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Mental Health Statute Law Amendment Act, 2015, S.O. 2015, c. 36 - Bill 122

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EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 122 and does not form part of the law. Bill 122 has been enacted as Chapter 36 of the Statutes of Ontario, 2015.

Amendments are made to the Mental Health Act to provide the Consent and Capacity Board with new order-making powers when it confirms an involuntary patient’s certificate of continuation. A consequential amendment is also made to the Health Care Consent Act, 1996.

Section 20 of the Mental Health Act is amended to add the new concept of certificates of continuation to the Act. After the expiry of three certificates of renewal, an involuntary patient may only continue to be detained in a psychiatric facility under a certificate of continuation, which allows the patient to apply for one or more of the new Board orders under section 41.1.

The rights advice given to patients with respect to the repealed section 39.2 is repealed. Instead, rights advice is provided with respect to the new certificates of continuation and the new Board orders under section 41.1. Additional rights advice is provided when certain applications are made to the Board.

Amendments are made to section 39 with respect to the certificates of continuation. In particular, deemed applications under subsection 39 (4) are now made on the completion of the patient’s first certificate of continuation and on the completion of every fourth certificate of continuation thereafter.

Section 39 is amended to provide for several new applications. A procedure is provided for patients detained under a certificate of continuation to apply for the new Board orders under section 41.1. A patient may not apply for one of these new orders if he or she has applied for one of the new orders within the previous 12 months, unless the Board is satisfied that there has been a material change of circumstances. The Minister, the Deputy Minister or the officer in charge may also apply for an order under section 41.1 to transfer the patient to another psychiatric facility. In addition, a procedure is provided for applications to the Board to vary or cancel one of the Board’s new orders. Finally, new rules are provided for the composition and quorum of Board panels.

The previous procedure for applying for a transfer to another psychiatric facility under section 39.2 is repealed.

Section 41 is amended to require the Board to take a notice of intention to issue a community treatment order into consideration when it reviews a certificate of continuation. The Board may make the order to rescind a certificate of continuation effective on the issuance of a community treatment order by a physician.

The new section 41.1 allows the Board to make orders when it confirms a patient’s certificate of continuation to transfer a patient to another psychiatric facility if the patient does not object, place the patient on a leave of absence on the advice of a physician or direct the officer in charge to provide different security levels, different privileges, access to the community or vocational, interpretation or rehabilitative services. The Board may make the orders on its own motion or in response to an application made under the new subsection 39 (6) or 39 (8). The section provides factors that the Board must consider, restrictions on the Board’s ability to make orders and notice requirements if the Board proposes to make one of these orders on its own motion. The Board may order an independent assessment of the patient in determining whether to make the order. In addition, the orders may be made subject to the discretion of the officer in charge of the psychiatric facility. Rules are set out for transferring a patient to another psychiatric facility and placing a patient on a leave of absence.

The new section 41.2 provides a procedure for an officer in charge, or his or her delegate, to take a temporary action contrary to an order issued by the Board under section 41.1 if there is a risk of serious bodily harm to the patient or another person. The section sets out procedural requirements for taking a temporary action and requires the officer in charge, or his or her delegate, to apply to the Board to vary or cancel the order if the temporary action exceeds a period of seven days.

Section 42 is amended to add additional parties to the hearing of a patient detained under a certificate of continuation.

Subsection 81 (1) is amended to provide the Lieutenant Governor in Council with the power to require that rights advice be provided with respect to the new Board orders under section 41.1 and to govern the content and timing of that advice. In addition, the Lieutenant Governor in Council is also given the power to prescribe persons who may be members of certain Board panels.

Transition provisions are set out in the new sections 82 to 84. Section 82 provides that fourth or subsequent certificates of renewal that are completed and filed before December 21, 2015 (the day the amendments in this bill come into force) continue to authorize the detention, restraint, observation and examination of an involuntary patient in a psychiatric facility. Patients under these certificates may continue as involuntary patients on the completion and filing of a new certificate of continuation.

Section 83 provides procedural rules for applications made under subsection 39 (2) or (4) before December 21, 2015. It also provides that any patient who was deemed to have applied under subsection 39 (4) after June 21, 2015 but before December 21, 2015 is not deemed to have applied under subsection 39 (4) on the completion of their first certificate of continuation and may not apply for the new Board orders under section 41.1 until he or she is issued a second certificate of continuation. These patients’ first deemed application for hearing under subsection 39 (4) would be made on the completion of their second certificate of continuation and on the completion of every fourth certificate of continuation thereafter. The hearing of an application for a new Board order that is made before June 21, 2016 shall begin within 28 days, rather than seven days.

