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) Ms. Sheila Neuburger Patricia Fryer & Associates Inc. Executive Vice-President, Clinical Services 986 Silver Birch Trail Ontario Shores Centre for Mental Health Sciences Mississauga, Ontario Whitby, Ontario Dr. Lois Hutchinson Ms. Michelle O’Bonsawin Physician Adviser, Mental Health and Addictions Services General Counsel and Freedom of Information Coordinator St. Joseph’s Care Group, Lakehead Psychiatric Hospital Legal Services Thunder Bay, Ontario Royal Ottawa Health Care Group Ottawa, Ontario Dr. Brian Jones, Ph.D, C. Psych. Forensic / Correctional Psychology Ms. Nancy Smokler Adjunct Assistant Professor Manager, Office of the Resident and Family Experience Department of Psychiatry & Safety, Veterans Centre University of Toronto, McMaster University Sunnybrook Health Sciences Centre Toronto, Ontario Ms. Nyranne Martin General Counsel, Corporate Secretary, Chief Privacy Dr. Ty Turner Officer and Enterprise Risk Management Officer Medical Program Director The Ottawa Hospital Mental Health and Addictions Ottawa, Ontario Chief of Psychiatry St. Joseph’s Health Centre Dr. Jay Moss Toronto, Ontario Medical Leader and Psychiatrist Sunnybrook Health Sciences Centre Ms. Lee Anne Wiebe, RN, BScN, CPMHN(C) Assistant Professor, Department of Psychiatry and TOPSS Caseworker, Schizophrenia & Community Family Medicine Integration Services University of Toronto St. Joseph’s Healthcare Hamilton, West 5th Campus Hamilton, Ontario Ms. Kendra Naidoo Legal Counsel Centre for Addiction and Mental Health (CAMH) Toronto, 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 TABLE OF CONTENTS 4. The incapable person’s spouse or partner. 2-12 5. A child or parent of the incapable person, or a Children’s Aid Society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. 2-12 6. A parent of the incapable person who has only a right of access. 2-12 7. A brother or sister of the incapable person. 2-13 8. Any other relative of the incapable person. 2-13 The Role of the Public Guardian and Trustee 2-13 Managing Conflict between SDMs 2-13 4. Principles that Guide the Substitute’s Decision Making on Behalf of an Incapable Person 2-14 Prior Capable Wish 2-14 “Best Interests” 2-15 Other Obligations of a Substitute Decision Maker 2-16 Limits on Substitute Decision Making 2-16 Decisions Not Being Made in Accordance with these Principles 2-16 5. What is a Valid Consent? 2-17 6. Consent and Capacity Principles in Mental Health Care: Other Considerations 2-17 Emergency Treatment without Consent 2-17 Treatment pending appeal 2-18 Assessments of Financial Capacity 2-19 Consent Issues in Community Treatment Orders (CTO) 2-19 7. Applications for Review of Findings of Incapacity to Consent to Treatment 2-19 Chapter 3: Assessment and Hospitalization Under the Mental Health Act 1. Introduction 3-1 2.