OVERVIEW OF LEGISLATION RELEVANT TO MENTAL HEALTH CARE IN ONTARIO
We are fortunate to be writing this Toolkit at a time when mental illness is receiving much needed attention in Ontario and across Canada.
In March 2007, the federal government appointed Senator Michael Kirby to chair the Mental Health Commission of Canada and charged the Commission with the task of developing a national strategy for setting priorities and coordinating services in mental health care. In May 2012, the Commission released a long awaited national mental health strategy: "Changing Directions, Changing Lives: A Mental Health Strategy for Canada".1 With its ongoing mandate, the Commission continues to work towards improving access to mental healthcare in Canada, with such initiatives as the Knowledge Exchange Centre to ensure the public dissemination of the Commission's research, programs, guidelines and tools.2
In June 2011, the Ontario government launched a mental health and addictions strategy, entitled "Open Minds, Healthy Minds".3 The strategy focuses on providing children and youth with greater access to mental health and addiction services. In November 2014, the strategy was expanded to support the transition between youth and adult services and to improve the quality of services for Ontarians of all ages, through the funding of certain initiatives.4 While there is still much work to be done, at present, the provincial government appears committed to improving access to mental health and addiction services as a core priority.
Mental health care is regulated by both provincial and federal legislation. Generally, under Canada's Constitution, health is considered a provincial matter, while the criminal law is a federal concern. The ways in which these two levels of governmental power overlap creates tension as the criteria for involuntary admission under the civil law of the province differs from the law governing the detention and eventual release into the community of the mentally disordered criminal offender. At the same time, the civil and forensic regimes look to the province's mental health care system to support the needs of mentally ill persons that each regime strives to address.
As noted in "Changing Directions, Changing Lives", in any given year, one in five people in Canada experiences a mental health problem or illness, with a cost to the economy of well in excess of $50-billion.
The intersection of law and medicine is never far below the surface when a patient and the health care team are discussing options for treatment. Ontario's law of consent to treatment, for example, has been designed to apply universally to all types of treatment in a wide variety of settings. Regardless of whether the setting is an out-patient clinic or a specialized psychiatric facility, there are special considerations in the mental health care context that we will address in this Toolkit. As one author has pointed out:
The treatment of psychiatric patients raises legal issues that ordinarily do not arise in the treatment of other illnesses. The fact that patients are often detained against their will places a high priority on the protection of individual rights within the treatment facility. Consequently, administrators and health professionals who work in the mental health field must be as sensitive to legal issues as they are to medical issues. Decisions about treatment of psychiatric patients will often receive a high degree of scrutiny from tribunals or boards charged under the provincial legislation with the review of such decisions. For courts and tribunals, the question whether treatment is authorized by law may eclipse any question about the quality of the treatment administered and whether or not it was effective. This is because courts and tribunals are concerned with process issues. If the process is inadequate, there is likely to be negative comments on the health care providers and institution regardless of the outcome for the patient.5
In Ontario, mental health care practitioners must be familiar with the legislation that governs treatment decisions and involuntary hospitalization. There are a multitude of procedural requirements and rights that apply when patients are incapable of making treatment decisions for themselves and where patients require admission to a psychiatric facility, whether on a voluntary, informal or involuntary basis.
The goal of this Toolkit is to provide health care providers and administrators with an overview of the legislative scheme governing mental health care in Ontario that is sufficiently detailed to use as a desk-top resource. In this 2016 edition, we have updated the Toolkit to reflect noteworthy developments in Ontario's mental health law since the second edition was released in October 2012.
2. Historical Development and Context
On January 26, 1850, Ontario's first Provincial Lunatic Asylum opened its doors on the location of what is now known as the Queen Street Site of the Centre for Addiction and Mental Health. Upper Canada, which later became Ontario, was a colony of the United Kingdom, imported the approach set out in the County Asylums Act, a statute passed by the British House of Commons in the year 1813, which provided for the establishment of institutions for care of the mentally ill.6 Following the opening of Ontario's first Asylum, other provincial public mental hospitals were opened to provide treatment and custody for the seriously mentally ill. For many years, Ontario's Mental Hospitals Act governed such facilities.
The courts reviewed admission and discharge decisions into designated mental hospitals until 1933, when the legislation changed to allow for any two physicians to authorize the admission of a mentally ill person, with no involvement of the judicial system. The legislation did not provide for the review of the committal decision unless the patient brought a writ of habeas corpus to the Court for the purpose of challenging the lawfulness of the detention and seeking a court order requiring the patient to be released.7
In the early 1960s, with the introduction of new medications for treating mental illness, it became possible to reduce or control symptoms to the extent that patients could be discharged into the community to settings such as Homes for Special Care, or as out-patients monitored by acute care, hospital based psychiatric teams.8 The introduction of universal health insurance in Ontario in 1972, for example, resulted in a "fourfold increase in the utilization of psychiatric services."9
During the last several decades, a number of legislative developments have had a significant impact on the mental health system in Ontario.
