Bill 68, Brian's Law (Mental Health Legislative Reform), 2000

Witmer, Hon Elizabeth Minister of Health and Long-Term Care

Current Status: Royal Assent received Chapter Number: S.O. 2000 C.9

Viewing: Royal Assent (current version) pdf

Bill 68

Bill 682000

An Act, in memory of

Brian Smith, to amend the

Mental Health Act and the

Health Care Consent Act, 1996

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Part I

Mental Health Act

1.(1)The English version of the definition of "attending physician" in subsection 1 (1) of the Mental Health Act is amended by striking out "means the physician" and substituting "means a physician".

(2)Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20 and 1996, chapter 2, section 72, is further amended by adding the following definition: "

community treatment plan" means a plan described in section 33.7 that is a required part of a community treatment order. ("plan de traitement en milieu communautaire")

(3)The definition of "Deputy Minister" in subsection 1 (1) of the Act is repealed and the following substituted: "

Deputy Minister" means the deputy minister of the Minister. ("sous-ministre")

(4)Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20 and 1996, chapter 2, section 72, is further amended by adding the following definition: "

health practitioner" has the same meaning as in the Health Care Consent Act, 1996. ("praticien de la sant")

(5)The definitions of "Minister" and "Ministry" in subsection 1 (1) of the Act are repealed and the following substituted: "

Minister" means the Minister of Health and Long-Term Care or such other member of the Executive Council as the Lieutenant Governor in Council designates; ("ministre") "

Ministry" means the Ministry of the Minister. ("ministre")

(6)The definition of "physician" in subsection 1 (1) of the Act is repealed and the following substituted. "

physician" means a legally qualified medical practitioner and, when referring to a community treatment order, means a legally qualified medical practitioner who meets the qualifications prescribed in the regulations for the issuing or renewing of a community treatment order. ("mdecin")

(7)Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20 and 1996, chapter 2, section 72, is further amended by adding the following definition: "

plan of treatment" has the same meaning as in the Health Care Consent Act, 1996. ("plan de traitement")

(8)The definition of "psychiatric facility" in subsection 1 (1) of the Act is repealed and the following substituted: "

psychiatric facility" means a facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister. ("tablissement psychiatrique")

(9)The definition of "rights adviser" in subsection 1 (1) of the Act, as re-enacted by the Statutes of Ontario, 1996, chapter 2, section 72, is repealed and the following substituted: "

rights adviser" means 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 the rights advice is to be given, or

(b)a person providing treatment or care and supervision under a community treatment plan. ("conseiller en matire de droits")

(10)Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20 and 1996, chapter 2, section 72, is further amended by adding the following definition: "

treatment" has the same meaning as in the Health Care Consent Act, 1996. ("traitement")

2.(1)Subsection 13 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by striking out "in the prescribed form" and substituting "in the approved form".

(2)Subsection 13 (2) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by striking out "in the prescribed form" and substituting "in the approved form".

3.(1)Clause 15 (1) (f) of the Act is amended by striking out "imminent and" at the beginning.

(2)Section 15 of the Act is amended by adding the following subsection:

Same

(1.1)Where a physician examines a person and has reasonable cause to believe that the person,

(a)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

(b)has shown clinical improvement as a result of the treatment,

and if in addition the physician is of the opinion that the person,

(c)is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d)given the person's history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and

(e)is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained,

the physician may make application in the prescribed form for a psychiatric assessment of the person.

(3)Subsection 15 (2) of the Act is amended by striking out "An application under subsection (1)" at the beginning and substituting "An application under subsection (1) or (1.1)".

(4)Subsection 15 (3) of the Act is amended by striking out "A physician who signs an application under subsection (1)" at the beginning and substituting "A physician who signs an application under subsection (1) or (1.1)".

(5)Subsection 15 (4) of the Act is amended by striking out "An application under subsection (1)" at the beginning and substituting "An application under subsection (1) or (1.1)".

(6)Subsection 15 (5) of the Act is amended by striking out "An application under subsection (1)" at the beginning and substituting "An application under subsection (1) or (1.1)".

4.(1)Clause 16 (1) (f) of the Act is amended by striking out "imminent and" at the beginning.

