Rights under Mental Health Law - Rights Guides - Psychiatric Patient Advocate Office

Rights Under Mental Health Law

NOTE: The Personal Health Information Protection Act will become law on November 1, 2004. Please note that the content of this Guide relating to Clinical Records will change as a result. A revised Guide will be posted after November 1, 2004.

Patients' Rights under Mental Health Law in Ontario
A Rights Guide for Patients In Ontario Psychiatric Facilities

Disclaimer:This guide is intended for use as general information and is prepared for purposes of convenience only. It is not to be relied upon as legal advice or legal authority. If you have inquiries as to legal proceedings, or if you would like more detailed information regarding legislation, you should consult a lawyer.

What is this guide about?

This guide provides a summary of patients' rights under mental health law in Ontario.
In this guide MHA refers to sections found in the Mental Health Act. HCCA refers to sections in the Health Care Consent Act. Board refers to the Consent and Capacity Board. SDM refers to the Substitute Decision-Maker.
In this guide the word "doctor" has been used in place of "health practitioner". However, in some cases, decisions may be made by other health practitioners including psychologists, occupational therapists and nurses.

Introduction:

Under Section 6 of the Mental Health Act it is provided that:

"Nothing in this Act shall be deemed to affect the rights and privileges of any person except as specifically set out in this Act."

This means that if you are a patient of a psychiatric facility, you have the same rights you have when you are not in hospital unless the law specifically takes that right away.
It is the mandate of the Psychiatric Patient Advocate Office (PPAO) to uphold the rights and privileges of patients in the 10 current and former provincial psychiatric hospitals. These rights and privileges, cross referenced to the Act, are outlined below.

Form 1 (application by doctor for psychiatric assessment)

A Form 1 is also referred to as an APA (Application for Psychiatric Assessment). The Form 1 allows a doctor to hold you in a hospital for up to 72 hours to complete a psychiatric assessment. This assessment is to determine whether you require the care and supervision that a psychiatric hospital can provide.
To be placed on a Form 1, a person must have been examined by a doctor. The doctor places a person on a Form 1 because of concerns that the person is in danger of causing harm to him or her self or herself or others.
The doctor who examined the person must sign the Form 1 within seven days of the examination. Section 15(4) MHA
A person, who is on a Form 1 and who is taken to a psychiatric facility, can be detained, restrained, observed and examined in the facility for a maximum of 72 hours. Section 15(5)(b) MHA
A person, who is on a Form 1, has the right to receive a written notice that he or she has been placed on a Form 1. For this notice, the doctors fills out a Form 42. Section 38.1(1) MHA
A person, who is on a Form 1, has the right to know why he/she is being detained and, has the right to be informed of his/her right to retain and instruct legal counsel. Under the law, a Rights Adviser is not required to visit. It is the doctor's responsibility to provide this information. Section 38.1 MHA
A person, who is on a Form 1 and who is admitted to a psychiatric facility, may be:
- released from the psychiatric facility if the attending doctor is of the opinion that the person is not in need of the treatment provided in the psychiatric facility; Section 20 (1)(a) MHA OR
- admitted as an informal or voluntary patient if the person is in need of the treatment provided in the facility and is suitable for admission as an informal or voluntary patient; Section 20 (1)(b) MHA OR
- admitted to a psychiatric facility as an involuntary patient only if the attending doctor (different than the doctor who signed the Form 1) is of the opinion that the person meets the criteria for admission as an involuntary patient. Section 20 (1)(c) MHA

Informal Patient (ages 12 to 15 inclusive)

An informal patient has the right to receive written notification (Form 27) from the officer in charge of the facility of the right to apply for a hearing before the Board. Section 38(6) MHA
An informal patient has the right to receive rights advice from a Rights Adviser. Section 38(6) MHA
The Rights Adviser shall promptly meet with the informal patient and provide rights advice. Section 38(7) MHA
An informal patient has the right to apply for a Board hearing once in each three-month period. Section 13(1) MHA
An informal patient has the right to a deemed Board hearing six months from the date of admission or the date of the last Board application, whichever is later. Section 13(2) MHA
An informal patient has the right to ask for and receive assistance from the Rights Adviser in making an application to the Board and in obtaining legal counsel. Section 38(9) MHA