Another significant development was the amendment in 1968 of the Mental Health Act ("MHA"), which provided for the admissions of persons to a psychiatric hospital based on criteria of "dangerousness", and where the person required hospitalization "in the interests of his/her own safety or the safety of others". The MHA also established a tribunal that could review the committal, if the patient requested.10
In 1978, the MHA was amended to include criteria for involuntary admission where the person was suffering from a mental disorder and was at risk of "imminent and serious physical impairment of the person." Although the "imminent" criteria only applied to the physical impairment of the patient, the view that it also applied to the dangerousness criteria was widely held and persists today, even after the removal of the word "imminent" from the legislation when it underwent further reform in 2000. As government publications have noted, "the 'imminent' requirement often prevented people who were deteriorating from getting the treatment they needed at an earlier stage."11
In the 1990s, the MHA was again amended to protect patients' legal rights by requiring that rights advice be delivered to patients in certain circumstances and by imposing obligations on hospital administrators to ensure that procedures associated with involuntary admissions were followed.12
Up until the 1990s, treatment decisions were not the subject of legislation. Treatment of incompetent persons was based on the directions of the family, or, on the clinical opinion of the treating physician.13 The Crown had the ultimate responsibility for the treatment of incompetent adults as there were no principles in the common law that provided for an individual substitute decision maker to have priority over the Crown. In fact, health practitioners could be liable to patients for the common law tort of battery, if they treated incompetent adults without court authorized consent.14
Consent to treatment legislation, which was introduced in the 1990s, represented a significant shift away from global findings of incompetency to a more nuanced approach to capacity that recognized that capacity could fluctuate with respect to both time and treatment. The legislation began as the Consent to Treatment Act in 1992, and later evolved into the Health Care Consent Act ("HCCA").15
The law set out in the HCCA essentially codifies the common law requirement that health care practitioners obtain capable, informed and voluntary consent prior to proceeding with treatment. The HCCA rules on consent to treatment are applicable universally in all health care settings, and therefore, apply to mentally ill patients in psychiatric facilities. Further, the HCCA establishes that patients may challenge findings of incapacity by applying to the provincial CCB for a review of the finding. If the CCB confirms the health care provider's finding of incapacity, the patient has a right of further review or appeal to the courts.16
The issue of capacity to manage property arises regularly in the provision of mental health care, particularly upon admission to a psychiatric facility. For many years, Ontario had a Mental Incompetency Act ("MIA"),17 which provided for a global finding of mental incompetency, based on evidence that a person was suffering from either developmental delay or brain injury or a mental disorder of such a nature that the person required care and supervision for his or her protection. Once such a global finding had been made, the MIA called for the establishment of a "committee" that would oversee the person's property. This Act was eventually repealed in 1995.
The Substitute Decisions Act ("SDA") came into force in 1992. It provides the procedure by which a person's capacity to manage property or to make personal care decisions may be assessed.18 It also provides the criteria that must be met in order for the Public Guardian and Trustee ("PGT") or someone else to become a person's guardian, in the event that the person is found incapable. Further, it sets out the legal framework for granting power to an "attorney" of the person's choosing, in the event of his or her incapacity to manage property or to make personal care decisions.
Following the provincial government's 1998 review of Ontario's mental health related legislation,19 amendments were made to the MHA to address the "revolving door syndrome". This "syndrome" saw a patient admitted to a hospital in crisis, treated under substitute consent until the crisis passed, and then discharged to the community where insufficient out-patient resources lead to the patient's eventual non-compliance, deterioration and return to hospital for a further involuntary admission. The amendments included a new ground for civil commitment: substantial mental or physical deterioration that would likely arise if the person were not treated. This ground is now known as the "Box B" criteria and may be used as the basis for a preliminary "Form 1" application for psychiatric assessment, as well as an involuntary admission.
Notably, the amendments to the MHA in 2000 also established Community Treatment Orders ("CTOs"), which provide a structure for the treatment of persons with mental illness in the community, rather than in a psychiatric facility, if certain criteria are met.20 More recently in December 2015, the MHA was amended to provide the Consent and Capacity Board ("CCB") with the authority to order certain terms and conditions under which long-term involuntarily admitted patients are detained under what are now called certificates of continuation. The December 2015 amendments also amended the provisions dealing with CCB's power to order a long-term involuntarily admitted patient to be transferred from one psychiatric facility to another.21
The legislative scheme governing the provision of mental health care in Ontario continued to evolve with the introduction in 2004 of the Personal Health Information Protection Act ("PHIPA"). This legislation sets out comprehensive rules for the collection, use and disclosure of personal health information in a manner that provides for the consistent protection of confidentiality of personal health information, while also facilitating the effective provision of health care. PHIPA, in large measure, replaced and amended some of the specific provisions that governed clinical psychiatric records in prior versions of the MHA. However, there remain notable exceptions that allow the "privacy" provisions of the MHA to take precedence over the provisions of PHIPA.22
The two administrative tribunals that most frequently hear matters concerning the rights of mentally ill persons are the CCB and the Ontario Review Board ("ORB"). The CCB has jurisdiction to hear matters under a number of Ontario statutes: The HCCA, the MHA, the SDA, the PHIPA, and more recently, the Mandatory Blood Testing Act, 200623. Because health care providers are frequently called upon to appear before the CCB to defend findings of incapacity to consent to treatment, as well as involuntary admissions and admission to long term care, we have devoted Chapter 5 to hearings before the CCB.
