A Practical Guide to Mental Health and the Law in Ontario

A Practical Guide to Mental Health and the Law in Ontario

Revised Edition, September 2016

Disclaimer

This Toolkit was prepared by Borden Ladner Gervais LLP for the ownership and use of the Ontario Hospital Association (OHA). This Toolkit is intended to provide health care providers with a general understanding of mental health law issues and with an overview of the legislation that governs the provision of mental health care in Ontario. It is also written from the perspective of legal counsel who regularly assist health care providers and institutions in mental health law matters. The materials in this Toolkit are for general information. The Toolkit reflects the interpretations and recommendations regarded as valid at the time that it was published based on available information. The Toolkit is not intended as, nor should it be construed as, legal or professional advice or opinion. Hospitals concerned about the applicability of mental health legislation to their activities are advised to seek legal or professional advice. The OHA will not be held responsible or liable for any harm, damage, or other losses resulting from reliance of the use or misuse of the general information contained in this Toolkit. This Toolkit is published for OHA members. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the personal use of OHA members, without prior written permission of the OHA. Copyright ? 2016 by Ontario Hospital Association. All rights reserved. ISBN: 978-0-88621-363-3

I A Practical Guide to Mental Health and the Law in Ontario

Acknowledgements

The Ontario Hospital Association, and the Toolkit co-authors, Katharine Byrick and Barbara Walker-Renshaw, would like to thank the following representatives of psychiatric facilities, public hospitals and the mental health law sector for their participation in the preparation of this Toolkit. Their constructive comments and suggestions on this and earlier drafts of the Toolkit have contributed considerably towards making it a useful resource for health care providers and hospital administrators.

Ms. Pat Fryer, R.N., C.O.H.N.(S) Patricia Fryer & Associates Inc. 986 Silver Birch Trail Mississauga, Ontario

Dr. Lois Hutchinson Physician Adviser, Mental Health and Addictions Services St. Joseph's Care Group, Lakehead Psychiatric Hospital Thunder Bay, Ontario

Dr. Brian Jones, Ph.D, C. Psych. Forensic / Correctional Psychology Adjunct Assistant Professor Department of Psychiatry University of Toronto, McMaster University

Ms. Nyranne Martin General Counsel, Corporate Secretary, Chief Privacy Officer and Enterprise Risk Management Officer The Ottawa Hospital Ottawa, Ontario

Dr. Jay Moss Medical Leader and Psychiatrist Sunnybrook Health Sciences Centre Assistant Professor, Department of Psychiatry and

Family Medicine University of Toronto

Ms. Kendra Naidoo Legal Counsel Centre for Addiction and Mental Health (CAMH) Toronto, Ontario

Ms. Sheila Neuburger Executive Vice-President, Clinical Services Ontario Shores Centre for Mental Health Sciences Whitby, Ontario

Ms. Michelle O'Bonsawin General Counsel and Freedom of Information Coordinator

Legal Services Royal Ottawa Health Care Group Ottawa, Ontario

Ms. Nancy Smokler Manager, Office of the Resident and Family Experience

& Safety, Veterans Centre Sunnybrook Health Sciences Centre Toronto, Ontario

Dr. Ty Turner Medical Program Director Mental Health and Addictions Chief of Psychiatry St. Joseph's Health Centre Toronto, Ontario

Ms. Lee Anne Wiebe, RN, BScN, CPMHN(C) TOPSS Caseworker, Schizophrenia & Community

Integration Services St. Joseph's Healthcare Hamilton, West 5th Campus Hamilton, Ontario

II A Practical Guide to Mental Health and the Law in Ontario

About the Authors

Katharine Byrick

Katharine is a partner in the Health Law Practice Group in the Toronto office of Borden Ladner Gervais LLP. A considerable portion of Katharine's practice involves defending health care organizations and their employees in civil claims. A significant component of Katharine's practice also involves working directly with a variety of health care organizations in responding to adverse events, ALC issues, dealing with complicated consent issues including end-of-life, issues involving substitute decision makers, discharge planning and mental health law issues. Katharine has dealt extensively with matters involving the Health Care Consent Act, Substitute Decisions Act, Mental Health Act, as well as coroner's investigations and reviews.