Involuntary Status (Form 3: Certificate of Involuntary Admission; and Form 4: Certificate of Renewal of Involuntary Admission)

To be placed on a Form 3 or Form 4, a patient must be examined by a doctor before being placed on either Form. Section 20(1) MHA
The doctor who signed Form 1 cannot sign Form 3.
A patient, who is on a Form 3 or 4, has the right:
- to be informed of being placed on the Form and the reasons for the doctor's decision. The doctor completes and gives to the patient a Form 30. Section 38(1) (2) MHA
- to receive rights advice from a designated Rights Adviser. The Rights Adviser must promptly meet with the patient and provide rights advice. Section 38(3) MHA
- to receive assistance from the Rights Adviser in making an application to the Board and in obtaining legal counsel. Section 38(9) MHA
- to make an application to the Board once each time Form 3 or Form 4 is completed by the doctor. Section 39(1) (2) MHA
- to an automatic Consent and Capacity Board hearing on each fourth Form 4 completed by doctor. Section 39(4) MHA

Restraint and Detention

An informal or a voluntary patient has the right not to be detained or restrained. Section 14 MHA
If a patient is restrained, the facility must document the following as required by law : Section 53(1) MHA
If a patient is restrained, it must only be for the purpose of control to prevent serious bodily harm to the patient or another person (for example, a co-patient, staff, or visitor). Section 1(1) MHA
Under the definition of restraint, a patient who is placed under restraint has the right to have the minimum amount of force, mechanical means or chemicals used to accomplish the restraint considering what is reasonable having regard to his/her mental and physical condition. Section 1(1) MHA

Treatment

A patient in any psychiatric hospital has the right to receive observation, care and treatment. Section 1(1) MHA
An outpatient of a psychiatric hospital has the right to receive observation and/or treatment. Section 1(1) MHA
Where a treatment cannot be provided in a psychiatric facility, the patient has the right to be transferred to a public hospital for treatment. Section 30(1) MHA

Consent

A patient who is capable under the law of consenting to treatment has the right to make his/her own treatment decisions. Section 10(1)(a) HCCA
A patient who is incapable of consenting to treatment has the right to be treated only with the consent of the patient's SDM. Section 10(1)(b) HCCA
An incapable patient may be treated without the consent of a SDM in the event of a medical (is the use of this word accurate?) emergency. Section 25(2) HCCA
A capable patient may not be treated in an emergency without his/her consent except as specified in the Act WHAT DOES THIS MEAN?. Section 25(3) HCCA
A person who is at least 16 years of age and capable of making treatment decisions has the right to make his or her wishes known regarding treatment in the event that he/she becomes incapable in the future. Section 5 HCCA
If a person makes a wish regarding treatment, he/she has the right to expect that the SDM will be bound by that wish when considering whether to consent to a proposed treatment, unless the Consent and Capacity Board determines otherwise. Section 21 HCCA
A patient (or SDM) has the right to withdraw consent to a treatment at any time. Section 14 HCCA
A patient (or SDM) has the right to make an informed decision about treatment. They are entitled to receive information that a reasonable person in like circumstances would require about the nature of the treatment, expected benefits, material risks, material side effects, alternative courses of action, and likely consequences of not having treatment. They are also entitled to have any questions answered. Section 11(2) HCCA
If a SDM is making a treatment decision, the patient has the right to have the decision made according to the principles set out in the Act. The SDM must be governed by the patient's prior wishes made when he/she was capable, if known. If no wishes are known, the SDM must act in the person's best interests. (Section 21) HCCA

