Mental Health Law in Canada — Week 3 Notes

Overview

  • Mental Health legislation in Canada aims to balance civil liberties, safety for those with diminished capacity, and the safety of the broader community.

Key Concepts

  • Involuntary vs voluntary admission

  • Capacity to consent and substitute decision making

  • Rights of patients under the Charter and provincial acts

  • Privacy and confidentiality of records

Timeline of Legislation

  • 1808: Medical supervisor and courts (no expectation of recovery)

  • 1871: Lieutenant-governor and three doctors

  • 1935: Two doctors – person might recover (time limited)

  • 1967: Safety of self or others

  • 1978: Imminent and serious bodily harm to self or others; aims to clarify safety grounds

  • 2015: Consent and Capacity Board oversees long-term patients

Following Mental Health Legislation Across Time

  • Revisions between the 1940s and 2010 reflect shifting views on balancing rights with public safety

  • Involuntary hospitalization criteria are similar across provinces: danger to self or others

  • Increased emphasis on empowering individuals can create burdens for families and communities

Involuntary Hospitalization in Ontario – History

  • 1808, 1871, 1935, 1967, 1978, 2015 milestones (see timeline above)

Ontario Mental Health Legislation – Involuntary Admission

  • Acts involved: Mental Health Act (R.S.O. 1990, 2010); Health Care Consent Act (S.O. 1996); Substitute Decisions Act (S.O. 1992); Public Guardian and Trustee Act (R.S.O. 1990)

  • Involuntary admission criteria: serious harm, substantial deterioration, or serious impairment

  • Consent and advance directives; substitute decision making

Means of Obtaining Involuntary Assessment

  • Physician’s application

  • Judge’s order

  • Family members or community workers sworn before a justice of the peace

  • Police apprehension and transport to a facility

  • Appeals: can be reviewed by the Consent and Capacity Board (CCB) and then court if needed

Rights of Involuntary Patients under the Charter

  • Promptly informed of reasons for detention

  • Right to counsel without delay

  • Right to have detention reviewed

  • In Ontario: patient advocate support and appeal via the Consent and Capacity Board

Perception of Control and How to Support

  • Supportive, respectful professionals who maximize client choice

  • Provide information to help understand illness and treatment

  • Maintain a positive therapeutic alliance; educate about legal processes

  • Collaborate with families to reduce the impact of involuntary admissions

Voluntary vs Involuntary Admission

  • Voluntary admission: patient or substitute decision-maker agrees they need admission

  • If criteria for involuntary admission are not met, patient is released

  • If criteria are met, patient may be detained involuntarily under the Mental Health Act

Consent to Psychiatric Treatment

  • Consent = ability to give permission for one’s own treatment

  • Capacity to consent is task-specific and time-specific

  • Three core capacity understandings: information, its relevance, and the right to decide; awareness of risks

  • Two forms of consent: Expressed vs Implied

Express vs Implied Consent

  • Expressed consent: oral or written expression

  • Implied consent: inferred from actions or inaction

Challenges with Consent

  • Even if medication is refused, patient may be deemed a danger and restricted from leaving (rights trade-off)

  • Capacity is not static; it is treatment- and time-specific

Elements of Consent to Treatment

  • The person has capacity to consent

  • No impediment by mental health, health, or maturation

  • Consent is informed (risks/benefits of treatment and of no treatment)

  • Consent is voluntary and free from coercion

Age of Consent

  • There is no fixed age of consent

  • Criteria: understands information relevant to the proposed treatment and appreciates foreseeable consequences of consenting or refusing

Alternatives to Consent When Lacks Capacity

  • Advanced directives (formal wishes while competent)

  • Examples: medications, ECT, hospitalization preferences, use of restraints

  • Substitute decision-maker (designated in advance; bound by directives unless health/safety is endangered)

  • If not designated, law specifies a substitute decision maker

Community Treatment Orders (CTOs)

  • Allows treatment in the community instead of hospital admission

  • Critics call it a “leash law”; some evidence suggests improvement and fewer readmissions

  • Can be appropriate for serious mental disorders managed in the community

Duty to Warn and Protect

  • Triggered when there is risk to a clearly identified person or group

  • Risk includes bodily harm, death, or serious psychological harm; immediacy/urgency required

  • Duty to warn/protect overrides strict confidentiality when warranted

Confidentiality of Records

  • Clients may access their care records unless access risks harm beyond possible/safe bounds

  • Court access: in criminal cases if in interests of justice; civil cases if relevant to action; subpoenas

  • Federal/privacy laws: Privacy Act, PIPEDA govern privacy, collection, use, and disclosure

  • Organizations typically have privacy policies aligned with these laws; standards from regulatory bodies (e.g., OCSWSSW)

Readings for Week 3

  • Chapter 3: Mental Health Law in Canada (Regehr & Glancy, 2022)

  • Chapter 2: Recovery is Personal (MHCC, 2015)

  • Meeting Professional Obligations and Protection of Client’s Privacy (OCSWSSW, 2013)

  • Duty to Report or Not to Report… (OCSWSSW, 2021)