In June, 1998, the government announced a review of the Mental Health Act and related legislation in response to the recommendations of MPP Dan Newman's report entitled 2000 and Beyond: Strengthening Ontario's Mental Health System. In his report, Mr. Newman recommended that all components of the mental health system, including legislation, operate in an integrated and co-ordinated fashion to deliver the best services to Ontarians who need them.

Following Mr. Newman's report, an internal working group at the Ministry of Health and Long-Term Care began an extensive review of all aspects of mental health legislation.

In March, 2000, a discussion paper entitled: The Next Steps was released, outlining the government's proposals to amend the Mental Health Act and the Health Care Consent Act.

MPP Brad Clark conducted a series of province-wide public meetings concerning the proposals, and the feedback generated was considered in the development of Bill 68. Bill 68 received Royal Assent on June 23, 2000, and has a Proclamation date of December 1, 2000.

Bill 68 (Mental Health Legislative Reform), 2000 amends the Mental Health Act and Heath Care Consent Act to enable community treatment orders ("CTOs") for persons with serious mental illness.

The Act facilitates CTOs by expanding the current assessment and committal criteria to include chronically mentally ill persons and to allow their families and health professionals to intervene at an earlier stage in the committal process.

The amendments provide for consent to a community treatment plan by the person or his or her substitute decision-maker, community support pre-requisites, the terms, conditions, responsibilities and other formal details of a CTO, and the responsibilities of the issuing physician, or other service providers. The amendments provide for rights advice, the entitlement to counsel, hearings and appeals.

Other amendments will be made to facilitate CTO's, to remove barriers to treatment and to streamline the rules with respect to applications to the Consent and Capacity Board and possible appeals to Court.

1.   PSYCHIATRIC ASSESSMENTS AND CIVIL COMMITMENT PROVISIONS

(i) "Imminent"

The word "imminent" was removed from the involuntary examination, assessment and civil commitment provisions in the MHA.

(ii) New Assessment and Committal Criteria

The involuntary psychiatric assessment and civil commitment provisions were expanded to include chronically mentally ill persons and to allow family members and health professionals to intervene at an earlier stage in the committal process.

2.   APPLICATION FOR ASSESSMENT

The provisions in the MHA which permit a physician to apply for an involuntary 72-hour assessment of a person were expanded to permit an application in the following circumstances :

• the physician has examined the person;
• the person has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;
• the person has improved clinically;
• the person is suffering from the same or a similar mental disorder for which he or she received treatment in the past;
• given the person's history of mental disorder and current mental or physical condition, the person is likely to cause serious bodily harm to himself, herself or others or suffer substantial mental or physical deterioration or serious physical impairment;  and
• the person is incapable of consenting to his or her treatment in a psychiatric facility and the person's substitute decision-maker has consented.

3.   INVOLUNTARY ADMISSIONS AND RENEWALS

Amendments were made to the current civil commitment provisions in section 20 of the MHA which permit a person's involuntary admission to a psychiatric facility.

The amendments added the ground of "substantial mental or physical deterioration" and focused on harms that could reasonably be expected to arise as a result of a lack of treatment, in situations where the person has a history of serious mental disorder that has been successfully treated in the past.

4.   POLICE POWERS

(i) Requirement to Observe Disorderly Conduct

Section 17 of the MHA was amended to remove the requirement that the police personally observe "disorderly" conduct before they may intervene to apprehend a person and take him or her to a physician for an examination. Instead the police may intervene where they have reasonable and probable grounds to believe that such conduct has occurred.

(ii) Term "Police Officer"

The MHA used the terms "police officer", "peace officer" and "constable" interchangeably and without definition. These references in the Act were amended to say "police officer" only. This makes it clear that the policing authority in the Act rests with police officers as defined by the Police Services Act and not with special constables, bailiffs and others who fall within the definition of "peace officer" in the Criminal Code (Canada).

5.   ADMISSIONS UNDER THE CRIMINAL CODE (CANADA)

(i) Removal of References to "Remands" and "Warrants of the Lieutenant Governor"

Section 25 of the Act permitted the admission of offenders who were "remanded to custody for observation or detained under the authority of a warrant of the Lieutenant Governor" and said that such individuals may be "admitted to, detained in and discharged from a psychiatric facility in accordance with the law".

The language of "remands"" and "warrants of the Lieutenant Governor" is outdated as a result of amendments to the Criminal Code (Canada). Accordingly, this section was amended to remove the outdated references.

(ii) "In Accordance with the Law"

Section 25 was amended to clarify that a person detained under the mental disorder part of the Criminal Code (Canada) may be restrained, observed and examined under the MHA and provided with treatment under the HCCA.

