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Mental Health : Bill 68 (Mental Health Legislative Reform), 2000

Role of the Rights Adviser

The role of the rights adviser is established under the Mental Health Act and its regulations. Section 1(1) of the Mental Health Act, as amended by Bill 68 (Mental Health Legislative Reform), 2000, defines rights adviser as :

" a person, or a member of a category of persons, qualified to perform the functions of a rights adviser under this Act and designated by a psychiatric facility, the Minister or by the regulations to perform those functions, but does not include :   (a) a person involved in the direct clinical care of the person to whom rights advice is to be given;   or   (b) a person providing treatment or care and supervision under a community treatment plan."

Historically, rights advice has been a process by which patients in psychiatric facilities are informed of their rights when a physician changes their legal status. Prior to Bill 68 (Mental Health Legislative Reform), 2000 amendments, there were eight mandatory rights advice situations that occurred to patients in psychiatric facilities. These situations include :

  • A physician's decision that the patient's status must change to involuntary;
  • A physician's decision that the patient's involuntary status must continue;
  • A physician's decision that the patient is incapable to manage his/her property, including finances;
  • A physician's decision that the patient's incapacity to manage his/her property must continue;
  • A physician's decision that the patient is incapable to consent to treatment;
  • A physician's decision that the patient is incompetent to examine or consent to disclose his/her clinical record;
  • When a twelve to fifteen year old is admitted to a psychiatric facility as an informal patient.

Bill 68 amendments create a new rights advice situation: rights advice must be provided whenever a community treatment order (CTOs) is issued or renewed to: (1) the patient, and (2) the patient's substitute decision-maker (SDM), if there is one. CTOs related rights advice is provided, regardless of whether the patient is in a psychiatric facility or in the community. CTOs are the only circumstance in which rights advice is provided in the community. Bill 68 amendments also provide that both the patient and SDM must be told of their right to retain and instruct legal counsel.

Process of rights advice :
When any one of the above described rights advice situations occurs, the physician is required under the law to notify the rights adviser. The rights adviser is required, in turn, to promptly meet with the patient. The rights adviser must explain to the patient the significance of the situation. The rights adviser discusses the options available to the patient, including his/her right to have the situation reviewed by the Consent and Capacity Board, if he/she disagrees with the physician's decision.

If the patient wishes to have a hearing before the Consent and Capacity Board, the rights adviser assists the patient to make the application, to obtain legal counsel if so requested, and to apply for Legal Aid if so requested.

The rights adviser provides information to patients in a neutral, non-judgmental manner. The rights adviser must not make decisions for patients but assist them in carrying out their decisions.

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