Section 84 provides that any application made under the repealed section 39.2 before December 21, 2015 shall be continued and finally disposed of in accordance with that section as it read immediately before its repeal.

Amendments are made throughout the Act to add references to certificates of continuation where applicable.

A consequential amendment is made to the Health Care Consent Act, 1996 to remove a procedural rule that applied to hearings of an application under the repealed section 39.2.

Français

chapter 36

An Act to amend the Mental Health Act and the Health Care Consent Act, 1996

Assented to December 10, 2015

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Mental Health Act

1. The Mental Health Act is amended by striking out “a certificate of involuntary admission or a certificate of renewal” wherever it appears in the following provisions and substituting in each case “a certificate of involuntary admission, a certificate of renewal or a certificate of continuation”:

1. Subsection 20 (1.1), in the portion before clause (a).

2. Subsection 20 (5), in the portion before clause (a).

3. Subsection 38 (1).

4. Section 40.

5. Subsection 48 (11), in the portion before clause (a).

2. (1) The definition of “involuntary patient” in subsection 1 (1) of the Act is amended by striking out “under a certificate of involuntary admission or a certificate of renewal” and substituting “under a certificate of involuntary admission, a certificate of renewal or a certificate of continuation”.

(2) Subsection 1 (1) of the Act is amended by adding the following definition:

“registered nurse in the extended class” means a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991; (“infirmière autorisée ou infirmier autorisé de la catégorie supérieure”)

3. Subsection 13 (7) of the Act is amended by striking out “Subsection 39 (6)” at the beginning and substituting “Subsection 39 (14)”.

4. (1) Clause 20 (4) (b) of the Act is repealed and the following substituted:

(b) for not more than,

(i) one additional month under a first certificate of renewal,

(ii) two additional months under a second certificate of renewal,

(iii) three additional months under a third certificate of renewal, and

(iv) three additional months under a first or subsequent certificate of continuation,

(2) Subsection 20 (8) of the Act is amended by striking out “of a certificate of involuntary admission or of a certificate of renewal” and substituting “of a certificate of involuntary admission, a certificate of renewal or a certificate of continuation”.

5. (1) Clause 38 (2) (d) of the Act is repealed and the following substituted:

(d) where applicable, that the patient has the right to request that the Board make one or more orders under section 41.1.

(2) Subsection 38 (3) of the Act is repealed and the following substituted:

Rights adviser

(3) The rights adviser shall promptly meet with the patient and explain to him or her the significance of the certificate, the right to have it reviewed by the Board and, where applicable, the right to request that the Board make one or more orders under section 41.1.

(3) Section 38 of the Act is amended by adding the following subsections:

Requirements for certain Board applications

(4) The officer in charge shall promptly give the patient a copy of the application and shall also promptly notify a rights adviser when,

(a) the Minister, the Deputy Minister or the officer in charge applies under subsection 39 (8) to transfer the patient to another psychiatric facility; or

(b) the officer in charge, or his or her delegate, applies under subsection 39 (9) to vary or cancel an order made under section 41.1.

Rights advice

(5) The rights adviser shall promptly meet with the patient and explain to him or her the significance of the application.

(4) Subsection 38 (8) of the Act is amended by striking out “Subsections (3) and (7)” at the beginning and substituting “Subsections (3), (5) and (7)”.

6. Section 39 of the Act is repealed and the following substituted:

Application for review by patient, etc.

39. (1) An involuntary patient, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the prerequisites set out in this Act for admission or continuation as an involuntary patient are met.

When application may be made

(2) In addition to the applications under subsection (4), an application under subsection (1) may be made,

(a) when a certificate of involuntary admission respecting the patient comes into force;

(b) when any certificate of renewal respecting the patient comes into force; or

Application for review by Minister, etc.

(3) An application under subsection (1) may be made at any time by the Minister, the Deputy Minister or the officer in charge of the psychiatric facility in respect of any involuntary patient.

Where notice deemed to have been given

(4) On the completion of a patient’s first certificate of continuation and on the completion of every fourth certificate of continuation thereafter, the patient shall be deemed to have applied to the Board in the approved form under subsection (1) unless he or she has already applied under clause (2) (c).

Waiver

(5) A waiver by an involuntary patient of an application or of the right to an application mentioned in subsection (4) is a nullity.

Application for order under section 41.1

(6) A patient detained under a certificate of continuation, or a person acting on the patient’s behalf, may apply to the Board in the approved form when he or she makes an application under subsection (1), or when an application is deemed to have been made under subsection (4), to request that the Board make one or more orders under section 41.1.