Katharine has worked directly with clinical care teams to provide legal support in dealing with challenging situations involving all of the above, as well as with individuals in leadership roles to provide continuing education and support to staff on a more general level. Katharine has also worked with a variety of organizations in the development and review of policies and procedures on a range of topics including consent, end-of-life, use of restraints, QCIPA, disclosure of adverse events and critical incident management.

Katharine has appeared before the Superior Court of Justice, Divisional Court and the Court of Appeal for Ontario as well as the Consent and Capacity Board and the Ontario Review Board. She has also been involved in mediations and negotiations and has assisted with responses to Health Services Appeal and Review Board and the Information and Privacy Commissioner.

Barbara Walker-Renshaw

Barbara Walker-Renshaw is a partner in the Health Law Practice Group of Borden Ladner Gervais LLP and is the national leader of BLG's Mental Health Law Practice.

Barbara's practice has a specialty focus on mental health law, including advocacy before administrative tribunals, medical malpractice litigation, Coroners' Inquests and Commissions of Inquiry. She regularly represents the interests of the person-in-charge of forensic psychiatric facilities before the Ontario Review Board, in hearings concerning mentally disordered offender. She also represents health care providers before the Consent and Capacity Board in matters dealing with consent to treatment, substitute decision making, involuntary admissions, community treatment orders and admission to Long Term Care. Barbara advises psychiatric facilities on privacy and policy matters related to mental health care.

Barbara has an active appellate practice in appeals of both Ontario Review Board and Consent and Capacity Board matters, which includes frequent appearances before the Court of Appeal for Ontario and the Superior Court of Justice. She was co-counsel for an intervener in the Supreme Court of Canada decision, Starson v. Swayze, which considered the legal test for capacity to consent to treatment under Ontario's Health Care Consent Act.

Barbara is the author of the chapter on Mental Health Law in the Canadian Health Law Practice Manual, published by Lexis Nexis and regularly publishes articles dealing with mental health law. Barbara has been selected by her peers for inclusion in the 2015, 2016 and 2017 editions of The Best Lawyers in Canada in the area of Health Care Law.

III A Practical Guide to Mental Health and the Law in Ontario

Table of Contents

Disclaimer

I

Acknowledgements

II

About the Authors

III

Chapter 1: Overview of Legislation Relevant to Mental Health Care in Ontario

1. Introduction

1-1

2. Historical Development and Context

1-2

3. Key Legislation

1-6

The Mental Health Act

1-6

The Health Care Consent Act

1-6

The Substitute Decisions Act

1-6

The Personal Health Information Protection Act

1-6

Part XX.I of the Criminal Code of Canada

1-7

Chapter 2: Consent to Treatment

1. Introduction

2-1

What is "Treatment"?

2-2

2. Determining Capacity to Consent to Treatment

2-4

The Test for Capacity

2-4

PART A: Is the person able to understand the information that is relevant

to making a decision about the treatment?

2-4

PART B: Is the person able to appreciate the reasonably foreseeable consequences

of a decision or lack of decision?

2-5

Adolescents and Children

2-6

Geriatric Patients

2-7

Consequences of a Finding of Incapacity

2-7

3. Substitute Decision Makers

2-8

Identifying an Appropriate Substitute Decision Maker

2-8

1. The incapable person's guardian of the person, if the guardian has authority

to give or refuse consent to the treatment.

2-9

2. The incapable person's attorney for personal care, if the power of attorney confers

authority to give or refuse consent to the treatment.

2-10

3. The incapable person's representative appointed by the CCB under section 33,

if the representative has authority to give or refuse consent to the treatment.

2-11

IV A Practical Guide to Mental Health and the Law in Ontario

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