or care andsupervision. The physician or other namedperson must make the request in writing tothe officer in charge.

in an emergency, to any person currentlyinvolved in the direct health care of thepatient in a health facility. This provisionapplies where delay in obtaining consentwould result in the patient experiencingsevere suffering or would put the patient atrisk of sustaining serious bodily harm;

to the personal representative of a patient whohas died;

to a lawyer acting for the psychiatric facility oran employee of the facility;

to a person determining capacity for treatment,admission to a care facility, or personalassistance services;

to any person, for research, academic pursuits, orthe compilation of statistical data. Thepatient’s name and any other means ofidentification of the patient must be removed.

COMMUNITY TREATMENT ORDERS

When consultation and sharing ofinformation is permitted.

As with a patient's clinical records, there is ageneral rule of non- disclosure with respect tothe fact that a person is subject to, or beingconsidered for, a community treatment order.The legislation provides that no person shalldisclose the fact that a person is being consideredfor or is subject to a community treatment orderwithout the consent of the person or the person'ssubstitute decision-maker.

Exceptions to the general rule of non-disclosurearise in the following two circumstances.

The Mental Health Act provides that a physicianwho is considering issuing or renewing acommunity treatment order may consult withcertain people. A physician may consult with amember of a regulated health profession, amember of the Ontario College of SocialWorkers or any other person to determinewhether a community treatment order should beissued or renewed.

As well, the Mental Health Act provides for thesharing of information between certain peoplefor the purpose of treating, caring for andsupervising a person who is subject to acommunity treatment order. A member of aregulated health profession, a member of theOntario College of Social Workers or any otherperson who is named in a community treatmentplan as participating in the treatment or care andsupervision of a person subject to the order mayshare information with each other.

(18)

PATIENT’S OWN ACCESS TO RECORDS

A person who is or was a patient in a psychiatricfacility and who is mentally competent to do so,may examine or copy his or her clinical record.The person must make this request in writing(Form 28) and may be required to pay copyingcharges.

If the person is considered to be incompetent forrecords' access, then his or her substitutedecision-maker for that purpose is entitled toaccess instead of the patient. The substitutedecision-maker must make this request in writing(Form 28) and may be required to pay copyingcharges.

The hospital must give the person access to therecord unless it has received permission from theConsent and Capacity Board to withhold all orpart of the record. Access may not be deniedunless the Board has given its permission.

The application to the Board is made by theofficer in charge on the advice of the attendingphysician. The application must be made within7 days of the request for access. The Board mayonly grant the request if it believes thatdisclosure will likely result in:serious harm to the treatment or recovery of the

patient while in the facility; orserious physical or emotional harm to another

person.

WHERE THE PATIENT BELIEVES THE RECORD IS

WRONG

If a patient believes there is an error or omissionin the record a patient may request a correction.If the request is not granted, the patient mayrequire that a “statement of disagreement”reflecting the requested changes be attached tothe clinical record.

ACCESS TO RECORDS AND THE ISSUE OF

COMPETENCE

Any person who is at least sixteen years old andcompetent to do so, may appoint a representativefor the purpose of records access. Therepresentative may see the record and may give

access to the record. The appointment must bemade in writing in the presence of a witness. Theattending physician must inform every patient ofthis right within the first 48 hours after theperson is admitted or registered in the facilityand must give him a Form 36 which providesfurther information.

The appointment of this representative may bemade subject to terms and conditions. If theperson is capable of doing so, he or she mayrevoke the appointment at any time. This mustbe done in writing.

An attending physician may determine that aperson is incompetent to examine or permit thedisclosure of his or her clinical record. If afinding of incompetence is made, access to therecord will be handled by a substitute decision-maker on the person’s behalf.

If the patient (when competent with regard torecords) or the Consent and Capacity Board hasappointed a representative, that person will makethe decisions with respect to access to theclinical record. If no appointment has been made,the person who could make treatment decisionsfor the patient will also make decisions withregard to access to the clinical record.

Following the finding of incompetence, thephysician must do the following:give the person a Form 33, which explains the

finding and the right to appeal it to theConsent and Capacity Board;

give the person a Form 40, which explains theright to apply to the Board for theappointment of a representative to makedecisions with regard to access to the clinicalrecord;

inform the rights adviser, who will meet with theperson.

The person may apply to the Consent andCapacity Board to challenge the finding ofincompetence or to ask that a representative beappointed.

The Board will review the finding of competencyor consider the application to appoint a

(19)

representative in the same way that it deals withsimilar matters regarding capacity to consent totreatment, or the appointment of a representativeunder the Health Care Consent Act.

DISCLOSURE IN MATTERS BEFORE THE

CONSENT AND CAPACITY BOARD

All parties to a hearing before the Consent andCapacity Board must be allowed to examine andcopy any and all documents that will be used atthe hearing. Parties must also be allowed to seeand copy reports if the contents of the reportswill be given in evidence, even if the report itselfis not going to be shown to the Board. There areno exceptions to this rule. Under no conditionmay records or the contents of reports be used atthe hearing if access to them has been denied.

Before the hearing, a person’s lawyer (or otherindividual who will be representing the person atthe hearing) is normally entitled to see and copy(at his or her expense) all of his or her medicaland health records. If the person is at least 16years old and capable with respect to accessingthe record, he or she is also entitled to see andcopy these materials. Under no condition mayrecords or the contents of reports be used at ahearing if the person has been denied access tothem.

However, a person may be denied access to hisor her records in certain limited circumstances.There are special procedures under the Child andFamily Services Act and the Long-Term Care Actthat a doctor may use to limit a person’s accessto his or her records created under that Act. Aperson may also be denied access to records in apsychiatric facility or a long term care facility ifthe hospital authorities have asked the Board forpermission and the Board has given thatpermission.

It is against the law to deny access unless theseprocedures have been followed. Copies shouldbe provided at nominal cost.

(For more information about the Consent andCapacity Board see page 32.)

DISCLOSURE IN COURT OR TO A LEGAL BODY

The officer in charge of a psychiatric facility, ora person designated in writing by him or her,must disclose, transmit or permit theexamination of a clinical record if required for acourt matter or by some other legal body entitledto demand it.

However, if the attending physician states inwriting that this disclosure is likely to harm thetreatment or recovery of the patient, or harm athird person (physically or mentally) the court orother legal body will hold a closed hearing. Itmay not order disclosure unless satisfied that it isessential in the interests of justice.

No one is permitted to disclose before any courtor other legal body any information obtained inthe course of assessing or treating a patient in apsychiatric facility unless:the person is mentally competent and consents;

orthe incompetent person’s substitute decision-

maker consents; orthe court or other legal body holds a hearing and

determines that disclosure of the record isessential in the interests of justice. Thishearing must be held on notice to the personor the substitute decision-maker.

This rule does not apply if the legal action wasstarted by a person with regard to his or hertreatment in a psychiatric facility.

PROVIDING INFORMATION TO THE PUBLIC

GUARDIAN AND TRUSTEE

The Public Guardian and Trustee has theresponsibility of investigating allegations that aperson is incapable with respect to property orpersonal care, and that serious harm is occurringor may occur as a result. Allegations andinformation directed to the Public Guardian andTrustee for this purpose are exempted from all ofthe restrictions described above.

DISCLOSURE TO A CORONER

A coroner investigating a death may, inappropriate circumstances, view or copy recordsrelating to a person who has died.

(20)

RIGHTS ADVICE FOR PATIENTS

Every psychiatric facility must have one or morerights advisers.

WHEN RIGHTS ADVICE IS REQUIRED IN A

PSYCHIATRIC FACILITY

The physician in a psychiatric facility mustpromptly notify both the patient and a rightsadviser each time:a certificate of involuntary admission or

certificate of renewal is signed;a patient is found incompetent to examine a

clinical record or to give or refuse consent toits disclosure to others;

an informal patient between the ages of 12 and15 has the right to apply for a review of hisor her informal status;

a certificate of incapacity to manage property ora certificate of continuance is signed.

When the rights adviser is notified by aphysician, he or she is required to promptly meetwith the person to explain the significance of theissue and the right to have it reviewed by theConsent and Capacity Board. If the patientwishes, the rights adviser must assist in makingan application to the Board and obtaining legalservices.

The patient has the right to refuse to meet withthe rights adviser.