Exception

(7) The Board shall not hear an application under subsection (6) if the patient, or a person acting on the patient’s behalf, has made another application under subsection (6) within the previous 12 months, unless the Board is satisfied that there has been a material change in circumstances.

Application for transfer

(8) If a patient is detained under a certificate of continuation, the Minister, the Deputy Minister or the officer in charge of the psychiatric facility may apply to the Board in the approved form to request that the Board make an order under paragraph 1 of subsection 41.1 (2) to transfer the patient to another psychiatric facility.

Application to vary or cancel an order under section 41.1

(9) An officer in charge, or his or her delegate, may apply to the Board in the approved form to vary or cancel an order made under section 41.1 and the Board may hear the application at a date and time to be set by the Board if it is satisfied that there has been a material change in circumstances or if the application has been made in accordance with clause 41.2 (2) (c).

Same

(10) A patient, or a person acting on the patient’s behalf, may apply to the Board in the approved form to vary or cancel an order made under section 41.1 and, if the Board is satisfied that there has been a material change in circumstances, the Board shall hear the application when it hears the patient’s next application under subsection (1) or (4).

Board powers

(11) The Board may vary or cancel an order made under section 41.1 when it hears an application under subsection (9) or (10).

Notice

(12) Upon receiving an application made under subsection (6), (8), (9) or (10), the Board shall promptly give notice of the application to the Minister and, if applicable, to the officer in charge of any psychiatric facility named in the application.

Panels of three or five members

(13) Despite subsection 73 (1) of the Health Care Consent Act, 1996, the chair shall assign the members of the Board to sit in panels of three or five members to hear applications under this section.

Composition and quorum of panels

(14) The following rules apply with respect to the composition and quorum of panels of the Board that hear applications under this section:

1. A three-member panel shall consist of the following:

i. For the hearing of a patient detained under a certificate of continuation, a psychiatrist, a lawyer and a third person who is not a psychiatrist or a lawyer.

ii. For any other hearing,

A. a psychiatrist, a physician, a registered nurse in the extended class or a prescribed person,

B. a lawyer, and

C. a third person who is not a psychiatrist, a physician, a registered nurse in the extended class, a lawyer or a prescribed person.

2. Despite clause 73 (3) (b) of the Health Care Consent Act, 1996, all three members of a three-member panel are required to constitute a quorum.

3. A five-member panel shall consist of the following:

i. For the hearing of a patient detained under a certificate of continuation, one or two psychiatrists, one or two lawyers, and one to three other persons who are not psychiatrists or lawyers.

ii. For any other hearing,

A. one or two persons who are psychiatrists, physicians, registered nurses in the extended class or prescribed persons,

B. one or two lawyers, and

C. one to three other persons who are not psychiatrists, physicians, registered nurses in the extended class, lawyers or prescribed persons.

4. Despite clause 73 (3) (b) of the Health Care Consent Act, 1996, the following members are required to constitute a quorum of a five-member panel:

i. For the hearing of a patient detained under a certificate of continuation, at least one psychiatrist, one lawyer and one person who is not a psychiatrist or a lawyer.

ii. For any other hearing, at least one person who is a psychiatrist, a physician, a registered nurse in the extended class or a prescribed person, one lawyer and one person who is not a psychiatrist, a physician, a registered nurse in the extended class, a lawyer or a prescribed person.

Procedure

(15) Clause 73 (3) (a), subsection 73 (4) and sections 74 to 80 of the Health Care Consent Act, 1996 apply to an application under this section, with necessary modifications.

7. Subsection 39.1 (10) of the Act is amended by striking out “Subsections 39 (5.1), (6) and (7)” at the beginning and substituting “Subsections 39 (13), (14) and (15)”.

8. Section 39.2 of the Act is repealed.

9. (1) Section 41 of the Act is amended by adding the following subsections:

Consideration of community treatment order

(2.1) If the Board is reviewing a certificate of continuation and is advised that a physician has completed a notice of intention to issue a community treatment order for a patient, the Board shall take the notice of intention into consideration when reviewing the patient’s status.

Same

(2.2) For greater certainty, nothing in subsection (2.1) prevents the Board from taking into account a notice of intention to issue a community treatment order for a patient who is not detained under a certificate of continuation when reviewing the patient’s status.

(2) Section 41 of the Act is amended by adding the following subsection:

Rescinding order may be effective on issuance of community treatment order

(3.1) The Board may make an order to rescind a certificate of continuation effective on the issuance of a community treatment order by a physician.