Incapacity to Consent to Treatment

If a person is found by a doctor to be incapable of consenting to treatment, he/she has the right to receive information from the doctor who made the finding of incapacity about the consequences of the finding, the ability to challenge the decision, and accessing legal counsel. Section 17 HCCA
If the incapable person is over the age of 14 and a patient in a psychiatric facility, the person has the right to receive a written notification (Form 33) of the doctor's finding if the treatment proposed is for a mental disorder. Section 15(1); Regulation 741 MHA
If the treatment is regarding a mental disorder, a patient has the right to receive rights advice from a designated Rights Adviser. The Rights Adviser must promptly meet with the patient and provide rights advice. Section 15(2); Regulation 741 MHA
A patient has the right to receive assistance from the Rights Adviser in making an application to the Consent and Capacity Board and in obtaining legal counsel. Section 15(4) Regulation 741 MHA
Except as specified in Section 32(2) HCCA, a patient has the right to apply to the Board for a hearing to review the finding of incapacity by the doctor. Section 32 HCCA
A patient may make one application in each six-month period. If the patient wishes to apply before the six-month period has expired, he/she has the right to apply to the Board for permission to make the application. Section 32(5) HCCA
If the doctor is proposing a treatment and has found the patient incapable with respect to the treatment, the treatment should not begin if the patient has applied or intends to apply to the Board for:
- a review of the finding of incapacity. Section 18 HCCA
- for appointment of a representative to give or refuse consent to the treatment on his/her behalf. Section 18(2) HCCA
The treatment also must not begin, if another person has applied or intends to apply to the Board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his/her behalf. Section 18(2) HCCA
If the doctor is proposing a treatment and finds the patient incapable with respect to the treatment, the treatment must not begin:
Section 18(3) HCCA
- until 48 hours have passed since the doctor was first informed of the intended application to the Board and no application has been made;
- until the application to the Board has been withdrawn;
- until the Board has made a decision in the matter, and none of the parties to the application has informed the doctor that he/she intends to appeal the Board's decision; or
- if a party to the application before the Board has informed the doctor that he/she intends to appeal the Board's decision to the Court
- until the period for commencing the appeal has elapsed without an appeal being commenced, or
- until the appeal of the Board's decision has been finally disposed of.
An incapable person who is at least 16 years of age has the right to apply to the Board for the appointment of a representative to make treatment decisions on his/her behalf. Section 33(1) HCCA
If another person applies to the Board to be appointed a person's representative with respect to treatment, the incapable person has the right to attend and take part in the hearing. Section 33(4) HCCA
If the incapable person does not object, the Board may appoint a representative and impose conditions and limitations on the representative. Section 33(5)(6)(7) HCCA

Community Treatment Orders (CTOs)

A CTO must include a community treatment plan: a plan of treatment or care and supervision in the community that is developed by the doctor who intends to issue the CTO, the person (or their SDM, if any) and any other person involved in the treatment or care and supervision of the person. Section 33.1(4)(b) MHA
A community treatment plan is a form of treatment under the HCCA and, as such, the person (or SDM) must provide informed consent before entering into a CTO. Consent for the community treatment plan may be withdrawn at any time. Section 33.1(4)(c) MHA
A person may be placed on a CTO if, during the previous 3 years, the person has been a patient in a psychiatric facility on two or more occasions OR for a total of 30 days or more OR the person has previously been on a CTO. Section 33.1(4)(a) MHA
A person being considered for a CTO has the right to be examined by the issuing doctor within 72 hours before entering into the community treatment plan and the doctor must determine whether all the criteria for a CTO are met. Section 33.1(4)(c) MHA
A person being considered for the issuance or renewal of a CTO and their SDM, if any, has the right to receive notice of the intention to issue or renew the CTO (Form 49) and to promptly receive rights advice from a Rights Adviser. Section 14.3 of Regulation 741 MHA
The person being considered for the CTO can refuse rights advice if capable providing his or her own consent. The SDM cannot refuse receiving rights advice.
A person being considered for the issuance or renewal of a CTO or who is subject to a CTO and their SDM, if any, has the right to retain and instruct counsel and be informed of that right. Section 33.1(8) MHA
A person subject to the CTO and their SDM, if any, has the right to receive a copy of the CTO (Form 45) once it is issued. Section 33.1(10)(a) MHA
A person who is subject to a CTO, or any other person on their behalf, can apply to the Board once each time a CTO is issued or renewed. The Board will look at whether the criteria for issuing the CTO were met. Section 39.1 MHA
There is a mandatory hearing at the Board on every second renewal of a CTO. Section 39.1(3) MHA
A CTO lasts up to six months, and may be renewed up to one month after it expires. Section 33.1(11) (12) MHA
A person subject to a CTO or their SDM, if any, can request that the doctor review the necessity of being on a CTO at any time. Section 33.2(1) MHA
A person subject to a CTO or their SDM, if any, may withdraw consent to the community treatment plan at any time, with notice to the issuing doctor. The doctor must then examine the person within 72 hours to determine whether the person is able to live in the community without the CTO. Section 33.4(1) MHA
If the issuing doctor has reasonable cause to believe that a person on a CTO is not complying with the community treatment plan, the doctor must make reasonable efforts to locate the person. The doctor must explain what will happen if the person does not comply, and assist the person to comply. Section 33.3(2) MHA
If the doctor still has reasonable cause to believe that a person is not complying with the CTO, the doctor can issue an "Order for Examination" (Form 47), which gives the police the authority for up to 30 days to locate the person, take him/her into custody, and return him/her to the issuing doctor. At that time, the doctor will decide whether to release the person without a CTO, issue a new CTO, or admit the person to hospital. Section 33.3 MHA