RIGHTS ADVICE WITH REGARD TO CAPACITY TO

CONSENT TO TREATMENT FOR A PSYCHIATRIC

DISORDER FOR A PERSON IN A PSYCHIATRIC

FACILITY

With some exceptions, the rules described abovealso apply when a physician determines that apatient is incapable with regard to a treatmentthat has been proposed for a psychiatric disorder.

The exceptions are as follows:the patient is less than 14 years old;the patient has a court-ordered guardian of the

person appointed under the SubstituteDecisions Act with the authority to give orrefuse consent to the treatment;

the patient has a valid Ulysses Contract (see page28) with a provision waiving the person’sright to apply to the Consent and CapacityBoard for a review of the finding ofincapacity effective under the SubstituteDecisions Act;

the patient refuses to meet the rights adviser or isunconscious, semi-conscious or unable tocommunicate comprehensibly despitereasonable efforts to understand the person;

the physician believes that there is an emergency(see Emergency Treatment, page 23);

rights advice has already been provided duringthis admission following a finding ofincapacity with respect to any proposedtreatment for a mental disorder.

RIGHTS ADVICE WITH RESPECT TO COMMUNITY

TREATMENT ORDERS

Before a physician issues or renews acommunity treatment order, he or she must besatisfied that the person subject to the order andhis or her substitute decision-maker, if any, haveconsulted with a rights adviser and have beenadvised of their legal rights.

The person subject to the order has the right torefuse to consult with a rights adviser. If thisoccurs, the rights adviser should inform thephysician.

RESTRAINT

The legal rules known as “common law” requirea caregiver to restrain or confine a person whenimmediate action is necessary to prevent seriousbodily harm to the person or to others.

This means that physical, mechanical orchemical means may be used in an emergency toplace a person under control when necessary toprevent serious bodily harm to self or to others.Only the minimum amount of restraintreasonable in the circumstances is allowed. Thisis based on the physical and mental condition ofthe person.

Neither the consent of the patient, nor of thesubstitute decision-maker, is needed for

(21)

emergency restraint, however, extensivedocumentation is required.

The use of restraint on a patient in a psychiatricfacility must be clearly documented in thepatient’s clinical record. The statement in theclinical record must note:that the patient was restrained;a description of the means of restraint; anda description of the behaviour of the patient that

required that he or she be restrained orcontinue to be restrained.

In addition, when a chemical restraint is used thestatement in the clinical record must include astatement of:the chemical employed;the method of administration; andthe dosage.

The restraint rules set out above apply to allpatients in psychiatric facilities, whether or nottheir restraint is specifically authorized in theMental Health Act.

COMMUNICATION TO AND FROMPATIENTS

The general rule is that no communicationwritten by or sent to a patient may be opened,examined or withheld. Its delivery must not beinterfered with or delayed.

The officer in charge, or a person acting underhis or her authority, does have the authority toopen and inspect the contents of anycommunication that he or she has reasonablecause to believe:if written by the patient, would prejudice the

patient or be unreasonably offensive to therecipient;

if sent to the patient, would interfere with thepatient's treatment or cause the patientunnecessary distress.

In these situations the officer may stop thecommunication from being delivered orexamined.

Under no circumstances, however, maycommunication written by a patient to a lawyer,the Ontario Ombudsman, a member of theConsent and Capacity Board or a member of theLegislature be opened, examined or withheld.

Communications from a lawyer, a member of theConsent and Capacity Board, or a member of theLegislature to a patient may not be opened,examined or withheld.

TRANSFER OF PATIENTS

The officer in charge, with the advice of theattending physician, may transfer a patient fromone psychiatric facility to another. Amemorandum of transfer must first be completed(Form 10). The power to detain the patientcontinues in the new facility.

If the attending physician advises the officer incharge that a patient requires treatment that is notavailable in the psychiatric facility, the patientmay be transferred to a public hospital for thattreatment. In this situation the senioradministrator of the public hospital has the samepowers of custody and control of the patient asan officer in charge of a psychiatric facility.

The Minister of Health and Long-Term Caremay authorize the transfer of a patient to aninstitution outside of Ontario (Form 12) ifanother jurisdiction has responsibility for thepatient’s hospitalization or if it is in the patient’sbest interests to be hospitalized in anotherjurisdiction.

PSYCHOSURGERY

Psychosurgery is not permitted in Ontario unlessa person is a voluntary patient and has givenvalid, voluntary, informed consent.

(22)

PART IV: TREATMENT

Some of the terms used in this document aredefined in the definition section, which canbe found at page 35.

Ontario has one set of rules for consent totreatment. These rules are found in the HealthCare Consent Act and apply to treatment of alltypes no matter where the treatment is given.These rules also apply to psychiatric treatmentboth inside and outside of the hospital and arethe same for all patients including involuntaryand informal patients.

WHEN THE HEALTH CARE CONSENT ACTDOES NOT APPLY

Certain types of medical procedures arespecifically excluded from the Health CareConsent Act.

Consent with regard to the following proceduresis governed by the general rules known as“common law:”a procedure whose primary purpose is research;the removal of tissue for purposes such as organ

transplant.

Sterilization that is not medically necessary forthe protection of the person’s health is alsoexcluded from the Health Care Consent Act.Common law does not permit this procedure tobe performed. It is, therefore, illegal in Ontarioto perform a sterilization that is not medicallynecessary for the person’s health unless:the person is mentally capable of giving consent;

andthe person has given informed, voluntary

consent.

CONSENT

Treatment requires informed, capable,voluntary consent.

With the exception of certain emergencysituations, all treatment requires informed,capable, voluntary consent. If capable, thepatient makes the decision. If the person is notcapable, the decision is made on his or her behalfby a substitute decision-maker.

The law allows the health practitioner proposingthe treatment to deal with consent in any one ofthe following three ways:the practitioner may decide to obtain consent

each time an individual treatment isadministered;

the practitioner may choose to consider an entirecourse of treatment as one treatment for thepurpose of obtaining consent;

the practitioner may put together a plan oftreatment for the patient and deal with theentire plan of treatment as one treatment forthe purpose of obtaining consent. A plan oftreatment is a plan developed by one or morehealth practitioners that deals with one ormore of the patient’s current health problems,or health problems that the patient is likely tohave in the future given his or her currentcondition. The plan must provide for varioustreatments and may also allow for thewithholding or withdrawal of treatment inlight of the person’s current health condition.

THE MEANING OF CONSENT

Valid consent does not mean a signature on apiece of paper. For consent to be valid, it must beinformed and be given voluntarily by a capableperson. Consent may be oral or written;expressed or implied.

Informed consent means that the healthpractitioner has given information that areasonable person would need to make thedecision and has answered any questions. Theconsent must not be obtained throughmisrepresentation or fraud.

(23)

Unless it is unreasonable in the circumstances, ahealth practitioner may presume that a consent toa treatment includes:consent to variations or adjustments in the

treatment if the nature, expected benefits,material risks and material side effects of thechanged treatment are not significantlydifferent from the original treatment;

consent to the continuation of the same treatmentin a different setting if there is no significantchange in the expected benefits, materialrisks or material side effects as a result of thechange in setting.

Consent may be withdrawn at any time by aperson who is capable of doing so. A person whois capable of consenting to a treatment isconsidered to be capable to withdraw theconsent. A person who becomes capable after atreatment starts is entitled to take over thedecision-making from the substitute decision-maker.

EMERGENCY TREATMENT

There is an emergency when a person isapparently experiencing severe suffering or is atrisk of sustaining serious bodily harm iftreatment is not administered immediately.

A health practitioner may treat without consentin the following emergency situations unless thepractitioner has reasonable grounds to believethat the person, while capable and at least sixteenyears old, expressed a wish to refuse consent tothe treatment:the person appears to be capable but cannot

communicate with the health practitionerbecause of a language difference or adisability. Reasonable steps must be taken tofind a practical means to communicate beforetreatment begins. The treatment may onlycontinue for as long as necessary to enablecommunication. Treatment may only begiven if there is no reason to believe that theperson does not want the treatment;

the patient is incapable, a substitute is notavailable and any delay in finding theperson’s substitute decision-maker wouldprolong the person’s suffering or put the

person at risk of serious bodily harm.Treatment may only continue as long asnecessary to receive a decision from thesubstitute decision-maker;

the substitute decision-maker refuses to consentto the person’s treatment and the practitioneris of the opinion that the substitute decision-maker has not followed the decision makingrules found in the Health Care Consent Act.These rules are discussed on page 25.

