Mental Health and the Law

Mental Health and the Law

By Ramon Andal, LL.B., J.D.

Presentation to the Philippine Press Club of Ontario

It was not very long ago that the stigma surrounding mental illness kept it out of the public view. The mental asylum was seen as the place where a person with an illness would be isolated from the world and have his liberty and dignity taken from him. Attitudes have slowly changed.

The law relating to mental health seeks to strike a balance between, on the one hand, a person’s liberty and autonomy, and on the other hand, the interests of society that persons who are at risk of suffering or causing serious bodily harm, or who are mentally incapable, and are at risk of suffering substantial mental or physical deterioration, receive the treatment they need.

The Mental Health Act provides the conditions for the admission of a patient to a psychiatric facility. A person may be admitted as a voluntary patient if he is in need of observation, care and treatment. The facility does not have the authority to detain or to restrain a voluntary patient.

A person can be detained for 72 hours to undergo psychiatric assessment where a physician hasreasonable cause to believe that he is behaving violently or threatening bodily harm to himself or another, or is showing a lack of competence to care for himself, and that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(a) serious bodily harm to the person;

(b) serious bodily harm to another person; or

(c) serious physical impairment of the person.

An assessment can also be ordered where the physician has reasonable cause to believe that a 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, and the person is incapable of consenting to his treatment in a psychiatric facility.

A psychiatric assessment can also be obtained by applying to a Justice of the Peace, or by police.

If the assessing physician confirms that these conditions exist, he can admit the person as an involuntary patient under a Form 3 Certificate. The certificate expires after two weeks but may be renewed if the conditions still exist. The physician must promptly notify the patient of the certificate, and promptly notify a rights adviser, who must meet with the patient and explain the significance of the certificate, and the right to have it reviewed by the Consent and Capacity Board (CCB).

The physician who admits a person to a psychiatric facility must also assess the person’s capacity to manage his property. If the person is found incapable, then his property will be managed by his attorney under a power of attorney, guardian for property, or the Public Guardian and Trustee.

The patient may apply to the CCB to promptly review his status to determine whether or not the prerequisites for admission as an involuntary patient continue to be met at the time of the hearing of the application. By law, the CCB must hold the hearing within seven days. The CCB panel usually consists of a psychiatrist, a community member, and a presiding lawyer member. The psychiatrist has the onus of proving that the requirements of the legislation are met as of the time of the hearing. The CCB may confirm or rescind the certificate.

If the involuntary patient was also found to be mentally incapable of consenting to treatment, or incapable of managing his property, he can apply to have those findings, along with his involuntary status, reviewed by the CCB at the same hearing. Treatment cannot be commenced pending the determination by the CCB.

This brings me to the Health Care Consent Act. The purposes of the HCCA are, among others:

(a) to provide rules with respect to consent to treatment that apply consistently in all settings;

(b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters;

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,

(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding,

(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to.

A health practitioner who proposes a treatment shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, he is of the opinion that the person is capable with respect to the treatment, and the person has given consent. The following are the elements required for consent to treatment:

1. The consent must relate to the treatment.

2. The consent must be informed.

3. The consent must be given voluntarily.

A person is presumed to be capable. If the health practitioner is of the opinion that the person is incapable with respect to the treatment, treatment must not commence until the person’s substitute decision-maker has given consent on the person’s behalf.

The legal test for capacity with respect to treatment is twofold:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

The leading case on the capacity test is Starson v. Swayze, by the Supreme Court of Canada. The Court declared that with respect to the capacity test,

First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. ..  While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. . .

As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms.  Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition.  Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. . . .

In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made:  the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment.  If the patient shows an appreciation of these parameters — regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation — he has the ability to appreciate the decision he makes. . .

If a person is found incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person according to the following priorities:

1. The person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person’s representative appointed by the Board, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person’s spouse or partner.

5. A child or parent of the incapable person.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person.

A person may give or refuse consent only if he,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent

The substitute decision maker must give or refuse consent in accordance with the known wishes of the incapable person, or if those wishes are unknown, the person shall act in the incapable person’s best interests.   The legislation sets out the guidelines of what constitutes best interests. The substitute decision maker may apply to the CCB for directions as to the wishes.

In Cuthbertson v. Rasouli, the Supreme Court of Canada, in a split decision, determined that removing a person’s life support was part of treatment, and that the consent of the family as the patient’s substitute decision maker, was required. If the doctors did not agree that maintaining the life support was in his best interests, they could apply to the CCB for determination whether the refusal to consent to the withdrawal complied with the criteria for best interests.

In summary, the mental health legislation provides patients with rights and remedies which protect their liberty and autonomy, while giving health practitioners, family members, and substitute decision makers the guidelines for determining and administering treatment options for incapable persons who need treatment or those who are at risk of causing or suffering serious bodily harm because of a mental disorder.

Ramon V. Andal, LL.B., J.D.
Andal Law Office
1715 Lakeshore Road West
Suite 204A
Mississauga, Ontario
L5J 1J4
Tel. 905-822-0723
Fax 905-822-3405
Email ramon@andallaw.com
Website: www.andallaw.com