Written Communication

A patient has the right to send and receive written communications (e.g., letters) without interference except when the officer in charge has reasonable and probable cause to believe that:
- the contents of a communication written by a patient would be unreasonably offensive to the addressee, or prejudice the best interests of the patient; or
- the contents of a communication sent to a patient would interfere with the patient's treatment, or cause the patient unnecessary distress. Section 26 MHA
The written communication must not be opened, examined, or withheld or be delayed in delivery. Section 26(1) MHA
If restrictions are placed upon the written communication sent by a patient, the restriction does not apply to communications to a solicitor, a member of the Board, or a member of the Provincial Parliament. Section 26(3) MHA

Clinical Record

A competent patient has the right to examine and copy (at his/her own expense) the clinical record (Form 28) unless the Board has made an order withholding all or part of that record. Section 36 MHA
The patient's doctor has the authority to determine whether the patient is competent to examine or disclose his or her clinical record. "Mentally competent" means having the ability to understand the subject matter in respect of which consent is requested and ability to appreciate the consequences of giving or withholding consent. Section 1(1) MHA
The officer in charge of the psychiatric facility may apply to the Consent and Capacity Board to withhold all or part of the patient's clinical record (Form 29). The patient has the right:
- to receive a notice in writing of this application and the reason for it. Section 36(5) MHA
- to make submissions to the Board before it makes its decision. Section 36(7) MHA
- to ask that the Board hear the patient's submissions in the absence of the doctor. Section 36(9) MHA
If a patient is allowed to examine or copy the clinical record, the patient has the right to:
- request correction of information where the patient believes there is an error or omission
- attach a statement of disagreement
- require that the facility send a notice of amendment or the statement of disagreement to anyone who has received a copy of the record within one year before the amendment or statement of disagreement. Section 36(13) MHA
If a patient is determined by a doctor to be incompetent to examine or copy his/her clinical record or to consent to its disclosure to other persons, the patient has the right:
- to receive a written notice of the doctor's determination. Section 38(4) MHA
- to apply to the Board for a hearing to review the doctor's determination. Section 36(14) MHA
- to receive rights advice from a designated Rights Adviser. The Rights Adviser shall promptly meet with the patient and provide rights advice. Section 38(4) MHA
- to receive assistance from the Rights Adviser in making an application to the Board and in obtaining legal counsel. Section 38(9) MHA

Appointing a Representative to Access the Clinical Record

Within 48 hours of admission to a psychiatric facility, a patient must be notified in writing of the right to appoint a representative who would make decisions for him/her regarding access to clinical records in the event that he/she is determined incompetent to make decisions regarding access to his/her clinical record (Form 36). Section 36.1(4) MHA
A patient has the right to make or revoke such an appointment if he/she is over the age of sixteen years and is mentally competent to do so. Section 36.1(1) MHA
If a doctor determines that a patient is not mentally competent to appoint a representative, he/she has the right to be notified by the doctor of the right to apply to the Board for the appointment of a representative. The patient has the right to receive a written notice (Form 40) setting out the powers of the representative. Section 36.2(2) MHA
A patient who is at least 16 years of age and is not competent to appoint a representative has the right to apply to the Board to make the appointment. Section 36.2(1) MHA
If the Board proposes to appoint a person not named in the patient's application, the person will not be appointed unless the patient approves. Section 36.2(5) MHA
The patient has the right to approve any conditions or restrictions which the Board wishes to include in the order appointing the representative. Section 36.2(6) MHA