(3) Subsection 41 (4) of the Act is amended by striking out “the certificate of involuntary admission or the certificate of renewal” and substituting “the certificate of involuntary admission, the certificate of renewal or the certificate of continuation”.

10. The Act is amended by adding the following sections:

Board orders

41.1 (1) When the Board makes an order confirming a patient’s certificate of continuation, the Board may make an order listed in subsection (2) on its own motion or in response to an application made under subsection 39 (6) or may make the order requested under subsection 39 (8).

List of Board orders

(2) The Board is limited to making only one or more of the following orders when it confirms a patient’s certificate of continuation:

1. Transfer the patient to another psychiatric facility, subject to subsections (10), (11) and (12), but only if the patient does not object.

2. Place the patient on a leave of absence for a designated period on the advice of a physician, subject to subsection (13).

3. Direct the officer in charge of the psychiatric facility to provide the patient with a different security level or different privileges within or outside the psychiatric facility.

4. Direct the officer in charge of the psychiatric facility to allow the patient to be provided with supervised or unsupervised access to the community.

5. Direct the officer in charge of the psychiatric facility to provide the patient with vocational, interpretation or rehabilitative services.

Factors to consider

(3) In making an order under this section, the Board shall take into account the following factors:

1. The safety of the public.

2. The ability of the psychiatric facility or facilities to manage and provide care for the patient and others.

3. The mental condition of the patient.

4. The re-integration of the patient into society.

5. The other needs of the patient.

6. Any limitations on the patient’s liberty should be the least restrictive limitations that are commensurate with the circumstances requiring the patient’s involuntary detention.

Restriction on orders

(4) An order under this section shall not direct or require a physician to provide any psychiatric or other treatment to the patient or direct or require that the patient submit to such treatment.

Exception

(5) Despite subsection (4), if a physician agrees to provide psychiatric or other treatment to the patient and the patient, or the patient’s substitute decision-maker, consents to the treatment in accordance with the requirements of the Health Care Consent Act, 1996, the Board may provide that any order it makes under this section is contingent upon that agreement and consent.

Notice if order on own motion

(6) If the Board proposes to make an order under this section on its own motion, it shall provide notice to the persons listed in subsection 42 (2) and provide them with an opportunity to be heard and an opportunity to be added as a party.

Orders under the Statutory Powers Procedure Act

(7) Subsection (2) does not affect the Board’s power to make interim, procedural or other orders under the Statutory Powers Procedure Act.

Independent assessment

(8) In determining whether to make an order under this section, the Board may order an independent assessment of the patient’s mental condition or his or her vocational, interpretation or rehabilitative needs.

Order may be subject to discretion

(9) The Board may make the implementation of an order under this section subject to the discretion of the officer in charge of the psychiatric facility.

Considerations for transfer

(10) In determining whether to order that a patient be transferred to another psychiatric facility, the Board shall consider whether,

(a) the transfer is in the patient’s best interests;

(b) the transfer is likely to improve the patient’s condition or well-being; and

Authority to detain

(11) If the Board orders the transfer of a patient to another psychiatric facility, the authority to detain the patient continues in force in the psychiatric facility to which he or she is so transferred.

Transfer of records

(12) The officer in charge of the psychiatric facility from which the patient is transferred may transfer the patient’s record of personal health information to the officer in charge of the psychiatric facility to which the patient is transferred.

Leave of absence

(13) If the Board orders that a patient be placed on a leave of absence, the physician and the patient shall comply with such terms and conditions for the leave of absence as the Board may prescribe.

Compliance

(14) Any person named in an order made under this section shall comply with the order within the time and in the manner provided for in the order.

Temporary action, risk of serious bodily harm

41.2 (1) Despite subsection 41.1 (14), an officer in charge, or his or her delegate, may take a temporary action contrary to an order made under section 41.1 if there is a risk of serious bodily harm to the patient or another person.

Requirements if temporary action taken

(2) If an officer in charge, or his or her delegate, takes a temporary action in accordance with subsection (1), he or she shall,

(a) clearly document the action in the patient’s record of personal health information;

(b) promptly give the patient a written notice informing him or her that the officer in charge, or his or her delegate, has taken the temporary action; and

(c) if the temporary action exceeds a period of seven days, promptly apply to the Board in accordance with subsection 39 (9) to vary or cancel the order.

Temporary action may continue

(3) The temporary action may continue until the Board disposes of the application made in accordance with clause (2) (c).

11. Section 42 of the Act is repealed and the following substituted:

Parties

42. (1) The parties to a hearing before the Board, other than a hearing described in subsection (2), are the attending physician, the patient or other person who has required the hearing and such other persons as the Board may specify.