(2)Section 16 of the Act is amended by adding the following subsection:

Same

(1.1)Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,

(a)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

(b)has shown clinical improvement as a result of the treatment,

and in addition based upon the information before him or her the justice of the peace has reasonable cause to believe that the person,

(c)is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d)given the person's history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and

(e)is apparently incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained,

the justice of the peace may issue an order in the prescribed form for the examination of the person by a physician.

(3)Subsection 16 (2) of the Act is amended by striking out "or other peace officers" after "police officers".

(4)Subsection 16 (3) of the Act is amended by striking out "or other peace officer" after "police officer".

(5)Section 16 of the Act is amended by adding the following subsection:

Manner of bringing information before justice

(4)For the purposes of this section, information shall be brought before a justice of the peace in the prescribed manner.

5.Section 17 of the Act is repealed and the following substituted:

Action by police officer

17.Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

(a)has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b)has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c)has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d)serious bodily harm to the person;

(e)serious bodily harm to another person; or

(f)serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

6.Section 19 of the Act is amended by striking out "Subject to subsection 20 (5)" at the beginning and substituting "Subject to subsections 20 (1.1) and (5)".

7.(1)Clause 20 (1) (c) of the Act is repealed and the following substituted:

(c)shall admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in subsection (1.1) or (5) are met.

(2)Section 20 of the Act is amended by adding the following subsection:

Conditions for involuntary admission

(1.1)The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion that the patient,

(a)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;

(b)has shown clinical improvement as a result of the treatment;

(c)is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d)given the person's history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;

(e)has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and

(f)is not suitable for admission or continuation as an informal or voluntary patient.

(3)Subsection 20 (5) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Conditions for involuntary admission

(5)The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion both,

. . . . .

(4)Subclause 20 (5) (a) (iii) of the Act is amended by striking out "imminent and" at the beginning.

(5)Subsection 20 (7) of the Act is amended by striking out "upon completion of the prescribed form by the attending physician" at the end and substituting "upon completion of the approved form by the attending physician".

(6)Subsection 20 (8) of the Act is amended by striking out "in accordance with subsections (1) and (2)" and substituting "in accordance with this section".

8.Section 25 of the Act is repealed and the following substituted:

Detention under the Criminal Code (Canada)

25.Any person who is detained in a psychiatric facility under Part XX.1 of the Criminal Code (Canada) may be restrained, observed and examined under this Act and provided with treatment under the Health Care Consent Act, 1996.

9.Section 27 of the Act is repealed and the following substituted:

Leave of absence

27.(1)The attending physician may, subject to subsection (3), place a patient on a leave of absence from the psychiatric facility for a designated period of not more than three months if the intention is that the patient shall return to the facility.

Same

(2)The officer in charge may, upon the advice of the attending physician, place a patient on a leave of absence from the psychiatric facility for a designated period of not more than three months.

Terms and conditions

(3)The attending physician and the patient shall comply with such terms and conditions for the leave of absence as the officer in charge may prescribe.

Exception

(4)This section does not authorize the placing of a patient on a leave of absence where he or she is subject to detention otherwise than under this Act.

10.Subsection 28 (1) of the Act is repealed and the following substituted:

Unauthorized absence

(1)Where a person who is subject to detention is absent without leave from a psychiatric facility, a police officer or any other person to whom the officer in charge has issued an order for return shall make reasonable attempts to return the person and may, within one month after the absence becomes known to the officer in charge, return the person to the psychiatric facility or take the person to the psychiatric facility nearest to the place where the person is apprehended.

11.Subsection 29 (1) of the Act is amended by striking out "in the prescribed form" at the end and substituting "in the approved form".

12.Section 31 of the Act is amended by striking out "in the prescribed form" and substituting "in the approved form".

13.Section 32 of the Act is amended by adding the following subsection:

Delegation of Minister's powers

(2)The Minister may, in writing, delegate his or her powers under subsection (1) to the Deputy Minister or to any officer or officers of the Ministry subject to such limitations, conditions and requirements as the Minister may set out in the delegation.

14.Section 33 of the Act is repealed and the following substituted:

Duty to remain and retain custody

33.A police officer or other person who takes a person in custody to a psychiatric facility shall remain at the facility and retain custody of the person until the facility takes custody of him or her in the prescribed manner.

15.The Act is amended by adding the following sections:

Community treatment order

33.1(1)A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

Same

(2)The community treatment order must be in the prescribed form.