CAPABLE OF CONSENTING TOTREATMENT

Capable individuals make their own treatmentdecisions.

A person is capable of making decisions about atreatment if able to understand the informationrelevant to making a decision about the treatmentand able to appreciate the reasonably foreseeableconsequences of a decision or lack of decision.

Some people are incapable of consenting to onetreatment, yet capable of consenting to others. Aperson may be incapable of consenting to atreatment at one time but capable at another.

A person is presumed to be capable of making atreatment decision unless there are reasonablegrounds to believe that the person is incapable.

Even if a person is willing to have a treatment,a health practitioner may not presume that heor she is capable of consenting to the treatmentwhen it is unreasonable to do so.

INCAPABLE OF CONSENTING TOTREATMENT

An incapable person cannot provide validconsent.

A health practitioner who is proposing atreatment may determine that the person isincapable of making decisions about thetreatment. The decisions must then be made bythe proper substitute decision-maker.

(24)

A person does not become incapable onlybecause a health practitioner does not speak hisor her language or has other difficulties incommunicating with the patient. The healthpractitioner is obliged to take the steps necessaryto establish communications.

OBLIGATIONS REGARDING FINDINGS OF

INCAPACITY

The law requires that all health practitionerswho make findings of incapacity with respect toproposed treatments provide certain informationto their patients. This requirement applies to alltypes of treatment in all settings.

Each health profession in Ontario has guidelineson what information is to be given by itsmembers. Generally speaking, these guidelinesrequire:that the practitioner explain that:treatment is needed;certain decisions are required;the patient is not in a position to make those

decisions; anda particular person will be asked to make the

decisions for the patient.that if the patient expresses concern or

opposition, the health practitioner must alsoexplain to the person that he or she has theright to apply to the Consent and CapacityBoard to review the finding of incapacity orto have another substitute decision-makerappointed. The practitioner must also assistwith the application.

If a health practitioner finds a patient in apsychiatric facility incapable of consenting to atreatment for a mental disorder both the patientand a rights adviser must be notified. There arecertain exceptions to this rule. (Please see page20 for further information.)

REVIEW OF A FINDING OF INCAPACITY

Most persons found incapable of consenting totreatment may apply to the Consent and CapacityBoard for a review.

In some circumstances a person may be deemedto have applied for a review of his of her

capacity without actually filing an application fora capacity hearing.

A review is not permitted if:the person has a court-appointed guardian with

authority to make the decision;the person has made a valid Ulysses Contract

containing words waiving the right to ahearing;

the hearing process regarding a finding ofincapacity for the same or a similar treatmentwas completed less than six months before.The person may ask the Consent andCapacity Board to allow a hearing in thesecircumstances if there has been a materialchange in circumstances.

SITUATIONS WHERE TREATMENT MAY NOT BE

STARTED

Except in an emergency, treatment of anincapable patient may not begin if thepractitioner is informed that:the patient plans to apply to the Consent and

Capacity Board for a review of the finding ofincapacity.(This does not apply if the patient is notentitled to bring the application; see above.);

OR

the patient or another person plans to apply forthe appointment of a representative.(This does not apply if the patient has acourt-appointed guardian or attorney forpersonal care with authority to make thedecision.)

The treatment may not begin until:a further 48 hours passes without an application

being made;

OR

• the application is withdrawn.

If the Board issues its decision and thepractitioner is informed that one of the partiesintends to appeal to the courts, treatment may notstart until:seven days from the time of the Board’s decision

passes without an appeal being made;

OR

(25)

the entire appeal process is completed.

The health practitioner may ask the court toallow treatment pending an appeal.

The above restrictions prevent treatment frombeing started in certain situations. Therestrictions do not, however, apply to treatmentsthat have already started.

SUBSTITUTE DECISION-MAKING FORTREATMENT

Capable people are entitled to make their owntreatment decisions. When a person has beenfound incapable of consenting to a treatment, asubstitute decision-maker must make thesedecisions.

The Health Care Consent Act sets out a list ofpotential substitute decision-makers. The highestranking person on this list who is available,capable and willing to make the decision is thesubstitute decision-maker for the incapableperson for that particular decision.

A person is available if it is possible, within areasonable time, to communicate with the personto obtain consent or refuse a treatment.

It is up to the health practitioner to decide if apotential substitute decision-maker is incapableof making the required decision. If this happens,the health practitioner must go to the next personon the list. There is no appeal from the opinionof the practitioner.

LIST OF POTENTIAL SUBSTITUTE DECISION-MAKERS

a guardian of the person (if the guardian has theauthority to make the required decision);

an attorney for personal care (if the power ofattorney document gives authority to theattorney to make the required decision);

a representative appointed by the Consent andCapacity Board (if the representative has theauthority to make that decision);

a spouse, common law spouse or partner;

children and parents (including a children’s aidsociety or other person lawfully entitled tomake treatment decisions instead of aparent);

brothers and sisters;any other relative by blood, marriage or

adoption.

A substitute decision-maker must be at leastsixteen years old unless the patient is his or herchild.

Custodial parents rank ahead of non-custodialparents. A parent barred by court order orseparation agreement from seeing the child ormaking his or her treatment decisions may notparticipate in treatment decisions.

Two persons are not considered to be spouses ifthey are living separate and apart as defined inCanada’s divorce law.

Two persons are common law spouses if they areof the opposite sex and they live as man and wifebut are not married and one of the followingapplies to them:they have lived together for at least a year;they are the parents of a child;they have made a legal cohabitation agreement

under the Family Law Act.

Two persons are considered to be partners if theyhave lived together for at least a year and have aclose personal relationship that is of primaryimportance in both of their lives.

The Public Guardian and Trustee is required tomake treatment decisions in the following twosituations:if no other qualified person is available and

willing to act;if there are two or more qualified substitute

decision-makers of equal rank who aregiving conflicting direction to the healthpractitioner.

RULES FOR MAKING TREATMENT DECISIONS

The substitute decision-maker must follow therules explained below.

(26)

PRIOR CAPABLE WISHES

Every person has the right to expect that his orher capable wishes will be respected.A substitute decision-maker must follow aperson’s most recent capable wishes if:the wish was expressed when the person was at

least 16 years old;the wish is applicable to the circumstances; andit is not impossible to comply with the wish.

Binding wishes may be expressed in a power ofattorney, in any other written form, orally or inany other way.

A substitute decision-maker or a healthpractitioner who proposed a treatment and who isunsure about the nature or validity of anincapable person’s prior wishes may apply to theConsent and Capacity Board for directions(Form D*).

The Consent and Capacity Board also has a verylimited authority to allow a substitute decision-maker to depart from prior capable wishes. If theBoard concludes that the result of a treatment issignificantly better than was anticipated at thetime the capable wish was expressed and that theperson would, if capable, likely consent (FormE*) the Board may give permission to departfrom the prior capable wishes. The Board mayalso allow the health practitioner who proposedthe treatment to apply to obtain permission forthe substitute decision-maker to consent to thetreatment.

BEST INTERESTS

If there are no binding prior capable wishes, asubstitute must act in the incapable person’s bestinterests. In deciding whether a treatment is inthe best interests of the incapable person thesubstitute decision-maker must consider all ofthe following things:the values and beliefs that the substitute knows

the incapable person held when capable andbelieves that he or she would still act on ifcapable;

any non-binding wishes expressed by theincapable person. (This would include, for

example, wishes expressed before age 16, orwhen the person was incapable.);

if the proposed treatment is likely to:improve the incapable person’s condition or

well-being;prevent the incapable person’s condition or well-

being from deteriorating;reduce the extent to which, or the rate at which,

the incapable person’s condition or well-being is likely to deteriorate;

whether the incapable person’s condition orwell-being is likely to improve, remain thesame or deteriorate without the treatment;

whether the benefits the incapable person isexpected to obtain from the treatmentoutweigh the risk of harm to her or him;

whether a less restrictive or less intrusivetreatment would be as beneficial as theproposed treatment.