The ORB is an administrative tribunal established pursuant to Part XX.I of the Criminal Code of Canada ("Criminal Code") to have jurisdiction over criminally accused persons who have been found unfit to stand trial or who have been found not criminally responsible on account of mental disorder.24 Prior to 1992, criminally accused persons had available to them the common law defence of insanity, which was recognized in Section 16 of the Criminal Code. Other provisions of the Criminal Code allowed those found unfit to stand trial or found not guilty by reason of insanity to be automatically detained in custody at the discretion of the Lieutenant-Governor of the province. Following the enactment of the Canadian Charter of Rights and Freedoms25, those provisions of the Criminal Code were challenged and found by the Supreme Court of Canada to be unconstitutional, leading to the reform which gave rise to the current system under Part XX.I.26 We will address ORB hearings within Chapter 6, which deals with the forensic psychiatric system and mentally disordered offender.
1 This Mental Health Commission of Canada strategy document can be found online at: http://strategy.mentalhealthcommission.ca/pdf/strategy-images-en.pdf.
2 Knowledge Exchange Centre: Interim Report (Mental Health Commission of Canada, May 2014), at p. 5; the Report may be accessed at http://www.mentalhealthcommission.ca/English/initiatives-and-projects/knowledge-exchange-centre.
3 Ontario, Open Minds, Healthy Minds: Ontario's Comprehensive Mental Health and Addictions Strategy (Ontario Government): http://www.health.gov.on.ca/en/common/ministry/publications/reports/mental_health2011/mentalhealth_rep2011.pdf.
4 Ontario, "Ontario Expanding Strategy to Address Mental Health Issues", News Release, November 25, 2014, available at: https://news.ontario.ca/mohltc/en/2014/11/ontario-expanding-strategy-to-address-mental-health-issues.html.
5 John J. Morris and Cynthia D. Clarke, Law for Canadian Health Care Administrators, 2nd ed, (LexisNexis, 2011) at 151-152.
6 Michael Bay, "1933-2003: Lessons from 70 Years of Experience with Mental Health, Capacity and Consent Legislation in Ontario" (2005) 24 Health Law in Canada 3 at 36 – 43.
7 Ibid at 36-37.
8 Ontario, Ministry of Health and Long Term Care, Dan Newman MPP, Mental Health 2000 and Beyond: Strengthening Ontario's Mental Health System: A Report on the Consultative Review of Mental Health Reform in the Province of Ontario, (June 1998).
10 Mental Health Act Amendments, SO 1967, c 51, s. 8; see also, Michael Bay, supra note 6 at 38.
11 Ontario, Ministry of Health and Long Term Care, Mental Health: Bill 68 (Mental Health Legislative Reform), 2000" online: MHLTC http://www.health.gov.on.ca/en/public/publications/mental/treatment_order.aspx .
12 Michael Bay, supra note 6 at 38.
13 Ontario, Enquiry on Mental Competency, Enquiry on Mental Competency: Final Report, (Toronto: Queens Printer for Ontario, 1990) at 306 (Chairman: Professor David Weisstub).
14 John J. Morris, "Substitute Decision Makers: Who has Authority to make the Decisions?" (Conference paper, 6 June 1996) [Unpublished]; Citing Re Eve,  2 SCR 388 at 12.
15 Health Care Consent Act, SO 1996, c 2, Sch A., [HCCA].
16 A more detailed discussion of the law relating to consent to treatment and the jurisdiction of the Consent and Capacity Board, including practical issues related to appearing before the Board, is set out in Chapters 2 and 5 respectively.
17 RSO 1990, Chapter M 9, repealed on April 3, 1995.
18 Substitute Decisions Act, 1992, SO 1992, c 30.
19 Dan Newman, supra note 8.
20 We discuss the Mental Health Act, and the law governing psychiatric patient admissions, including voluntary, informal and involuntary admissions, as well as community treatment orders in Chapter 3. For a discussion of the amendments which led to Community Treatment Orders, see: http://health.gov.on.ca/en/public/publications/pub_mental.aspx; accessed March, 2016.
21 Bill 122, Mental Health Statute Law Amendment Act, 2015; online: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3453.
22 Privacy of personal health information in mental health care is discussed in Chapter 7 in greater detail.
23 Mandatory Blood Testing Act 2006, SO 2006, C 26.
24 Criminal Code of Canada RSC, 1985, c C 46 (the "Criminal Code").
25 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the "Charter").
26 The case which considered and decided the constitutionality of the former regime was R v Swain,  1 SCR 933.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.