Purposes

(3)The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person's condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

Criteria for order

(4)A physician may issue or renew a community treatment order under this section if,

(a)during the previous three-year period, the person,

(i)has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii)has been the subject of a previous community treatment order under this section;

(b)the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person's treatment or care and supervision have developed a community treatment plan for the person;

(c)within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i)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,

(ii)the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii)if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv)the person is able to comply with the community treatment plan contained in the community treatment order, and

(v)the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d)the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e)subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f)the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

Exception

(5)Clause (4) (e) does not apply to the person subject to the order if the person himself or herself refuses to consult with a rights adviser and the rights adviser so informs the physician.

Content of order

(6)A community treatment order shall indicate,

(a)the date of the examination referred to in clause (4) (c);

(b)the facts on which the physician formed the opinion referred to in clause (4) (c);

(c)a description of the community treatment plan referred to in clause (4) (b); and

(d)an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person's substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations.

Protection from liability, substitute decision-maker

(7)The substitute decision-maker who, in good faith, uses his or her best efforts to ensure the person's compliance and believes, on reasonable grounds, that the person is in compliance is not liable for any default or neglect of the person in complying.

Legal advice

(8)The person who is being considered for a community treatment order, or who is subject to such an order, and that person's substitute decision-maker, if any, have a right to retain and instruct counsel and to be informed of that right.

Obligations of person

(9)If a person or his or her substitute decision-maker consents to a community treatment plan under this section, the person shall,

(a)attend appointments with the physician who issued or renewed the community treatment order, or with any other health practitioner or other person referred to in the community treatment plan, at the times and places scheduled from time to time; and

(b)comply with the community treatment plan described in the community treatment order.

To whom copies of order and plan to be given

(10)The physician who issues or renews a community treatment order under this section shall ensure that a copy of the order, including the community treatment plan, is given to,

(a)the person, along with a notice that he or she has a right to a hearing before the Board under section 39.1;

(b)the person's substitute decision-maker, where applicable;

(c)the officer in charge, where applicable; and

(d)any other health practitioner or other person named in the community treatment plan.

Expiry of order

(11)A community treatment order expires six months after the day it is made unless,

(a)it is renewed in accordance with subsection (12); or

(b)it is terminated earlier in accordance with section 33.2, 33.3 or 33.4.

Renewals

(12)A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry.

Subsequent plans

(13)Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent community treatment plan if the criteria set out in subsection (4) are met.

Early termination of order pursuant to request

33.2(1)At the request of a person who is subject to a community treatment order or of his or her substitute decision-maker, the physician who issued or renewed the order shall review the person's condition to determine if the person is able to continue to live in the community without being subject to the order.

Same

(2)If the physician determines, upon reviewing the person's condition, that the circumstances described in subclauses 33.1 (4) (c) (i), (ii) and (iii) no longer exist, the physician shall,

(a)terminate the community treatment order;

(b)notify the person that he or she may live in the community without being subject to the community treatment order; and

(c)notify the persons referred to in clauses 33.1 (10) (b), (c) and (d) that the community treatment order has been terminated.

Early termination of order for failure to comply

33.3(1)If a physician who issued or renewed a community treatment order has reasonable cause to believe that the person subject to the order has failed to comply with his or her obligations under subsection 33.1 (9), the physician may, subject to subsection (2), issue an order for examination of the person in the prescribed form.

Conditions for issuing order for examination

(2)The physician shall not issue an order for examination under subsection (1) unless,

(a)he or she has reasonable cause to believe that the criteria set out in subclauses 33.1 (4) (c) (i), (ii) and (iii) continue to be met; and

(b)reasonable efforts have been made to,

(i)locate the person,

(ii)inform the person of the failure to comply or, if the person is incapable within the meaning of the Health Care Consent Act, 1996, inform the person's substitute decision-maker of the failure,

(iii)inform the person or the substitute decision-maker of the possibility that the physician may issue an order for examination and of the possible consequences; and

(iv)provide assistance to the person to comply with the terms of the order.

Return to physician

(3)An order for examination issued under subsection (1) is sufficient authority, for 30 days after it is issued, for a police officer to take the person named in it into custody and then promptly to the physician who issued the order.