FAILURE TO FOLLOW THE DECISION-MAKING

RULES

If the health practitioner believes that thesubstitute decision-maker is not following thesedecision-making rules, he or she may apply tothe Consent and Capacity Board (Form G*) todirect the substitute decision-maker to comply.Failure to comply with the decision of the Boardwill result in the substitute decision-maker beingreplaced.

(*For Forms B, C, D, E and G, whenever anapplication of this kind is submitted the lawprovides that the patient is deemed to haveapplied for a review of his or her capacity tomake the relevant decision. This does not applyif the board has determined this issue of capacitywithin the previous six months.)

ADMISSION FOR THE PURPOSE OF TREATMENT

In some cases a substitute decision-maker whoconsents to a person’s treatment may alsoconsent to the person’s admission to a hospital orpsychiatric facility for the purpose of thetreatment. (Please see page 6, InformalAdmission, for further information.)

(27)

There may be situations where an incapableperson expressed wishes with respect to his orher admission to a care facility and those priorwishes are unclear. A substitute decision-makeror the person responsible for authorizingadmissions to a care facility may apply to theConsent and Capacity Board for directions aboutthe nature or validity of the person's wishes withrespect to admission.

PART V: SPECIALLYAPPOINTED SUBSTITUTEDECISION-MAKERS

Some of the terms used in this document aredefined in the definition section, which canbe found at page 35.

POWERS OF ATTORNEY

A FEW WORDS ABOUT LANGUAGE

a "power of attorney" is a document, not aperson

the person making a power of attorney is calledthe "grantor"

the person given authority in a power of attorneyis called the "attorney"

in Canada the word "attorney" does not meanlawyer

A power of attorney is a very powerful type oflegal document that one person can use to grantanother person or persons authority to makeimportant decisions on his or her behalf. Thereare three different types of powers of attorneythat may be made in Ontario.

There are some restrictions on who may grant apower of attorney and who may be an attorney.There are also strict legal rules that attorneysmust follow. These rules govern the conduct ofattorneys and describe the records that theattorney must keep. Anyone becoming anattorney for either property or personal careshould become familiar with and follow theserules.

Blank power of attorney forms are availablefrom a number of sources. However, powers ofattorney are powerful and important documents.It may be a good idea to get professionalassistance when making or signing one.

Nursing homes and homes for the aged may notdemand that a power of attorney be signed as acondition of service or admission.Powers of attorney are very powerful legaldocuments. A person considering a power ofattorney should only give authority to a person inwhom he or she has full confidence. If in doubt itmay be better not to make a power of attorney.No one should be pressured to sign a power ofattorney.

Attorneys are required to follow strict rules ofconduct. These rules are outlined in theSubstitute Decisions Act. Anyone acting as anattorney for personal care or property shouldbecome familiar with and follow these rules.

POWER OF ATTORNEY FOR PERSONAL CARE

A power of attorney for personal care allows aperson (called the grantor) to:name one or more substitute decision-makers

(known as attorneys for personal care) tomake personal care decisions for the grantor;and

give written instructions about particular kinds ofdecisions.

Depending on the wording, an attorney forpersonal care may be authorized to makedecisions about any or all of the following:health care, nutrition, shelter, clothing, hygieneand safety.

A power of attorney for personal care onlycomes into effect if the grantor becomesincapable of making a particular decision.

If the decision required is one covered by theHealth Care Consent Act (treatment, admissionto a nursing home or home for the aged, orpersonal assistance service in a nursing home orhome for the aged), the authority passes to theattorney for personal care when the grantor has

(28)

been found incapable under the Health CareConsent Act. Until that happens, the grantorcontinues to make his or her own decisions.

The grantor may specify how his or her capacityis to be determined for personal care decisionsthat do not fall under the Health Care ConsentAct. If nothing is specified, it comes into effectwhen the attorney for personal care decides thatthe person who has made the power of attorneyis incapable of making the required decision.

In order to be legally capable of making a powerof attorney for personal care, the grantor must:have the ability to understand whether the

proposed attorney has a genuine concern forthe grantor’s welfare; and

appreciate that it may be necessary for theattorney to make decisions on his or herbehalf.

This test is different from the test used to decideif someone is capable of making personal caredecisions. There are many people who areconsidered to be capable of making a power ofattorney for personal care even though they arelegally incapable of making their own personalcare decisions.

The grantor may include specific directions withregard to what decisions are to be made or howdecisions are to be made. Directions of this sortare known as “prior capable wishes.” It is notpossible, however, to include prior capablewishes if the grantor is not legally capable ofdecision-making in the relevant area.

Prior capable wishes may be given orally,included in a power of attorney at the time of thesigning of the document or included in someother written document or expressed in someother manner. Although it is not required, it is agood idea to put prior capable wishes in a writtendocument.

The latest prior capable wish, written or not, isbinding on a person making substitute decisionsunder the Health Care Consent Act or personalcare decisions under the Substitute DecisionsAct. To make a binding prior capable wish a

person must be at least sixteen years old and belegally capable of making decisions of that type.

Prior capable wishes are sometimes referred to as"advance directives” or “living wills.”

ULYSSES CONTRACTS

Some people worry that they will resistnecessary care if they become incapable. In orderto deal with this problem, the SubstituteDecisions Act creates a particularly powerfultype of power of attorney for personal care. Thisis often referred to as a “Ulysses Contract.”

A Ulysses Contract may contain a number ofspecial provisions including clauses allowing forthe use of necessary and reasonable force tofacilitate the person’s hospitalization andtreatment.

Because a Ulysses Contract is so powerful, thereare strict rules that must be followed when it ismade. Failure to follow these rules will make theUlysses Contract invalid. For this reason,professional advice is strongly recommended foranyone wishing to create a Ulysses Contract.

CONTINUING POWER OF ATTORNEY FOR

PROPERTY

A continuing power of attorney for propertygives the attorney the authority to deal with theproperty and money of the grantor.

In order to make a continuing power of attorneyfor property, the grantor must:know the kind and value of his or her property;be aware of obligations to dependents;know that the attorney will have the power to do

whatever the grantor could do with his or herproperty, except make a will (subject torestrictions and conditions set out in thepower);

know that the attorney must account for his orher dealings;

know that, while capable, he or she may revokethe power at any time;

know that, unless managed prudently, the valueof his or her property may decline; and

(29)

know that it is possible that the attorney couldmisuse the authority.

The person making a continuing power ofattorney for property may include specialprovisions directing the decisions of the attorneyand specifying when or under what conditionsthe power of attorney comes into effect. If this isnot specified, the attorney has authority to act atany time once the document is signed.

The person making the power of attorney maychoose to give authority over all of his or herproperty, or may decide to give the attorney onlyresponsibility for certain property. However,careful thought should be given before restrictingthe scope of the attorney’s authority. Restrictionscan affect the attorney’s right to replace thePublic Guardian and Trustee, should that officebecome involved.

A continuing power of attorney for propertyremains in effect even if the person who signs itbecomes incapable.

GENERAL POWER OF ATTORNEY FOR PROPERTY

A general power of attorney for property is onlyvalid when the grantor is capable of managinghis or her own property. It becomes invalidduring any period when the grantor is incapableof managing property. For this reason, this typeof power of attorney is not useful for peoplewishing to plan for their incapacity. This type ofpower of attorney is traditionally used forbusiness or travel purposes.

REPRESENTATIVES APPOINTED BY THECONSENT AND CAPACITY BOARD

Under certain circumstances, the Health CareConsent Act gives the Consent and CapacityBoard the power to appoint someone as therepresentative of an incapable person to makedecisions about treatment.

Applications for the appointment of arepresentative can occur in two ways:

the incapable person may apply to the Consentand Capacity Board to have a specific personnamed as representative (Form B*);

a person may apply to the Consent and CapacityBoard to have him or herself named asrepresentative for an incapable person (FormC*).

(*See Page 26 or page 45)

The Consent and Capacity Board may chooseeither to appoint the proposed representative,appoint a different representative, or refuse toappoint a representative. The Board may placerestrictions or conditions on the appointment andmay amend or revoke the appointment at anytime.

A representative may not be appointed if theincapable person already has an attorney forpersonal care or a guardian of the person.

STATUTORY GUARDIANSHIP FORPROPERTY

Under the Substitute Decisions Act a person isincapable of managing property if unable tounderstand information relevant to making adecision in the management of his or herproperty, or unable to appreciate the reasonablyforeseeable consequences of a decision or lack ofdecision.