6.   UNAUTHORIZED ABSENCES FROM PSYCHIATRIC FACILITIES

Section 28 was amended to clarify that a police officer or another person may return a person who is subject to detention in a psychiatric facility, where the officer in charge has completed an order for return in the approved form. The order for return will be in effect for 1 month.

7.   MINISTER'S AUTHORITY TO ORDER ADMISSION

Section 32 of the MHA was amended to permit the Minister to delegate her authority to make an order for the admission of a mentally disordered person coming Into Ontario.

8.   COMMUNITY TREATMENT ORDERS ("CTOs")

The MHA was amended to include comprehensive CTO provisions.

(i) When a CTO May Be Issued

A CTO may be issued by a physician in respect of a person, to provide the person with psychiatric treatment that is less restrictive than being detained in a psychiatric facility.

(ii) Target Population

A CTO will be available where the person subject to the order has been a patient in a psychiatric facility on 2 or more separate occasions, or admitted for a cumulative period of 30 days or more in the past 3 years, or has been the subject of a previous CTO. In addition, there must be a community treatment plan in place that has been consented to by the person or his or her substitute decision-maker and an examination by the issuing physician within the previous 72 hours before entering into the community treatment plan.

(iii) Criteria for CTO

The physician may issue a CTO if his or her examination and other relevant facts communicated to the physician cause the physician to be of the opinion that the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community; if the person does not receive the continuing treatment or care and continuing supervision, he or she is likely to cause serious bodily harm to himself, herself or another person or suffer substantial mental or physical deterioration or serious physical impairment; the person is able to comply with the community treatment plan; and the treatment or care and supervision required under the terms of the CTO are available in the community.

(iv) Rights Advice

New section 33.1(2) requires that the issuing physician be satisfied that the person or his or her substitute decision-maker has consulted a rights adviser. This provision will not apply to a person subject to a CTO if the person refuses to consult a rights adviser. The physician must also be satisfied that the person or substitute decision-maker has understood his or her rights and duties under the HCCA when deciding whether to consent to a community treatment plan and there must be consent to the plan.

(v) Obligations Under a CTO

The amendments include obligations on the person subject to the CTO to attend at appointments specified in the community treatment plan and to comply with the plan.

(vi) Renewals and Termination of CTOs

A first CTO may be in effect for 6 months and may be renewed thereafter for 6 month periods if the criteria for making a CTO continue to be met. A CTO may also be renewed up to 1 month after a previous CTO expires.

The amendments permitted a person subject to a CTO or his or her substitute decision-maker to request that the issuing physician review the person's condition to determine whether the CTO is still necessary for the person to continue to live in the community.

Section 39.1(2) permits a person subject to a CTO or any person on his or her behalf to apply to the Consent and Capacity Board each time a CTO is issued or renewed.

(vii) Failure to Comply with a CTO

If an issuing or renewing physician has reasonable cause to believe a person has failed to comply with a CTO, the physician may issue an order for examination after reasonable efforts have been made to locate the person, inform him or her or the substitute decision-maker of the failure to comply and the possible consequences thereof, and provide assistance to the person to comply with the terms of the CTO.

(viii) Withdrawal of Consent to CTO

The amendments require that a person subject to a CTO or his or her substitute decision-maker give notice to the issuing physician should consent to the community treatment plan be withdrawn. This will permit the issuing physician to examine the person to determine whether he or she should be admitted to a psychiatric facility for a psychiatric assessment or may be permitted to live in the community without being subject to a CTO. In the event that the person refuses to attend at the physician's place of work so that an examination may be performed, the physician will be permitted to issue an order for the person's examination.

(ix) Accountability

The issuing physician will remain responsible for the operation and management of a CTO, but may appoint another physician to act in his or her place, with the consent of that physician.

The issuing physician may also indicate who is to be responsible for implementing the community treatment plan by naming other health practitioners or persons specified in the regulations.

The physician, other health practitioners and persons who may be involved in a CTO or community treatment plan must consent to being named by the issuing physician.

(x) Protection Against Liability

An issuing physician or other health practitioner or person with authority under a community treatment order or plan, as the case may be, will be exempt from liability where they act reasonably and in good faith and will not be liable for any default or neglect on the part of other persons implementing the plan.

(xi) Contents of Community Treatment Plan

Minimum requirements for a community treatment plan will include a plan of treatment; any conditions on the treatment; the obligations of the person subject to the CTO; and the names of any other health practitioners or other persons with responsibilities under the plan.

