Authority

Authority
Although advocacy services are not mandated by legislation, the Minister of Health has given the PPAO the authority to carry out its advocacy function under the Mental Health Act.

According to subsection 9(1) of the Act, "The Minister of Health may designate officers or appoint persons who shall advise and assist medical officers of health, local boards of health, hospitals, and other bodies and persons in all matters pertaining to mental health and who shall have such other duties as are assigned to them by this Act or the regulations." The PPAO's director, program manager, legal counsel, systemic policy adviser, and patient advocates have such designations.

Subsection 9(2) of the Act gives authority for "Any such officer or person may at any time, and shall be permitted so to do by the authorities thereat, visit and inspect any psychiatric facility, and in so doing may interview patients, examine books, records, and other documents relating to patients, examine the condition of the psychiatric facility and its equipment, and inquire into the adequacy of its staff, the range of services provided and any other matter he or she considers relevant to the maintenance of standards of patient care."

PPAO staff also have been designated by the Minister of Health to perform the functions of a rights adviser under subsection 14(1) of Regulation 741 to the MHA. The Minister is required to designate one or more such persons or categories of persons to act in this capacity in Schedule 5 facilities (the PPHs) in Ontario. The functions of rights advisers are set out in the Act. Their qualifications are set out in the regulations.

Mental Health Act & Regulation 741
Relevant sections of the Mental Health Act and Regulation 741 with respect to patient advocates and rights advisers.

Mental Health Act - Authority of Patient Advocates
Section 9 of the Mental Health Act says in part:

1. The Minister may designate [individuals] ... or appoint persons who shall advise and assist ... in all matters pertaining to mental health, and who shall have such other duties as are assigned to them by this Act or the regulations.
   
   Explanation: The Minister has designated the PPAO's director, legal counsel, systemic policy adviser, and patient advocates for this purpose under this section.
   
   
2. Any officer or person may at any time, and shall be permitted so to do by the authorities thereat, visit and inspect any psychiatric facility, and in so doing may interview patients, examine books, records and other documents relating to patients, examine the condition of the psychiatric facility and its equipment and inquire into the adequacy of its staff, the range of services provided and any other matter he or she considers relevant to the maintenance of standards of patient care.

Definition of Rights Adviser
Section 1 of the Mental Health Act says in part: "Rights adviser" means a person, or member of a category of persons, qualified to perform the functions of a rights adviser under this Act and designated by a psychiatric facility, the Minister or by the regulations to perform those functions, but does not include, (a) a person involved in the direct clinical care of the patient to whom the rights advice is to be given, or (b) a person providing treatment or care and supervision under a community treatment plan.

Regulation 741

Designation of Rights Advisers
The Minister of Health and Long-Term Care must designate a rights adviser for each psychiatric facility designated as an institution under the Mental Hospitals Act (current and former provincial psychiatric hospitals). The Minister must also designate a rights adviser to provide rights advice to individuals in the community who are being considered for the issuance or renewal of a community treatment order. [Sections 14 and 14.1].

A psychiatric facility that is not an institution under the Mental Hospitals Act must designate rights advisers to work in the facility. These hospitals may designate the same persons as the Minister (PPAO).

Qualifications of Rights Advisers
Only people who meet certain qualifications can be designated as rights advisers. Section 14.2 of the Regulations says that before a person may be designated as a rights adviser:

1. The person must be knowledgeable about the rights to apply to the Board provided under the Act and the Health Care Consent Act, 1996;
2. The person must be knowledgeable about the workings of the Board, how to contact the Board and how to make applications to the Board;
3. The person must be knowledgeable about how to obtain legal services;
4. The person must have the communications skills necessary to perform effectively the functions of a rights adviser under the Act; and
5. The person must have successfully completed a training course for rights advisers approved by the Minister and have been certified as having completed such a course.

Delivery of Rights Advice
A rights adviser must meet with a person "promptly" after receiving notification that the person requires rights advice. [Sections 38(3), 38(5), 38(7), 59(2); Regulation 15(2)]

A rights adviser need not "meet" with a person when giving rights advice relating to a proposed community treatment order. Rights advice relating to community treatment orders must be provided "promptly". [Section 14.3(2)]

Explanation by Rights Advisers
A rights adviser fulfils his or her obligation to explain a matter to a person, if the rights adviser explains the matter to the best of his or her ability and in a manner that addresses the person's special needs, even if the person does not understand the explanation. (Section 16(1)).

Second Rights Adviser - Community Treatment Orders
Where a rights adviser believes that it is in the best interest of the person to receive rights advice from another rights adviser, he or she shall ensure that a second rights adviser provides such advice. [Section 14.3 (4)]

Confirmation of Rights Advice
Where a rights adviser is required to explain a matter to a person, he or she must provide confirmation that the explanation has been given to the attending physician or the officer in charge, as the case may be, in the approved form. [Sections 14.3(5); 16(2)]