A statutory guardianship for property is createdunder a special process that does not require acourt order. A statutory guardian manages aperson’s property if that person becomesincapable of doing so on his or her own. Astatutory guardian may make any decision aboutproperty that the person could if capable, exceptmake a will.

The statutory guardian will initially be the PublicGuardian and Trustee. A person’s spouse,partner, relative, attorney for property or a trustcompany nominated by a spouse may apply totake over from the Public Guardian and Trustee.Statutory guardianship only exists with respectto property. There is no equivalent procedure forpersonal care.

(30)

There are two ways someone may come to havea statutory guardian.METHOD ONE: AVAILABLE IN ANY SETTING

A professional assessor may be asked to visit anyperson who does not have a continuing power ofattorney for property for all of the person’sproperty. The purpose of the visit is to determineif the person is capable of managing property orif a guardian may be appointed to do so. Therequest for the assessment usually comes fromfamily members or caregivers.

A person has the right to refuse the assessment.Before the assessment begins, the law requiresthe assessor to tell the person:the purpose of the assessment;what will happen if the assessor decides that the

person is incapable of managing property;and

that the person has the right to refuse to beassessed. (The assessment may not berefused if it has been ordered by a court.)

An assessor is a member of a defined list ofhelping professions who is specially qualifiedand whose name appears on the list ofrecognized assessors. Assessors are usually inprivate practice and charge a fee to the requestorfor their services. If the assessor finds the personincapable, the Public Guardian and Trusteebecomes the person’s statutory guardian.

The Certificate of Incapacity issued by anassessor operates indefinitely unless it ends inone of the circumstances described below.

The incapable person has the right to bereassessed at any time. The statutory guardianmay be called on to assist in this, but is onlyrequired to assist once every six months. Theassessor may confirm the previous finding ofincapacity or inform the Public Guardian andTrustee that the person is now capable. This endsthe statutory guardianship.

The person can appeal the finding of incapacityto the Consent and Capacity Board once everysix months. A hearing may not be held unless

there is an assessment or reassessment less thansix months old.

The statutory guardianship ends in the followingcircumstances:a court-appointed guardian of property is named;an assessor reassesses the person and notifies the

Public Guardian and Trustee that the personis capable of managing property;

the statutory guardian resigns (by notifying boththe incapable person and the Public Guardianand Trustee) and the Public Guardian andTrustee does not choose to take over asstatutory guardian;

the Consent and Capacity Board determines thatthe person is capable of managing propertyand the decision is not appealed within theallowable time;

a decision of the Consent and Capacity Board isappealed and the court determines that theperson is capable of managing property;

a court terminates the statutory guardianship atthe incapable person’s request;

the incapable person dies.

METHOD TWO: FOR INPATIENTS IN A

PSYCHIATRIC FACILITY

When a person is admitted to a psychiatricfacility a physician must examine the person todetermine if he or she is capable of managingproperty. The attending physician may alsoconduct an assessment at any other time duringthe admission.

The physician determining capacity to manageproperty must enter the finding and the reasonsfor it in the clinical record.

If the physician finds the patient incapable, aCertificate of Incapacity (Form 21 under theMental Health Act) is completed. This certificateis sent to the Public Guardian and Trustee whothen becomes the patient’s statutory guardian forproperty. A notice is also sent to the patient anda rights adviser. The person has the right tochallenge this finding of incapacity before theConsent and Capacity Board once in any six-month period.

(31)

As long as the admission continues, a physicianis free at any time to examine the patient andrevoke the statutory guardianship. A physician’sfinding of incapacity to manage property willend when the patient is discharged, unless:the attending physician has examined the

person’s capacity to manage property within21 days before discharge and found theperson incapable of managing property; and

a notice of continuance (Form 24 under theMental Health Act) was issued to the patientand the Public Guardian and Trustee beforethe patient’s discharge.

If a notice of continuance is signed beforedischarge, the statutory guardianship continuesindefinitely after the person is discharged fromthe hospital. It then becomes the same as astatutory guardianship created by an assessor.

When this occurs, the person has the same rightsfor reassessment and review by the Consent andCapacity Board as referred to above and thestatutory guardianship will come to an end in thesame circumstances. There is, however, oneimportant difference; the person may request areassessment from either a capacity assessor or aphysician who has the right to sign a Form 21 ina psychiatric facility.

RIGHTS AND POWERS OF THE STATUTORY

GUARDIAN

A statutory guardian has all the rights andpowers over the person’s property that the personwould, if capable, except for making a will forthe person.

REPLACING THE PUBLIC GUARDIAN AND

TRUSTEE AS STATUTORY GUARDIAN

If an incapable person has an attorney forproperty under a power of attorney signed beforethe finding of incapacity, the attorney canautomatically replace the Public Guardian andTrustee as the substitute decision-maker. To doso, the person must present a valid continuingpower of attorney for property to the PublicGuardian and Trustee and undertake in writing to

act according to it. The power of attorney mustgrant authority over all of the person’s property.

A trust company nominated by a spouse, or theincapable person’s spouse, partner or relativemay apply to the Public Guardian and Trustee totake over as statutory guardian. The PublicGuardian and Trustee may impose certainconditions on the transfer. (This option is alsoavailable to attorneys for property under a powerof attorney for property that does not grantauthority over all of the person’s property.)

COURT-APPOINTED GUARDIANSHIP

Anyone may apply to the Superior Court ofJustice to be named as a person’s guardian. Aguardianship order will only be considered ifincapacity is proven and the court is satisfied thatthere is no less restrictive way of dealing withthe person’s needs.

There are two types of court-appointedguardianships: guardianship for property andguardianship for personal care.

Not all guardianship orders are the same; thejudge may grant different powers depending onthe circumstances.

Depending on the exact wording of the order, acourt-appointed guardian of property may bepermitted to take all actions with regard to theperson’s property, except make a will.

Again depending on the wording of the order, acourt-appointed guardian for personal care mayhave authority in the areas of health care,nutrition, shelter, clothing, hygiene and safety.

The judge may make an order for fullguardianship for personal care, which gives wideauthority including custodial power over theperson, and authority to determine livingarrangements and provide for shelter and safety.

A paid care-giver may not be appointed as aguardian unless there is no other suitable personavailable.

(32)

The procedure to obtain a guardianship order isgenerally complex. Professional legal assistanceis highly recommended.

Guardians are required to follow strict rules ofconduct. These rules are outlined in theSubstitute Decisions Act. Anyone obtaining aguardianship order should become familiar withand follow these rules.

Part VI: The Consent andCapacity BoardSome of the terms used in this document aredefined in the definition section, which canbe found at page 35.

The Consent and Capacity Board hears anddecides cases under the Mental Health Act, theSubstitute Decisions Act, the Health CareConsent Act and the Long Term Care Act. It is anindependent tribunal affiliated with the Ministryof Health and Long-Term Care.

The Board has regional offices around theprovince. Each office is headed by a RegionalVice-Chair. Most hearings are held in hospitalsor nursing homes. A series of information sheetsdescribing the Board and its authority can beobtained by calling any regional office of theBoard or the Ministry of Health and Long-TermCare Infoline at (416) 327-4327 or 1-800-268-1153.

The board sits in panels of one, three or fivemembers. In cases involving an involuntarycommittal or an informal admission of a childbetween the ages of 12 and 15 the panel musthave at least one lawyer, one psychiatrist and onecommunity member.

JURISDICTION

Under the Mental Health Act the Board may:review involuntary status (Forms 16 and 17);review whether a young person (aged 12 to 15)

requires observation, care and treatment in apsychiatric facility (Form 25);

review a finding of incompetence to access orallow others to access a clinical record (Form31);

consider the appointment of a representative foraccess to, or disclosure of, records (Form41);

consider a request from a psychiatric facility towithhold access to a clinical record (Form29).

inquire into whether the criteria for issuing orrenewing a community treatment order aremet (Form 48)

(33)

Under the Mental Health Act and the SubstituteDecisions Act the Board may:review a finding of incapacity to manage

property (Form 18).

