1. Mental Health: Fundamentals in Policy and Practice Yr 2 SSW
WEEK 6
Mental Health Legislation

2. This Week Small Group Discussion What should Karim’s parents do?
Karim is a 25 year old man who has been diagnosed as having schizophrenia. When he is taking his medication and following his treatment/care routine he is fine. He is able to live with his parents, hold down a part-time and attend school, though he often reports that his medication makes him sluggish and dulls his thinking. Every so often, Karim stops following his care plan and stops taking his medication. When this happens he eventually becomes psychotic and is requires admission to hospital.
Karim is once again off his medication and has been spending most of his time hiding in the basement. He thinks that aliens are coming to kill him and that his parents are in on the plan. He has been threatening to hurt them if they come near him.
What should Karim’s parents do?
Should he be ‘allowed’ to stop taking his medication?
How do we balance his right to self-determination and freedom with his need for treatment and his potential threat to others?

3. Mental Health Legislation
Attempts to balance:
Rights vs. Safety and Security
The civil liberties of individuals to live as they choose
The safety and security of individuals who can’t understand the consequences of their choices because of ‘diminished capacity’
The safety and security of others (ensuring that others aren’t affected by that the choices and behaviours of people with mental health problems)

4. Mental Health Legislation
Past:
Protection of ‘others’ emphasized
Laws allowed for ‘involuntary’ treatment sometimes against client’s wishes
Present:
Laws now protect individuals
Much tougher to enforce treatment
Individual’s rights now more protected
1813 – (British) Country Asylums Act – local control over institutions but Courts controlled admissions and discharges
1871 – (ON) Act Respecting Asylums for the Insane – confinement determined by Lt. Gov., Mayor and exam/certification by 3 physicians (confinement often lifelong)
1935 – Mental Hospitals Act – admission by 2 physicians and no court; explicit reference to discharge/release
1967 – Mental Health Act – limits the role of physicians; reduced threshold for involuntary admission; reflects the mistrust of that period of physicians and psychiatry
1978 – MHA – more restricted definition of ‘safety’
1984 – MHA – greater accountability re: involuntary admissions
1987 – MHA – reduction of initial involuntary admission from 5 days to 3

5. Mental Health Legislation
Legislation in Ontario
Mental Health Act
Health Care Consent Act
Child and Family Services Act
Personal Health Information Protection Act
We’ll focus primarily on the MHA
CFSA
Secure Treatment Orders
Records, services, etc.
Criminal Code of Canada also has some sections that apply to clients with mental health problems who are in conflict with the law.

6. Mental Health Act
OMHA provides framework for the care, treatment and hospitalization of those people who are suffering from a mental health problem.
Aims to balance the right to autonomy and self-determination with the right to care, protection and treatment as well as the safety for the community.
Argument has been made that not forcing involuntary admission of a person who is ill deprives them of their right to access services.

7. Mental Health Act
A guide to dealing with consumers in a ‘civilized’ and accountable manner
Protects individuals’ rights
Provides a process to challenge involuntary hospitalization

8. Mental Health Act
Governs how people are admitted to psychiatric facilities
How their mental health records are kept and accessed
How their financial affairs are handled
How people can be released into the community.

9. Mental Health Act Consent Patient Must:
For all medical interventions, health care providers need the patient’s consent.
Patient Must:
Have capacity to consent (understand issue and consequences of giving/withholding consent)
Consent voluntarily (free of coercion)
Be able to offer informed consent (understand risks & benefits)
Capacity often has to do with age, intellectual functioning and ‘soundness of mind’ – is the person able to appreciate the situation at hand or are they incapable due to intellectual immaturity, illness or distress.

10. Mental Health Act Informed Consent Encourages rational decision-making
Requires clients to be competent to provide consent
Are severely mentally ill people ‘rational’ and ‘competent’?

11. Mental Health Act Involuntary Assessment
Person can be detained for up to 3 days in order to make it possible for a psychiatrist to assess them.
FORM 1: A physician orders the assessment
FORM 2: Justice of the Peace orders the assessment at the request of a family member
Section 17 of MHA: Police Apprehension
Section 21 of MHA: Judge orders assessment of an accused.
If someone is:
Likely to cause serious harm to self
Harm to others
Cannot take care of self
Must be assessed “forthwith”
Family member must swear an oath attesting to the person’s risk to self or others. The JP then issues an order that compels the police to transport the person to hospital for assessment.
Under Section 22 of the MHA Judges can also make admission orders (up to 2 months).

12. Mental Health Act
If after evaluation the person is deemed to pose no threat to self or others:
Discharge
Voluntary admission
If, however, they are deemed to pose a threat to self or others:
Involuntary admission for up to 2 weeks (Form 3)
Renewed with a Form 4 (1 month, then 2)
Form 42 is issued when they are ordered into hospital for evaluation or admission, advising them of the reasons and of their rights and options for review
If someone is:
Likely to cause serious harm to self
Harm to others
Cannot take care of self

13. Mental Health Act Rights Advisor
Once admitted, a Rights Advisor (Patient Advocate) explains the patient’s rights, including how they can challenge the Form (1 or 2, etc.)
A Review Hearing takes place and person has opportunity to present their point of view
Lawyers, treating physician and other health care providers are present.
Rights Advisor or “Patient Advocate” in Ontario

14. Community Treatment Orders
‘Brian’s Law’ (2000)
Ottawa Sportscaster Brian Smith was fatally shot on August 1, 1995 by Jeffery Arenburg who had been diagnosed with Schizophrenia. He believed voices in his head were broadcast by the TV station where Smith worked.
This law amended the OMHA to make it easier for police to take people to hospital, removed the word “imminent” from the conditions for a physicians, and created CTO’s.
(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, , c. 9, s. 15.