Assessment on return

(4)The physician shall promptly examine the person to determine whether,

(a)the physician should make an application for a psychiatric assessment of the person under section 15;

(b)the physician should issue another community treatment order where the person, or his or her substitute decision-maker, consents to the community treatment plan; or

(c)the person should be released without being subject to a community treatment order.

Early termination of order on withdrawal of consent

33.4(1)A person who is subject to a community treatment order, or his or her substitute decision-maker, may withdraw his or her consent to the community treatment plan by giving the physician who issued or renewed the order a notice of intention to withdraw consent.

Duty of physician

(2)Within 72 hours after receipt of the notice, the physician shall review the person's condition to determine if the person is able to continue to live in the community without being subject to the order.

Order for examination

(3)If the person subject to the community treatment order fails to permit the physician to review his or her condition, the physician may, within the 72-hour period, issue in the prescribed form an order for examination of the person if he or she has reasonable cause to believe that the criteria set out in subclauses 33.1 (4) (c) (i), (ii) and (iii) continue to be met.

Return to physician

(4)An order for examination issued under subsection (3) is sufficient authority, for 30 days after it is issued, for a police officer to take the person named in it into custody and then promptly to the physician who issued the order.

Assessment on return

(5)The physician shall promptly examine the person to determine whether,

(a)the physician should make an application for a psychiatric assessment of the person under section 15;

(b)the physician should issue another community treatment order where the person, or his or her substitute decision-maker, consents to the community treatment plan; or

(c)the person should be released without being subject to a community treatment order.

Accountability

33.5(1)A physician who issues or renews a community treatment order, or a physician who is appointed under subsection (2), is responsible for the general supervision and management of the order.

Appointment of other physician

(2)If the physician who issues or renews a community treatment order is absent or, for any other reason, is unable to carry out his or her responsibilities under subsection (1) or under section 33.2, 33.3 or 33.4, the physician may appoint another physician to act in his or her place, with the consent of that physician.

Responsibility, named providers

(3)A person who agrees to provide treatment or care and supervision under a community treatment plan shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan.

Responsibility of other persons

(4)All persons named in a community treatment plan, including the person subject to the plan and the person's substitute decision-maker, if any, are responsible for implementing the plan to the extent indicated in it.

Protection from liability, issuing physician

33.6 (1)If the physician who issues or renews a community treatment order or a physician appointed under subsection 33.5 (2) believes, on reasonable grounds and in good faith, that the persons who are responsible for providing treatment or care and supervision under a community treatment plan are doing so in accordance with the plan, the physician is not liable for any default or neglect by those persons in providing the treatment or care and supervision.

Same, other persons involved in treatment

(2)If a person who is responsible for providing an aspect of treatment or care and supervision under a community treatment plan believes, on reasonable grounds and in good faith, that a person who is responsible for providing another aspect of treatment or care and supervision under the plan is doing so in accordance with the plan, the person is not liable for any default or neglect by that person in providing that aspect of treatment or care and supervision.

Same, physician

(3)If a person who is responsible for providing an aspect of treatment or care and supervision under a community treatment plan believes, on reasonable grounds and in good faith, that the physician who issued or renewed the community treatment order or a physician appointed under subsection 33.5 (2) is providing treatment or care and supervision in accordance with the plan, the person is not liable for any default or neglect by the physician in providing the treatment or care and supervision.

Reports

(4)The physician who issues or renews a community treatment order or a physician appointed under subsection 33.5 (2) may require reports on the condition of the person subject to the order from the persons who are responsible for providing treatment or care and supervision under the community treatment plan.

Community treatment plans

33.7A community treatment plan shall contain at least the following:

1.A plan of treatment for the person subject to the community treatment order.

2.Any conditions relating to the treatment or care and supervision of the person.

3.The obligations of the person subject to the community treatment order.

4.The obligations of the substitute decision-maker, if any.

5.The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).

6.The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan.

No limitation

33.8Nothing in sections 33.1 to 33.7 prevents a physician, a justice of the peace or a police officer from taking any of the actions that they may take under section 15, 16, 17 or 20.

Review

33.9(1)The Minister shall establish a process to review the following matters:

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.

First review

(2)The first review must be undertaken during the third year after the date on which subsection 33.1 (1) comes into force.

Subsequent reviews

(3)A review must be completed every five years after the first review is completed.

Report

(4)The Minister shall make available to the public for inspection the written report of the person conducting each review.