Under the Health Care Consent Act the Boardmay:review the capacity of a person to consent to his

or her own treatment, admission to a carefacility or a personal assistance service(Form A*);

consider the appointment of a representative tomake decisions for an incapable person abouttreatment, admission to a care facility or apersonal assistance service (Forms B* andC*);

consider a request to amend or terminate theappointment of a representative (Form H*);

review the decision of a substitute decision-maker to consent to the admission of anincapable person to a hospital or psychiatricfacility for the purpose of treatment (FormF*);

consider a request from a substitute decision-maker or health practitioner for directions tothe substitute decision-maker regarding priorcapable wishes (Form D*);

consider a request from a substitute decision-maker for authority to depart from priorcapable wishes (Form E*);

review a substitute decision-maker’s compliancewith the rules for substitute decision-making(Form G*).

(*See page 26 or 45)

Under the Long Term Care Act the Board may:review an application by a care facility to

withhold a resident’s personal record;consider an order directing a service provider to

give a resident access to his or her personalrecord.

PROCEDURE AT THE BOARD

The hearing must start within seven days afterthe day the Consent and Capacity Board receiveswritten notice of the request for the hearing. Thistime can be extended if agreed to by all parties.

The law automatically specifies who is a partybefore the Board for each type of hearing. TheBoard also has the authority to name additionalparties when appropriate. Anyone can attend ahearing and ask to be made a party.

All the parties before the Consent and CapacityBoard have the right to participate fully. Thisincludes the right, prior to the hearing, to reviewand copy documents to be used at the hearing,the right to attend the hearing, call evidence,cross-examine witnesses and make submissions.

Rights are somewhat more limited in the case ofa hearing to determine whether the facilityshould be given authority to withhold access toall or part of a person’s record. There is noappeal from a decision of the Board regardingaccess to records.

Within one day after the Consent and CapacityBoard completes a hearing, the Board must makea decision and inform all parties of that decision.Parties have 30 days from the day of the hearingto request written reasons for the decision. Oncea request has been received, reasons must bedelivered within two business days.

APPEAL RIGHTS

Decisions of the Consent and Capacity Boardmay be appealed by any party to the SuperiorCourt of Justice. An appeal must be commencedby Notice of Appeal within 7 days afterreceiving the Board's decision.

(34)

Appeals must be made under the rules of thecourt. There are no ready forms for appeals. Aparty wishing to appeal is responsible forpreparing and filing a Notice of Appeal with thelocal office of the court. Once an appeal is filedwith the court it must be served on the otherparties and a copy must be delivered to the officeof the Consent and Capacity Board so that theBoard can arrange to prepare a record andtranscript of the hearing. As the matter proceeds,each party will be required to prepare othermaterials that they will have to serve on the otherparties and file with the court in accordance withthe rules of the court.

Appeals may be made on questions of law or factor both. On an appeal, the Court can substituteits opinion for that of the Consent and CapacityBoard. The court can also send the matter backto the Board for a new hearing.

PART VII: OFFENCESAny person who contravenes any provision ofthe Mental Health Act or its regulations is guiltyof an offence punishable by a fine of not morethan $25,000.

Substitute decision-makers who:knowingly and wrongly misstate either their

authority to make the decision or thepatient’s prior capable wishes; or

knowingly make a substitute decision for aperson that is not in keeping with theperson’s prior capable wishes;

are guilty of an offence punishable by a fine ofup to $10,000.

Guardians or attorneys under the SubstituteDecisions Act may be subject to severe civil andcriminal penalties if they fail to comply with therules set for their conduct or take advantage oftheir position for personal gain or other improperpurposes.

The rules governing Ontario’s doctors, nursesand other health professionals state thattreatment without legally valid consent isprofessional misconduct.

(35)

PART VIII: DEFINITIONS

Many of the definitions listed below apply tomore that one Act.

UNDER THE MENTAL HEALTH ACT

Community Treatment Plan means a plandescribed in section 33.7 of the Mental HealthAct that is a required part of a communitytreatment order.

Health practitioner has the same meaning as inthe Health Care Consent Act.

Informal patient means a person who is apatient in a psychiatric facility having beenadmitted with the consent of another personunder section 24 of the Health Care Consent Act.

Involuntary patient means a person who isdetained in a psychiatric facility under acertificate of involuntary admission or acertificate of renewal.

Mental disorder means any disease or disabilityof the mind.

Officer in charge means the officer who isresponsible for the administration andmanagement of a psychiatric facility.

Ontario Review Board is the tribunal thatoversees the timing and conditions of the releaseof persons charged with a criminal offense butfound unfit to stand trial or not criminallyresponsible.

Patient means a person who is underobservation, care and treatment in a psychiatricfacility.

Physician means a legally qualified medicalpractitioner and when referring to a CTO, meansa legally qualified medical practitioner whomeets the qualifications prescribed in theregulations for the issuing or renewing of a CTO.

• Plan of Treatment has the same meaning asin the Health Care Consent Act, 1996.

• Psychiatric facility means a facility for theobservation, care and treatment of personssuffering from mental disorder, anddesignated as such by the Minister

• Rights adviser means a person or a memberof a category of persons qualified to performthe function of a rights adviser under theMental Health Act and designated by apsychiatric facility, the Minister or theRegulations to perform those functions butdoes not include:(a) a person involved in the direct clinical

care of the person to whom the rightsadvice is to be given; or

(b) a person providing treatment or careand supervision under a communitytreatment plan.

• Schedule 1 psychiatric facility means afacility named in the first list of psychiatricfacilities that appears in the regulations to theMental Health Act. This list includesprovincial psychiatric hospitals, specialtypsychiatric hospitals and many generalhospitals throughout the province (seePsychiatric facility).

• Voluntary patient is not defined in theMental Health Act but a common dictionarydefinition of voluntary is “having power offree choice.”

UNDER THE HEALTH CARE CONSENTACT

• Advance directives (see prior capablewishes).

• Community Treatment Plan has the samemeaning as in the Mental Health Act.

• Consent and Capacity Board means thetribunal that hears cases under the HealthCare Consent Act, the Substitute DecisionsAct and the Mental Health Act.

(36)

• Emergency means that a person isapparently experiencing severe suffering or isat risk of sustaining serious bodily harm iftreatment is not administered promptly.

• Evaluator means a member of the college ofaudiologists and speech-languagepathologists, certified social workers, nurses,occupational therapists or physicians andsurgeons.

• Health practitioner means a member of anyof Ontario’s regulated health professions.

• Living will is an unofficial name for anadvance directive or prior capable wishes(see below).

• Prior capable wishes means wishes givenby a person while capable that bind theperson’s substitute decision-maker after theperson becomes incapable. Prior capablewishes may be given orally, included in apower of attorney or some other writtendocument, or expressed in some othermanner.

UNDER THE SUBSTITUTE DECISIONS ACT

• Assessor means a person qualified to doassessments under the Substitute DecisionsAct. In order to qualify, a person mustcomplete a special course recognized by thePublic Guardian and Trustee and complywith certain other requirements. An assessormust be a member of the college ofphysicians and surgeons, psychologists,certified social workers, occupationaltherapists or nurses.

• Attorney for personal care means a personnamed in a power of attorney for personalcare to make personal care decisions onbehalf of another person in the event that theperson is incapable of making his or her owndecisions.

• Attorney for property means a personnamed in a power of attorney for property toact on behalf of another person with regard tothat person’s property.

• Guardian of the person means a personappointed by the court to make personal caredecisions on behalf of another person.

• Guardian of property means a personappointed by the court to act on behalf ofanother person with regard to that person’sproperty.

• Partner means two people who have livedtogether for at least one year and have a closepersonal relationship that is of primaryimportance in both persons’ lives.

• Power of attorney is a very powerful type oflegal document that one person can use togrant another person or persons authority tomake important decisions on his or herbehalf. There are powers of attorney forproperty and powers of attorney for personalcare.

• Statutory guardian means someoneappointed using a special legal process thatinvolves an assessment of a person’s capacityto manage property rather than a court order.A statutory guardian manages property onbehalf of the person who has been foundincapable of managing his or her ownproperty.

• Substitute decision-maker is a personauthorized to make decisions on behalf of anincapable person.

• Ulysses contract is the informal name of aspecial type of power of attorney for personalcare that allows things like forcedhospitalization for the purpose of treatment.