Certificate of continuation hearing

(2) The parties to a hearing of a patient detained under a certificate of continuation are the following:

1. The patient or other person who has required the hearing.

2. The attending physician.

3. The officer in charge of the psychiatric facility.

4. If a party to the hearing requests a transfer to another psychiatric facility, or if the Board proposes to transfer the patient to another psychiatric facility on its own motion, the officer in charge of that psychiatric facility.

5. The Minister, if the Minister has informed the Board that he or she intends to participate as a party.

6. Such other persons as the Board may specify.

Minister entitled to be heard

(3) The Minister is also entitled to be heard, by counsel or otherwise, at a hearing referred to in subsection (2) without becoming a party.

12. (1) Subsection 48 (1) of the Act is amended by striking out “the Board’s decision” and substituting “the Board’s decision or order”.

(2) Subsection 48 (5) of the Act is amended by adding “a certificate of continuation” after “a certificate of renewal”.

(3) Subsection 48 (6) of the Act is amended by adding “a certificate of continuation” after “a certificate of renewal”.

(4) Subsection 48 (8) of the Act is amended by striking out “the certificate” and substituting “the certificate of involuntary admission, the certificate of renewal or the certificate of continuation”.

(5) Subsection 48 (9) of the Act is amended by striking out “a certificate” and substituting “a certificate of involuntary admission, a certificate of renewal or a certificate of continuation”.

(6) Subsection 48 (10) of the Act is amended by adding “or a certificate of continuation” at the end.

(7) Subsection 48 (13) of the Act is repealed.

13. Section 58 of the Act is amended by striking out “certificate of continuance” and substituting “notice of continuance”.

14. (1) Subsection 59 (1) of the Act is amended by striking out “certificate of continuance” and substituting “notice of continuance”.

(2) Subsection 59 (2) of the Act is amended by striking out “the certificate” and substituting “the certificate or notice”.

15. Subsection 81 (1) of the Act is amended by adding the following clauses:

(h.4) requiring that rights advice be provided to a patient or a category of patients with respect to orders under section 41.1;

(h.5) governing the timing or content of any rights advice required by clause (h.4);

. . . . .

(k.5) prescribing a person for the purposes of subsection 39 (14);

16. The Act is amended by adding the following sections:

Transition, section 20

82. (1) Despite subsection 20 (4), an involuntary patient may be detained, restrained, observed and examined in a psychiatric facility under a fourth or subsequent certificate of renewal for not more than three months from the date the certificate was completed if the certificate was completed and filed before December 21, 2015.

Same

(2) At the expiry of a certificate referred to in subsection (1), the attending physician may continue the patient as an involuntary patient by completing and filing a certificate of continuation, and subsection 20 (4) applies to the certificate of continuation.

Transition, section 39

83. (1) An involuntary patient who made an application under subsection 39 (2) or who was deemed to have made an application under subsection 39 (4) before December 21, 2015, as it read at that time, shall have that application continued and finally disposed of in accordance with that subsection as it read immediately before its re-enactment.

Same

(2) Despite subsection 39 (4), an involuntary patient who was deemed to have made an application under subsection 39 (4), as it read at the time, on or after June 21, 2015 but before December 21, 2015,

(a) shall not be deemed to have applied under subsection 39 (4) on the completion of the patient’s first certificate of continuation; and

(b) may not make an application under subsection 39 (6) until he or she has been issued a second certificate of continuation.

Same

(3) The second certificate of continuation of a patient referred to in subsection (2) shall be deemed to be the patient’s first certificate of continuation for the purposes of subsection 39 (4), and, for greater certainty, the patient shall be deemed to have applied under subsection 39 (4) on the completion of that certificate of continuation and on the completion of every fourth certificate of continuation thereafter.

Same

(4) Despite subsection 39 (15) of this Act and subsection 75 (2) of the Health Care Consent Act, 1996, the hearing of an application made under subsection 39 (6) or (8) of this Act before June 21, 2016 shall begin within 28 days after the day the Board receives the application, unless the parties agree to a postponement.

Transition, section 39.2

84. Despite the repeal of section 39.2, any application that was made under that section before December 21, 2015 shall be continued and finally disposed of in accordance with that section as it read immediately before its repeal.

Health Care Consent Act, 1996

17. Subsection 75 (2.1) of the Health Care Consent Act, 1996 is repealed.

Commencement and Short Title

Commencement

18. This Act comes into force on December 21, 2015.

Short title

19. The short title of this Act is the Mental Health Statute Law Amendment Act, 2015.

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Mental Health Statute Law Amendment Act, 2015, S.O. 2015, c. 36 - Bill 122

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