Understanding your rights

Challenges & Choices: Finding mental health services in Ontario

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Ontario mental health laws
Being admitted to hospital
Consenting to or refusing treatment
Community treatment orders

Ontario mental health laws

There are three main acts that outline your rights with respect to mental health services. The Mental Health Act is a set of rules decided by the Ontario legislature that gives doctors and psychiatric facilities certain powers and gives patients particular rights. These laws apply in general hospital psychiatric units and psychiatric hospitals but not mental health clinics. The Health Care Consent Act deals with rules for consenting, or agreeing, to treatment. The Substitute Decisions Act deals with how decisions can be made for a person and the appointment of powers of attorney for personal care and property. (See the Glossary for an explanation of the term power of attorney.)

The Mental Health Act deals with many inpatient issues, including:

when someone can be taken and admitted to a psychiatric facility involuntarily
how a person can be kept in the hospital
who can see a patient's records in the facility, and how to arrange to see them
a patient's right to information and right to appeal being involuntarily admitted, held in a facility, denied access to records and so on.

Being admi tted to hospital
Voluntary admission

Most people are admitted voluntarily to a psychiatric facility. They choose to enter the hospital for help with a problem. To be admitted voluntarily for care, you can get a doctor's recommendation or go to the emergency department of a psychiatric or general hospital or a local distress centre. You will be admitted if you need observation, care and treatment provided by an inpatient psychiatric facility.

Involuntary admission

Admitting someone against his or her wishes is a much more difficult situation for everyone concerned. The law identifies various ways to admit a person to a hospital as an involuntary, or certified, patient. The person must be seen to be a danger to him- or herself or to others, or at risk of serious physical impairment due to a mental health problem. A person can also be admitted involuntarily if the following are all true:

The person received treatment for a mental health problem before.
The person showed clinical improvement as the result of the treatment.
Based on the person's history and condition, it is likely that the person will cause harm to him- or herself or others, or to suffer substantial mental or physical deterioration or serious physical impairment.
The person has been found to be incapable of consent and a substitute decision-maker (SDM) (see definition) consents to treatment on his or her behalf and
The person is not suitable for informal or voluntary admission.

You can become an involuntary patient (required to stay in the hospital) if you meet the criteria or conditions described above. How long you have to stay in the hospital depends on how long you continue to meet the involuntary criteria or conditions. The Mental Health Act requires that certain forms must be used to admit patients and keep them in the hospital involuntarily, and to let them know about their rights. (To look at some commonly used forms, see Appendix C.)

If you are an involuntary client, you cannot leave the hospital unless permitted under conditions set by a doctor. If you disagree with being committed to (or kept in) the hospital, you can apply to the Consent and Capacity Board to have the doctor's decision reviewed. Members of this board are not part of the health care team responsible for your care. If you want legal representation (a lawyer) at the hearing, Legal Aid Ontario may be able to cover the costs.

(For more information about rights advice, see Legal help in Section 11.)

Consenting to or refusing treatment

The Health Care Consent Act sets out the rules for making decisions about treatment.
when you are capable of making decisions about your treatment

You have the right to make a decision about your treatment if you are capable of doing so. You are considered capable of making a decision about treatment if you are able:

to understand the information that is relevant to the decision about the treatment and
to appreciate the likely consequences of consenting to or refusing the treatment (or of not making the decision at all).

While in the hospital, you can refuse psychiatric treatment if you are considered mentally capable to decide on treatment.

All people have the right to get information from their doctor before consenting to treatment. That information should include:

the nature of the treatment
expected benefits of the treatment
important risks of the treatment
important side-effects of the treatment
other approaches that could be taken and
what will probably happen if you don't have the treatment.

When you are not capable of making decisions about your treatment

If you are found incapable of making treatment decisions, a substitute decision-maker (SDM) is asked to make decisions for you. The SDM has to make choices based on what you said you would want when you were capable. If you didn't express any wishes, the SDM must act in your "best interests."

An SDM may be a person's guardian, a power of attorney for personal care, someone appointed by the Consent and Capacity Board or a family member. If no one is available to act as an SDM, the Office of the Public Guardian and Trustee assumes this role. (See Public guardian and trustee in the Glossary.)

For more information or to get power of attorney forms, view the Web site of the Ministry of the Attorney General at www.attorneygeneral.jus.gov.on.ca and click on Power of Attorney. Or call the Office of the Public Guardian and Trustee at (416) 314-2803 in Toronto or toll-free at 1-800-366-0335.

When you are not able to manage your finances

If you become a patient in a psychiatric facility or unit, your doctor may find that you are incapable of managing your money and your property. To be judged "incapable of managing your property" means you are not able to understand important information about your finances and you cannot appreciate the consequences of making or not making financial decisions.

Unless you already have a guardian of property or you have made a power of attorney for property that states who will make money and property decisions for you, the Public Guardian and Trustee (PGT) becomes your guardian of property under the Mental Health Act and makes those decisions. The PGT is a government worker who will manage your property by making sure that money owed to you is paid and your bills and other expenses are paid. The PGT may let another person (e.g., a family member) take over responsibility if the person shows that he or she has a plan for managing your property in a way that is fair and appropriate.

If you think there is a risk that you might be found incapable of managing your finances, you can set up a power of attorney for property to allow someone you trust to take care of these responsibilities (such as paying your mortgage or credit cards). For instance, someone with bipolar disorder or schizophrenia may appoint someone they trust to have power of attorney if necessary.

If you are found to be incapable of managing your property or finances, and you have not already made a continuing power of attorney while you were capable, the court may select a guardian of property for you.

For more information and to get the necessary forms, view the Web site of the Ministry of the Attorney General at www.attorneygeneral.jus.gov.on.ca and click on Power of Attorney. Or call the Office of the Public Guardian and Trustee at (416) 314-2803 in Toronto or toll-free at 1-800-366-0335.

Community treatment orders

In December 2000, laws about community treatment orders (CTO's) were added to the Mental Health Act. A CTO is a legal order, issued by a doctor, and consented to by the person or his or her substitute decision-maker. The CTO outlines the conditions a person with a serious mental health problem must meet to live in the community.

You can be put on a CTO if you have a serious mental illness and meet the following criteria:
You have been an inpatient in a psychiatric unit two or more times or for at least 30 days in the last three years.
You and others helping with your care (e.g., SDM, doctor) have made a community treatment plan.
Your doctor has talked with the people named in your treatment plan, and they agree to their part in the plan. Your doctor knows that you and your SDM (if you have one) have had the chance to talk with a rights adviser.
You or your SDM (if you have one) agrees to the plan. Your doctor has examined you 72 hours before entering into the plan. He or she also believes that:
- You will likely become unwell if you do not get treatment or care, and continued supervision in the community. Without this care, your mental illness may cause you to seriously harm your own body or someone else's. Or you could get much worse mentally or physically, or become physically hurt.
- If you are not now a patient in a psychiatric facility, your doctor believes you meet the criteria for a Form 1.
- The care, treatment and supervision described in your treatment plan is available in the community.

CTO's are often used for people who come into contact with the mental health system repeatedly. Generally, treatment has worked for them but--for various reasons--they do not continue treatment after leaving the hospital.

CTO's cannot be used to treat people against their will while they are in the community. But if someone does not follow the requirements of the CTO, that person can be brought against their will to see the psychiatrist issuing the CTO and could possibly be hospitalized.

If you can't afford to pay for legal services, you can apply for legal aid. For a list of legal aid offices/clinics in your area, view the Legal Aid Ontario Web site at www.legalaid.on.ca

Challenges & Choices: Finding Mental Health Services in Ontario

Understanding your rights

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