(37)

PART IX: Index of Forms

Note:The following forms are no longer in use under the Mental Health Act: 19, 20, 32, 34, 35, 37, 38,39, 43.

FORMS UNDER THE MENTAL HEALTH ACT

Form# Form Name

Section ofthe MHA Who Signs When Expiration

Date1 Application by

Physician forPsychiatricAssessment

15 Physician whohas examined theperson

Within seven days from andincluding the examination date

Seven daysfrom andincluding datesigned

2 Order forExamination

16 Justice of thePeace

No statutory time restriction Seven daysfrom andincluding theday it is signed

3 Certificate ofInvoluntaryAdmission

20(1)(c) Attendingphysician(different than thephysician whocompleted Form1)

Within 72 hours from start ofdetention period under a Form 1 orForm 13

Two weeksfrom andincluding thedate signed

19 Attendingphysician

At any time to change the status ofan informal or voluntary patient toinvoluntary

Two weeksfrom andincluding thedate signed

4 Certificate ofRenewal

20(4) Attendingphysician

Before expiry date of previousForm 3 or 4

1st Certificateof Renewal:one monthfrom expirydate ofprecedingForm 32nd Certificateof Renewal:two monthsfrom expirydate ofprecedingForm 43rd &subsequentCertificates ofRenewal:three monthsfrom expirydate ofpreceding

(38)

Form# Form Name

Section ofthe MHA Who Signs When Expiration

DateForm 4

5 Change fromInvoluntary toInformal orVoluntary Status

20(7) Attendingphysician (thephysician mustspecify thereasons for thechange of status)

Wherever deemed appropriate Not applicable

6 Order forAttendance forExamination

21(1) Judge When a person appears before ajudge charged with or convicted ofan offence

No statutorytime restriction

7 Confirmation ByAttending Physicianof ContinuedInvoluntary Status

48 (12) Attendingphysician

After an appeal to a court of a boarddecision is launched (refer tosubsection 48(12) for details)

Refer tosubsection48(12)

8 Order for Admission 22(1) Judge When a person in custody appearsbefore a judge charged with anoffence and the judge has reason tobelieve that the person suffers froma mental disorder.

No statutoryrestriction ontime withinwhich an ordermust beexecuted.Onceexecuted, itauthorizesdetention forup to twomonths.

9 Order for Return 28(1) Officer in chargeof psychiatricfacility

When the absence of a person whois subject to detention becomesknown to the officer in charge.

One monthafter absencebecame knownto officer incharge

10 Memorandum ofTransfer

29(1) Officer in chargeof psychiatricfacility

At any time, on advice of attendingphysician

No statutorytime restriction

11 Transfer to aPublic Hospital

30(1) Officer in chargeof psychiatricfacility

At any time when patient requireshospital treatment that cannot besupplied in the psychiatric facility

No statutorytimerestriction. Ifinvoluntarypatients aretransferred,detention issubject tolimitations oncertificates.

12 Warrant for Transferfrom Ontario toanother Jurisdiction

31 Minister ofHealth and Long-Term Care

No statutory time restriction No statutorytime restriction

13 Order to Admit a 32 Minister of No statutory time restriction No statutory

(39)

Form# Form Name

Section ofthe MHA Who Signs When Expiration

DatePerson Coming intoOntario

Health and Long-Term Care

restriction ontime withinwhich ordermust beexecuted

14 Consent to theDisclosure,Transmittal orExamination of aClinical Record

35 Patient or personauthorized toconsent (seesection 35(3))(This form is onlyrequired forclinical records ina psychiatricfacility.)

No statutory time restriction No statutorytime restriction

15 Statement byAttending Physician

35(6) Attendingphysician

When disclosure required by Courtor under an Act and certainconditions exist

No statutorytime restriction

16 Application to theConsent andCapacity Board toReview a Patient’sInvoluntary Status

39(1) Involuntarypatient or anyoneon his or herbehalf; Ministerof Health andLong-Term Care,Deputy Minister,officer in charge

Refer to s. 39(2) No statutorytime restriction

17 Notice to theConsent andCapacity Board ofthe Need toSchedule aMandatory Reviewof a Patient’sInvoluntary Status

39(4) Officer in chargeof psychiatricfacility

On completion of every fourthcertificate of renewal

Not applicable

18 Application to theBoard to Review aFinding ofIncapacity toManage Property

60 Patient oroutpatient

Any time after certificate ofincapacity or notice of continuanceis issued (once in any 6-monthperiod)

No statutorytime restriction

21 Certificate ofIncapacity toManage One’sProperty

54(4) Physician whoperforms theexaminationunder section54(1) or 54(2)with regard to aperson who is apatient in apsychiatricfacility under theMental HealthAct

No statutory time restriction On dischargefrom thepsychiatricfacility unlessa Form 24 issigned withintwenty-onedays beforedischarge

(40)

Form# Form Name

Section ofthe MHA Who Signs When Expiration

Date22 Financial Statement 55 Officer in charge As soon as possible after the Public

Trustee becomes the patient’sstatutory guardian

Not applicable

23 Notice ofCancellation ofCertificate ofIncapacity toManage One’sProperty

56 Physician whoperforms theexamination

No statutory time restriction No statutorytime restriction

24 Notice ofContinuance ofCertificate ofIncapacity toManage One’sProperty

57(2) Physician whoperforms theexamination

Within 21 days before the patient’sdischarge

Indefinite

25 Application to theConsent andCapacity Board toReview the Status ofan Informal Patientwho is a Childbetween 12 and 15Years of Age

13(1) Young personbetween 12 and15 years of ageinclusive

Right to apply once every 3 months No statutorytime restriction

26 Notice to the Boardof Need to Schedulea Mandatory Reviewof the Status of anInformal Patientwho is a Childbetween 12 and 15Years of Age

13(2) Officer in chargeof psychiatricfacility

Six months after admission as aninformal patient or the youngperson’s last Form 25 application

Not applicable

27 Notice by Officer inCharge to anInformal Patientbetween 12 and 15Years old

38(6) Officer in chargeof psychiatricfacility

Upon admission Not applicable

28 Request to Examineor to Copy ClinicalRecord

36(2)36(16)

Patient or personauthorized toconsent

No statutory time restriction No statutorytime restriction

29 Application to theBoard to WithholdAll or Part of theClinical Record

36(4) Officer in charge When the attending physicianadvises that disclosure of theclinical record to the patient islikely to result in serious harm tothe treatment or recovery of thepatient or serious physical oremotional harm to another person

This requestmust be madewithin sevendays after thepatient makesa writtenrequest toexamine orcopy his or herclinical record

30 Notice to Patient 38(1)) Attending When the patient is put on a Form 3 Not applicable

(41)

Form# Form Name

Section ofthe MHA Who Signs When Expiration

Datephysician (Involuntary admission) or a Form

4 (Renewal)31 Application to the

Board to Review aPatient’sCompetency toExamine /Disclose his or herClinical Record

36(14) Patient When a patient is determined to bementally incompetent to examine,copy or consent to the disclosure ofall or part of the clinical record

No statutorytime restriction

33 Notice to Patient 38(4)59(1)andSection15(1) of theregulations

Physician whomakesdetermination

When a physician determines that apatient is not mentally competent to(a) consent to treatment; (b)examine or authorize disclosure ofhis/her clinical record; or (c)manage his/her property

Not applicable

36 Notice under ss.36.1(4) of the Act ofRight to Appoint aRepresentative

36.1(4) Attendingphysician

Within 48 hours of admission to orregistration in a psychiatric facility

Not applicable

40 Notice to Patient ofRight to Apply for aRepresentative

36.2(2) Attendingphysician

As soon as possible after theattending physician’s determinationthat a patient is not mentallycompetent to appoint arepresentative to examine orauthorize disclosure of his or herclinical record

Not applicable

41 Application to theConsent andCapacity Board toAppoint aRepresentative

36.2(1) Patient When the patient is found notmentally competent to appoint arepresentative to examine orauthorize disclosure of his/herclinical record

No statutorytime restriction

42 Notice to Personunder ss 38.1 of theAct of Applicationfor PsychiatricAssessment under s.15 or an Order unders. 32 of the Act

38.1 Attendingphysician

Promptly when a person is detainedat a psychiatric facility for thepurpose of an assessment under aForm 1 or a Form 13