Incapacity to Manage Property

A patient who is 18 years or older and does not have a court-appointed guardian, a statutory guardian, or a continuing power of attorney for property, who is admitted to a psychiatric facility has the right to be examined to see if he/she is capable of managing his/her property. Section 54 MHA
A patient who has not been found to be incapable of managing property has the right to control and manage his/her property. Section 54 MHA
If a doctor finds that a patient is incapable of managing property (Form 21), the patient has the right:
- to receive written notification of the doctor's finding (Form 33). Section 59 MHA
- to receive rights advice from a designated Rights Adviser. The Rights Adviser shall promptly meet with the patient and provide rights advice. Section 59(2) MHA
- to receive assistance from the Rights Adviser in making an application to the Board and in obtaining legal counsel. Section 59(4) MHA
- to apply to the Board for a hearing reviewing the doctor's finding. The patient is entitled to one hearing in each six-month period. Section 60 MHA
- to be examined by the doctor within 21 days before being discharged from the facility. If the patient is capable, the patient has the right to regain control of his/her property. If the patient remains incapable, a Notice of Continuance (Form 24) may be signed continuing the statutory Guardianship after discharge. Section 57 MHA
A patient who is placed on a Notice of Continuance with respect to incapacity to manage property, has the right:
- to receive written notification of the doctor's finding (Form 33). Section 59 MHA
- to receive rights advice from a designated Rights Adviser. The Rights Adviser shall promptly meet with the patient and provide rights advice. Section 59(2) MHA
- to receive assistance from the Rights Adviser in making an application to the Board and in obtaining legal counsel. Section 59(4) MHA
- to apply for a Board hearing. The person is entitled to one hearing in each six-month period. Section 60 MHA

Consent and Capacity Board (all applications)

If the Board is reviewing a Form 3 or 4, an application from an informal patient (age 12-15) or a CTO, the Board will be composed of three or five persons including, a lawyer, a psychiatrist and a member of the public at large. For all other applications, the Board may be composed of one person. Section 39(5.1) MHA; Section 73(1) HCCA
The patient has the right:
- to have the application heard by the Board within 7 days after the Board receives the application (is this correct?) unless the parties have agreed otherwise. Section 75(2) HCCA
- to represent himself or herself at the hearing. The patient has the right to retain legal counsel to represent him/her or may have another person represent him/her. Section??
- to examine information upon which the doctor will rely at the Board hearing. Section 76 HCCA
- to receive a copy of the Board's decision within one day after the hearing concludes. Section 75(3) HCCA
- to request written reasons of the Board's decision. The written reasons may be requested up to 30 days after the hearing. If requested, the Board must issue written reasons within 2 business days after the request. Section 75(4) HCCA
- to appeal the decision of the Board except in the case of an order that all or part of a clinical record be withheld. The appeal is to the Superior Court of Justice and the Notice of Appeal must be served and filed within 7 days after receipt of the Board's decision. Section 80 HCCA.

List of other Rights Guides Available

Making an Informed Decision About Your Treatment
Incapable to Manage Property
Restraints
Incapable to Make Treatment Decisions
Complaints Against a Health Care Professional
An Advocacy and Rights Protection Program

Learning more about your rights:

This guide provides some general information about your rights. It is not a substitute for reading the law itself, or talking to a lawyer.

If you are in a current or former provincial psychiatric hospital, there is a Patient Advocate who can help you. The Patient Advocate is independent of the hospital and can help you exercise your rights. The Patient Advocate can bring your concerns to the attention of the doctor or contact a lawyer for you.

Staff must contact the Patient Advocate on your request. If you are in another psychiatric facility, there is a Rights Adviser, a patient representative, or a patient relations officer who can help you.

For help or further information, contact:

Written and published by the Psychiatric Patient Advocate Office (April 2003)
www.ppao.gov.on.ca
1(800)578-2343