(xii) Information, Confidentiality and Reporting Requirements

Section 35 of the MHA was amended to permit the officer in charge of a psychiatric facility to disclose the clinical record of a person subject to a CTO, to the issuing physician or to a member of the treatment team. In addition, the issuing physician responsible for the operation and management of a CTO may request reports at any time from other members of the treatment team and the amendments specify that these individuals may share information with each other for the purpose of caring for a person in accordance with a CTO.

Comprehensive regulation making authority is included in section 81 of the MHA so that regulations can be made in respect of the use, disclosure and retention of information obtained under these proposed amendments.

(xiii) Rights of Review

The MHA was amended to permit reviews by the Consent and Capacity Board under the expanded committal criteria and appeals from Board decisions.

In addition, a new section 39.1 permits a review each time a CTO is issued to determine whether the criteria for making the CTO are satisfied. Again, the Board's decision in respect of this issue may be appealed to the Courts.

Section 39.1 also states that there is a deemed application by a person subject to a CTO after every second renewal (or every 12 months.)

(xiv) Regulation Making Authority

The regulation making authority under the MHA was expanded to permit regulations governing :

1. CTOs, including the qualifications for issuing such orders, additional duties of physicians and others with responsibility for issuing a CTO and any forms that may be required;
2. The provision of rights advice, the circumstances in which such advice must be given and the qualifications of rights advisers;
3. The transfer of information amongst members of the treatment team responsible for implementing a CTO and for rights advice purposes;
4. The use, disclosure, and retention of personal information in respect of a person subject to a CTO.

(xv) Review

The Minister must establish a process to review the following :

1. The reasons that community treatment orders were or were not used during the review period;
2. The effectiveness of community treatment orders during the review period;
3. Methods used to evaluate the outcome of any treatment used under community treatment orders;

The first review must be undertaken during the third year after the Proclamation date (December 1, 2000.)

A subsequent review must be completed every five years after the first review is completed.

The Minister must make available for inspection to the public the written report of the person conducting each review.

9.   DEFINITIONS

(i) Treatment and Community Treatment Plans

The Mental Health Act ("MHA") and Health Care Consent Act ("HCCA") were amended to include new definitions of "community treatment plan" in both Acts, to include this definition in the definition of "treatment" in the HCCA and to state that the definitions of "plan of treatment" and "treatment" in the HCCA will also apply in the MHA.

This ensures that the consent, review and appeal rules that govern treatment under the HCCA will also apply to treatment provided under a community treatment plan contained in a CTO.

(ii) Rights Advisers

The term "rights adviser" was amended to include rights advisers designated to provide rights advice to persons in the community who may be subject to a CTO, and to their substitute decision-makers.

(iii) Psychiatric Facility

The MHA provided that all psychiatric facilities under the Act must be designated in the Regulations. Corporate amalgamations and restructuring initiatives have resulted, and will result in the future, in frequent name changes for facilities under the Act. Accordingly, the definition of "psychiatric facility" was amended to provide that the designations will be made by the Minister.

1.   Definitions

The Act was amended to include the definition of "community treatment plan" in the MHA and to include this definition in the definition of "treatment" in the HCCA.

The effect of this is that the rules governing treatment in the HCCA were incorporated into the rules governing a community treatment plan under the MHA.

2.   Streamlining of Hearing and Appeals Process

The current hearing and appeal rules permit a number of different hearings and subsequent appeals to Court.

The applications include :

• An application by an incapable person concerning his or her capacity to consent to treatment;
• An application by an incapable person for the appointment of a representative to make treatment decisions on the person's behalf;
• An application by a substitute decision-maker to determine whether or not the incapable person has prior capable wishes about treatment that apply in the circumstances;
• An application by a substitute decision-maker for authority to depart from the incapable person's prior capable wishes;
• An application by a health practitioner to determine whether or not a substitute decision-maker is in compliance with the rules for substituted decision-making.

Bill 68 (Mental Health Legislative Reform) 2000 permits a health practitioner to make the applications concerning whether or not the incapable person has prior capable wishes or to give the substitute authority to depart from such wishes.

In addition, the Act permits the Consent and Capacity Board to consider the issue of the patient's capacity to consent to treatment, when an application is made to the Board concerning the issues above, if the incapable person has not done so within the previous 6 months.

3.   Amendments to the Part III (Admission to Care Facilities) and Part IV (Personal Assistance Services)

The parts of the Act dealing with admission to care facilities and personal assistance services contain provisions which mirror the incapacity, hearing and appeal rules governing treatment.

These provisions were amended to mirror changes to the hearing and appeal provisions in the treatment sections of the Health Care Consent Act, 1996.