Not applicable

44 Appointment of aRepresentative

36.1 Person appointingrepresentative

No statutory time restriction The personwho made theappointmentmay revoke itor the personmay appoint anewrepresentative

45 CommunityTreatment Order

33.1 Physicianqualified to issueor renew a

No statutory time restriction.Examination within 72 hours asprecondition for issuing CTO

Up to 6months

(42)

Form# Form Name

Section ofthe MHA Who Signs When Expiration

Datecommunitytreatment order

46 Notice to Person ofIssuance or Renewalof CommunityTreatment Order

33.1(10) Physician Completed by a physician whoissues or renews a CTO at the timethe CTO is issued or renewed

47 Order forExamination

33.3 (1)33.4 (3)

Physician whoissued or renewedthe communitytreatment order

Authority for 30 days after issue fora police officer to take the personnamed in it into custody and thenpromptly to a physician

30 days

48 Application to Boardto ReviewCommunityTreatment Order andNotice to Board byPhysician of Need toSchedule MandatoryReview ofCommunityTreatment Order

39.1(1)39.1(4)

Part 1: By personsubject to CTO oranother person onhis/her behalfPart 2: Byphysician

Part 1: After CTO is issuedPart 2: Every time a CTO isrenewed for the second time and onthe occasion of every secondrenewal thereafter

49 Notice of Intentionto Issue or RenewCommunityTreatment Order

33.1 (4)33.1(8)14.3 (1) ofO.Reg. 741

Physician whointends to issue orrenew a CTO

Before the CTO is issued

50 Confirmation ofRights Advice

14.3 (5)16 (2) ofO.Reg. 74

Rights Advisor After rights advice has been given

(43)

FORMS UNDER THE HEALTH CARE CONSENT ACT*Formletter Form Name

Section ofthe HCCA Who Signs When

A Application to theBoard to Review aFinding ofIncapacity

32(1)50(1)65(1)

Person determined tobe incapable

When a finding is made that a person isincapable of making decisions with respect totreatment, admission to a care facility orpersonal assistance services in a nursing homeor home for the aged

B Application to theBoard to Appointa Representative

33(1)51(1)66(1)

Person determined tobe incapable

When a finding is made that a person isincapable of making decisions with respect totreatment, admission to a care facility orpersonal assistance services in a nursing homeor home for the aged

C Application to theBoard to Appointa Representative

33(2)51(2)66(2)

Anyone who is at least16 years of age andwishes to be appointedas the representativefor a person who hasbeen determined to beincapable

When a finding is made that a person isincapable of making decisions with respect totreatment, admission to a care facility orpersonal assistance services in a nursing homeor home for the aged

D Application to theBoard forDirections

35(1)52(1)67(1)

Substitute decision-maker or health carepractitioner

The substitute decision-maker or health carepractitioner requests assistance because a priorwish of the incapable person is not clear or itis not clear if the wish:• was expressed when the person was

capable and at least 16 years old, or• is applicable in the circumstances.

E Application to theBoard forPermission toDepart fromWishes

36(1)53(1)68(1)

Substitute decision-maker or health carepractitioner

When the prior capable wishes require thesubstitute decision-maker to refuse treatment,admission or personal assistance services(The application may only be granted if theBoard finds that the incapable person, ifcapable, would probably consent because thelikely result is significantly better than wouldhave been anticipated in comparablecircumstances at the time the wish wasexpressed.)

F Application to theBoard for Reviewof Someone Else’sDecision toConsent toAdmission for thePurpose ofTreatment

34(1) Patient When a health practitioner has made a findingof incapacity to consent to treatment and thesubstitute decision-maker has consented to theadmission

G Application to theBoard to ReviewCompliance withRules forSubstituteDecision-Making

37(1)(treatment)

Health practitionerwho proposed thetreatment

When the applicant is of the opinion that thesubstitute decision-maker has given or refusedconsent in a manner that violates the rules forsubstitute decisions found in the Act

(44)

Formletter Form Name

Section ofthe HCCA Who Signs When

G (cont'd) 54(1)(admission toa nursinghome orhome for theaged)

Official of theCommunity CareAccess Centreresponsible forauthorizing theadmission

When the applicant is of the opinion that thesubstitute decision-maker has given or refusedconsent in a manner that violates the rules forsubstitute decisions found in the Act

G (cont'd) 69(1)(personalassistanceservices in anursing homeor home forthe aged)

Member of the serviceproviders staffresponsible for thepersonal assistanceservice

When the applicant is of the opinion that thesubstitute decision-maker has given or refusedconsent in a manner that violates the rules forsubstitute decisions found in the Act

H Application toAmend theConditions of theAppointment of aRepresentative

33(7)51(6)66(6)

Any person At any time after the Board has appointed arepresentative to make decisions on behalf ofan incapable person with respect to treatment,admission to a care facility or personalassistance services in a nursing home or homefor the aged

OrApplication toTerminate theAppointment of aRepresentative

33(8)51(6)66(6)

(*Whenever an application of this kind is submitted the law provides that the patient/client is deemed tohave applied for a review of his or her capacity to make the relevant decision. This does not apply if theboard has determined the issue of capacity within the previous six months.)

(45)

FORMS UNDER THE SUBSTITUTE DECISIONS ACT

Form #Form Name

Section ofthe SDA Who Signs When

1 Application toReplace the PublicGuardian andTrustee as StatutoryGuardian

17(1) Person wishing tobecome thestatutory guardian

At any time after a statutory guardianship iscreated

2 Management Plan 17(3)70 (1)(b)

Person wishing tobecome thestatutory guardianor court-appointedguardian ofproperty

When making an application to replace thePublic Guardian and Trustee as statutoryguardian (Form 1) or an application to thecourt to be named as the guardian of propertyfor an incapable person or at any other timewhen a management plan for property isrequired

3 Guardianship Plan 70(2)(b) Proposed guardianfor personal care

When making an application to the court tobe named as guardian of the person for anincapable person or at any other time when amanagement plan for personal care isrequired

4 Request forAssessment ofCapacity

16(1) Any person At any time when the applicant has reason tobelieve that a person may be incapable ofmanaging property. Prior to signing, theapplicant must make reasonable inquiries andsatisfy him- or herself that no spouse, partneror relative intends to apply to the court forthe appointment of a guardian of propertyand that there is no continuing power ofattorney that gives the attorney authorityover all of the person’s property.

5 Statement RequiredUnder Paragraph 1of Section 50(1) ofthe Act

50(1) Person making apower of attorneyfor personal careunder section 50of the Act(Ulysses Contract)

At the time that the power of attorney forpersonal care under section 50 of the Act (aUlysses Contract) is executed or within 30days afterwards

6 Optional Statementto Appoint aGuardian of thePerson

71(1) A person makingapplication to thecourt for theappointment of aguardian of theperson

At the time that the application to appoint aguardian of the person is made to the court

7 Optional Statementto TerminateGuardianship of thePerson

71(2) Person asking thecourt to terminateguardianship ofthe person

At the time that the motion to terminate theguardianship of the person is made to thecourt

(46)

Form #Form Name

Section ofthe SDA Who Signs When

8 Statement of aperson who is notan Assessor underSection 72 of theSubstituteDecisions Act

72 Person who knowsthe person allegedto be incapableand has been inpersonal contactwith him or herduring the lasttwelve months

At the time that an application to the court ismade by way of summary disposition for theappointment of a guardian of property(Summary disposition means that the judgeis asked to decide the matter based on theinformation in the court file instead ofholding a session in open court.)

9 Statement of aPerson who is notan Assessor underSection 73 of theSubstituteDecisions Act

73 Person who knowsthe person whoseproperty is underguardianship andhas been inpersonal contactwith him or herduring the lasttwelve months

At the time that a motion is brought beforethe court to terminate a guardianship ofproperty

18sda

Application to theBoard for a Reviewof a Finding ofIncapacity toManage Property

20.2(1) Person found to beincapable ofmanaging propertyand who understatutoryguardianship

At any time.An application may only be made oncewithin a six-month period.A reassessment may be required prior toapplication being made.

Brian's Law permits the Minister of Health and Long-Term Care to approve forms for the purposes of Brian's Law, whichamended the Mental Health Act and the Health Care Consent Act, 1996. Brian's Law was proclaimed on December 1st, 2000.