16.Subsection 35 (3) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20 and 1996, chapter 2, section 72, is further amended by adding the following clause:

(d.1)a physician who is considering issuing or renewing, or who has issued or renewed, a community treatment order under section 33.1, a physician appointed under subsection 33.5 (2) or another person named in a person's community treatment plan as being involved in the person's treatment or care and supervision upon the written request of the physician or other named person.

17.The Act is amended by adding the following section:

Consultation permitted

35.1(1)Despite any other Act or the regulations made under any other Act, a physician who is considering issuing or renewing a community treatment order with respect to a person may consult with a member of a regulated health profession or of the Ontario College of Social Workers and Social Service Workers or any other person to determine whether the order should be issued or renewed.

Sharing of information

(2)Despite any other Act or the regulations made under any other Act, a member of a regulated health profession acting within the scope of practice of his or her profession or a member of the Ontario College of Social Workers and Social Service Workers or any other person named in a community treatment plan as participating in the treatment or care and supervision of a person who is subject to the order may share information with each other relating to the person's mental or physical condition for the purpose of treating, caring for and supervising the person in accordance with the plan.

Disclosure

(3)Except as provided in subsection (1), no person shall disclose the fact that a person is being considered for or is subject to a community treatment order without the consent of the person or the person's substitute decision-maker.

Prohibition

(4)A person who receives personal information under subsection (1) or (2) shall not disclose that information except in accordance with this section.

Definition

(5)In this section, "

regulated health profession" means a health profession set out in Schedule 1 of the Regulated Health Professions Act, 1991.

18.Subsection 36 (14) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20 and 1996, chapter 2, section 72, is further amended by striking out "in the prescribed form" and substituting "in the approved form".

19.Paragraph 1 of subsection 36.1 (4) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

20.Subsection 36.2 (2) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

21.(1)Subsection 39 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Application for review by patient, etc.

(1)An involuntary patient, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the prerequisites set out in this Act for admission or continuation as an involuntary patient are met.

(2)Subsection 39 (2) of the Act is repealed and the following substituted:

When application may be made

(2)In addition to the applications under subsection (4), an application under subsection (1) may be made,

(a)when a certificate of involuntary admission respecting the patient comes into force; or

(b)when any certificate of renewal respecting the patient comes into force.

(3)Subsection 39 (4) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Where notice deemed to have been given

(4)On the completion of a fourth certificate of renewal and on the completion of every fourth certificate of renewal thereafter, the patient shall be deemed to have applied in the approved form under subsection (1) to the Board unless he or she has already applied under clause (2) (b).

22.The Act is amended by adding the following section:

Application for review by person subject to community treatment order

39.1(1)A person who is subject to a community treatment order, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the criteria for issuing or renewing a community treatment order set out in subsection 33.1 (4) are met.

When application may be made

(2)An application under subsection (1) may be made each time a community treatment order is issued or renewed under section 33.1.

Deemed application

(3)When a community treatment order is renewed for the second time and on the occasion of every second renewal thereafter, the person shall be deemed to have applied to the Board in the approved form under subsection (1) unless an application has already been made under that subsection.

Notice to Board

(4)When a physician renews a community treatment order for the second time and on the occasion of every second renewal thereafter, he or she shall give notice of the renewal to the Board in the approved form.

Waiver

(5)A waiver by the person who is subject to the community treatment order of an application or of the right to an application mentioned in subsection (3) is a nullity.

Review of community treatment order

(6)On the hearing of an application, the Board shall promptly review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1 (4) are met at the time of the hearing of the application.

Confirm or revoke order

(7)The Board may, by order, confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the Board determines that those criteria are not met, it shall revoke the community treatment order.

Application of order

(8)An order of the Board under subsection (7) applies to the community treatment order in force immediately before the making of the Board's order.

Parties

(9)The physician who issues or renews the community treatment order, the person subject to it or any other person who has required the hearing and such other persons as the Board may specify are parties to the hearing before the Board.

Procedure

(10)Subsections 39 (5.1), (6) and (7) apply to an application under this section with necessary modifications.

23.(1)Subsection 48 (1) of the Act, as re-enacted by the Statutes of Ontario, 1996, chapter 2, section 72, is amended by striking out "Ontario Court (General Division)" and substituting "Superior Court of Justice".

(2)Clause 48 (7) (d) of the Act is amended by striking out "subsection 20 (5)" and substituting "subsection 20 (1.1) or (5)".

(3)Subsection 48 (8) of the Act is amended by striking out "Subject to subsection 20 (5)" at the beginning and substituting "Subject to subsections 20 (1.1) and (5)".

(4)Clause 48 (11) (d) of the Act is amended by striking out "subsection 20 (5)" and substituting "subsection 20 (1.1) or (5)".

(5)Subsection 48 (12) of the Act is amended by striking out "subsection 20 (5)" at the end and substituting "subsection 20 (1.1) or (5)".

24.Subsection 54 (4) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

25.Section 55 of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

26.Section 56 of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

27.Subsection 57 (2) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

28.Subsection 60 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "in the prescribed form" and substituting "in the approved form".

29.The Act is amended by adding the following sections:

Forms

80.1The Minister may establish forms and require their use and may require the use of forms approved by the Minister.

Power of Minister to designate

80.2(1)The Minister may designate and classify psychiatric facilities, and exempt any psychiatric facility or class of psychiatric facility from the application of any provision of the regulations made under clause 81 (1) (b).

List

(2)The Minister shall maintain a list of psychiatric facilities and their classifications, and of any exemptions from the application of any provision of the regulations made under clause 81 (1) (b).

Same

(3)The list referred to in subsection (2) shall be available for public inspection from the Ministry.

30.(1)Clause 81 (1) (a) of the Act is repealed.

(2)Subsection 81 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, 1996, chapter 2, section 72 and 1997, chapter 15, section 11, is further amended by adding the following clause:

(f.1)prescribing the manner in which information may be brought before a justice of the peace for the purposes of section 16.

(3)Clause 81 (1) (g) of the Act is amended by striking out "respecting the examination and detention of persons" and substituting "respecting taking custody of persons under section 33, the examination and detention of persons" at the beginning.

(4)Subsection 81 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, 1996, chapter 2, section 72 and 1997, chapter 15, section 11, is further amended by adding the following clauses:

(g.1)respecting and governing community treatment orders, including the qualifications required for issuing such orders, additional duties of physicians who issue or renew such orders, additional duties of physicians who consent to an appointment under subsection 33.5 (2) and additional duties of persons who agree to provide treatment or care and supervision under a community treatment plan;

(g.2)designating persons or categories of persons who may review community treatment order documents to ascertain whether or not they have been completed in compliance with the criteria set out in this Act and prescribing additional duties of such persons;

(g.3)designating persons or categories of persons who may agree to provide treatment or care and supervision under a community treatment plan under subsection 33.5 (3) and prescribing the qualifications or requirements that a person must meet before he or she provides such treatment or care and supervision;

. . . . .

(h.1)designating persons or categories of persons as rights advisers and prescribing the qualifications or requirements that a person must meet before he or she may provide rights advice pursuant to clause 33.1 (4) (e);

. . . . .

(j.1)prescribing and governing the obligations of health practitioners, rights advisers, health facilities and others in relation to the provision of information about rights, and assistance in exercising rights, to persons who are subject to community treatment orders and to their substitute decision-makers, including,

(i)the information or assistance that must be given,

(ii)the categories of persons who must be given the information or assistance,

(iii)the circumstances in which the information or assistance must be given,

(iv)the persons by whom the information or assistance must be given; and

(v)the manner and time in which the information or assistance must be given.

(5)Clauses 81 (1) (k), (k.1) and (k.3) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 2, section 72, are repealed and the following substituted:

(k)governing the transfer of information among those involved in the process of providing persons with information about their rights and among those involved in the process of implementing a community treatment plan;

(k.1)regulating the timing of the treatment of a person in a psychiatric facility or subject to a community treatment order, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention to exercise, any of his or her rights;

. . . . .

(k.3)governing the use, disclosure and retention of personal information obtained from the disclosure, transmission or examination of a clinical record under clause 35 (3) (d.1), (e.3), (e.4) or (e.5).

(6)Subsections 81 (2) and (3) of the Act are repealed.

Part II

Health Care Consent Act, 1996

31.(1)Subsection 2 (1) of the Health Care Consent Act, 1996 is amended by adding the following definition: "

community treatment plan" has the same meaning as in the Mental Health Act. ("plan de traitement en milieu communautaire")

(2)The definition of "treatment" in subsection 2 (1) of the Act is amended by striking out "and includes a course of treatment or plan of treatment, but does not include" immediately before clause (a) and substituting "and includes a course of treatment, plan of treatment or community treatment plan, but does not include".

32.Section 32 of the Act is amended by adding the following subsection:

Decision effective while application for leave pending

(7)The Board's decision under subsection (5) remains in effect pending an application for leave under subsection (6).

33.(1)Subsection 35 (1) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Application for directions

(1)A substitute decision-maker or a health practitioner who proposed a treatment may apply to the Board for directions if the incapable person expressed a wish with respect to the treatment, but,

. . . . .

(2)Section 35 of the Act is amended by adding the following subsection:

Notice to substitute decision-maker

(1.1)A health practitioner who intends to apply for directions shall inform the substitute decision-maker of his or her intention before doing so.

(3)Subsection 35 (3) of the Act is repealed and the following substituted:

Directions

(3)The Board may give directions and, in doing so, shall apply section 21.

34.(1)Subsection 36 (1) of the Act is repealed and the following substituted:

Application to depart from wishes

(1)If a substitute decision-maker is required by paragraph 1 of subsection 21 (1) to refuse consent to a treatment because of a wish expressed by the incapable person while capable and after attaining 16 years of age,

(a)the substitute decision-maker may apply to the Board for permission to consent to the treatment despite the wish; or

(b)the health practitioner who proposed the treatment may apply to the Board to obtain permission for the substitute decision-maker to consent to the treatment despite the wish.

(2)Section 36 of the Act is amended by adding the following subsection:

Notice to substitute decision-maker

(1.1)A health practitioner who intends to apply under clause (1) (b) shall inform the substitute decision-maker of his or her intention before doing so.

35.Section 37 of the Act is amended by adding the following subsections:

Subsequent substitute decision-maker

(6.1)If, under subsection (6), the substitute decision-maker is deemed not to meet the requirements of subsection 20 (2), any subsequent substitute decision-maker shall, subject to subsections (6.2) and (6.3), comply with the directions given by the Board on the application within the time specified by the Board.

Application for directions

(6.2)If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to the treatment, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 35.

Inconsistent directions

(6.3)Directions given by the Board under section 35 on a subsequent substitute decision-maker's application brought with leave under subsection (6.2) prevail over inconsistent directions given under subsection (4) to the extent of the inconsistency.

36.The Act is amended by adding the following section:

Deemed application concerning capacity

37.1An application to the Board under section 33, 34, 35, 36 or 37 shall be deemed to include an application to the Board under section 32 with respect to the person's capacity to consent to treatment proposed by a health practitioner unless the person's capacity to consent to such treatment has been determined by the Board within the previous six months.

37.Subsection 50 (4) of the Act is amended by striking out "Subsections 32 (4) to (6)" at the beginning and substituting "Subsections 32 (4) to (7)".

38.(1)Subsection 52 (1) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Application for directions

(1)A substitute-decision maker or the person responsible for authorizing admissions to a care facility may apply to the Board for directions if the incapable person expressed a wish with respect to his or her admission to the care facility, but,

. . . . .

(2)Section 52 of the Act is amended by adding the following subsection:

Notice to substitute decision-maker

(1.1)If the person responsible for authorizing admissions to the care facility intends to apply for directions, the person shall inform the substitute decision-maker of his or her intention before doing so.

(3)Subsection 52 (3) of the Act is repealed and the following substituted:

Directions

(3)The Board may give directions and, in doing so, shall apply section 42.

39.(1)Subsection 53 (1) of the Act is repealed and the following substituted:

Application to depart from wishes

(1)If a substitute decision-maker is required by paragraph 1 of subsection 42 (1) to refuse consent to the incapable person's admission to a care facility because of a wish expressed by the incapable person while capable and after attaining 16 years of age,

(a)the substitute decision-maker may apply to the Board for permission to consent to the admission despite the wish; or

(b)the person responsible for authorizing admissions to the care facility may apply to the Board to obtain permission for the substitute decision-maker to consent to the admission despite the wish.

(2)Section 53 of the Act is amended by adding the following subsection:

Notice to substitute decision-maker

(1.1)If the person responsible for authorizing admissions to the care facility intends to apply under subsection (1), the person shall inform the substitute decision-maker of his or her intention before doing so.

40.Section 54 of the Act is amended by adding the following subsections:

Subsequent substitute decision-maker

(6.1)If, under subsection (6), the substitute decision-maker is deemed not to meet the requirements of subsection 20 (2), any subsequent substitute decision-maker shall, subject to subsections (6.2) and (6.3), comply with the directions given by the Board on the application within the time specified by the Board.

Application for directions

(6.2)If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to the admission to a care facility, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 52.

Inconsistent directions

(6.3)Directions given by the Board under section 52 on a subsequent substitute decision-maker's application brought with leave under subsection (6.2) prevail over inconsistent directions given under subsection (4) to the extent of the inconsistency.

41.The Act is amended by adding the following section:

Deemed application concerning capacity

54.1An application to the Board under section 51, 52, 53 or 54 shall be deemed to include an application to the Board under section 50 with respect to the person's capacity to consent to his or her admission to a care facility unless the person's capacity to consent to such admission has been determined by the Board within the previous six months.

42.Subsection 65 (4) of the Act is amended by striking out "Subsections 32 (4) to (6)" at the beginning and substituting "Subsections 32 (4) to (7)".

43.(1)Subsection 67 (1) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Application for directions

(1)A substitute decision-maker or the member of a service provider's staff who is responsible for the personal assistance service may apply to the Board for directions if the incapable recipient expressed a wish with respect to the personal assistance service, but,

. . . . .

(2)Section 67 of the Act is amended by adding the following subsection:

Notice to substitute decision-maker

(1.1)If the member of the service provider's staff responsible for the personal assistance service intends to apply under subsection (1), the member shall inform the substitute decision-maker of his or her intention before doing so.

(3)Subsection 67 (3) of the Act is repealed and the following substituted:

Directions

(3)The Board may give directions and, in doing so, shall apply section 59.

44.(1)Subsection 68 (1) of the Act is repealed and the following substituted:

Application to depart from wishes

(1)If a substitute decision-maker is required by paragraph 1 of subsection 59 (1) to refuse consent to a personal assistance service because of a wish expressed by the incapable recipient while capable and after attaining 16 years of age,

(a)the substitute decision-maker may apply to the Board for permission to consent to the personal assistance service despite the wish; or

(b)the member of the service provider's staff who is responsible for the personal assistance service may apply to the Board to obtain permission for the substitute decision-maker to consent to the personal assistance service despite the wish.

(2)Section 68 of the Act is amended by adding the following subsection:

Notice to substitute decision-maker

(1.1)If the member of the service provider's staff who is responsible for the personal assistance service intends to apply under subsection (1), the member shall inform the substitute decision-maker of his or her intention before doing so.

45.Section 69 of the Act is amended by adding the following subsections:

Subsequent substitute decision-maker

(6.1)If, under subsection (6), the substitute decision-maker is deemed not to meet the requirements of subsection 20 (2), any subsequent substitute decision-maker shall, subject to subsections (6.2) and (6.3), comply with the directions given by the Board on the application within the time specified by the Board.

Application for directions

(6.2)If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to the personal assistance service, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 67.

Inconsistent directions

(6.3)Directions given by the Board under section 67 on a subsequent substitute decision-maker's application brought with leave under subsection (6.2) prevail over inconsistent directions given under subsection (4) to the extent of the inconsistency.

46.The Act is amended by adding the following section:

Deemed application concerning capacity

69.1An application to the Board under section 66, 67, 68 or 69 shall be deemed to include an application to the Board under section 65 with respect to the person's capacity to consent to a personal assistance service unless the person's capacity to consent to such service has been determined by the Board within the previous six months.

47.The Act is amended by adding the following section:

Immunity

71.1No proceeding for damages shall be commenced against the Board, a member, employee or agent of the Board or anyone acting under the authority of the chair of the Board for any act done in good faith in the performance or intended performance of the person's duty or for any alleged neglect or default in the performance in good faith of the person's duty.

48.Subsection 80 (1) of the Act is amended by striking out "Ontario Court (General Division)" and substituting "Superior Court of Justice".

Part III

Commencement and Short Title

Commencement

49.This Act comes into force on December 1, 2000.

Short title

50.The short title of this Act is Brian's Law (Mental Health Legislative Reform), 2000.

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