15. Community Treatment Orders
A voluntary commitment by individual (when they are well) to comply with intensive treatment and support when released into the community.
Must report regularly to Mental Health providers
Must agree to a case manager
Must take medication
If a person doesn’t comply the physician can have them apprehended by police and returned involuntarily to hospital for examination (Form 47)

16. Community Treatment Orders
Small Group Discussion
Are CTOs coercive?
Should a person have to surrender their right to refuse medication in order to get released?
Should we as a society have the power to require people to take powerful medications that have serious side-effects?

17. Health Care Consent Act
Sets out the rules governing consent to treatment, including what to do when a person is incapable of making decisions. It also addresses issues related to a person’s desire to appeal a decision made about their ability to consent to commitment, treatment, etc.
Key Concepts
Capacity
Substitute Decision-Makers
Consent and Capacity Board
The purposes of this Act are,
(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;
(d) to promote communication and understanding between health practitioners and their patients or clients;
(e) to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment, admission to a care facility or a personal assistance service; and
(f) to permit intervention by the Public Guardian and Trustee only as a last resort in decisions on behalf of incapable persons concerning treatment, admission to a care facility or personal assistance services. 1996, c. 2, Sched. A, s. 1.
Consent and Capacity Board:
The Board has the authority to hold hearings to deal with the following matters:
Health Care Consent Act
Review of capacity to consent to treatment, admission to a care facility or personal assistance service.
Consideration of the appointment of a representative to make decisions for an incapable person with respect to treatment, admission to a care facility or a personal assistance service.
Consideration of a request to amend or terminate the appointment of a representative.
Review of a decision to admit an incapable person to a hospital, psychiatric facility, nursing home or home for the aged for the purpose of treatment.
Consideration of a request from a substitute decision maker for directions regarding wishes.
Consideration of a request from a substitute decision maker for authority to depart from prior capable wishes.
Review of a substitute decision maker’s compliance with the rules for substitute decision making.
Mental Health Act
Review of involuntary status (civil committal).
Review of a Community Treatment Order.
Review as to whether a young person (aged 12 to 15) requires observation, care and treatment in a psychiatric facility.
Review of a finding of incapacity to manage property.
Personal Health Information Protection Act
Review of a finding of incapacity to consent to the collection, use or disclosure of personal health information.
Consideration of the appointment of a representative for a person incapable of consenting to the collection, use or disclosure of personal health information.
Substitute Decisions Act
Review of statutory guardianship for property.

18. PERSONAL HEALTH INFORMATION PROTECTION ACT (PHIPA), 2004
Privacy Legislation
PERSONAL HEALTH INFORMATION PROTECTION ACT (PHIPA), 2004
Sets out Rules for:
Collection
Use
Disclosure
PHI is written or oral information related to the individual’s physical and mental health.
of personal health information (PHI) (oral or recorded) for use by “health information custodians” (HICs)
Collect – gathering and keeping their information within your agency. Clear rules about storage/protection of info, giving notice to clients, accuracy, etc.
Use – using their PHI within your agency
Disclose – sharing their PHI outside of your agency. Clear rules (see slides below)
Health Information Custodians: Under the act these are typically agencies and/or individuals in private or group practice. If you work for an agency you are likely an…
Agent: Someone who collects, uses and discloses PHI on behalf of an HCI (agency).
Recipient: Someone to whom PHI may be disclosed for specific purposes but who is not themselves an HCI or agent (e.g. a parent)

19. Privacy Legislation Health Information Custodians (HICs) Must:
Collect, use and disclose PHI with care and diligence
Collect as little PHI as needed (e.g. you cannot be ‘nosy’ or merely curious)
Protect it from being lost, stolen or inappropriately accessed, as well as from unauthorized copying, modification and disposal
Report if the PHI is lost or stolen, or if someone accesses it without authority

20. Who has access to info? Health Information Custodians (HICs) Doctors
Nurses
Social Workers
Occupational Therapists
‘Government’
Non-Health Information Custodians (Non-HICs)
Insurance Companies
Family Members
Lawyers

21. Informational vs. Treatment
Privacy Legislation
Consent
Informational vs. Treatment
Implied
Express
Without Consent
“Lockbox”
Consent in this context is about the disclosure/release of information – “informational consent” – not consent to treatment.

22. Consent Implied Consent
Without signature but with knowledge of the exchange
Implied Consent is okay only within the person’s “CIRCLE OF CARE”
Circle of Care = Between the person’s HICs
Example: A referral from a family physician does not require signed consent
‘Lockbox’: Not okay if client has specifically withdrawn or withheld the consent (client can also set limits on what is shared)
You should never rely on implied consent if you have reason to believe that the client:
would not give consent, or
gave consent previously but has since withdrawn it
You may assume that you have the individual's implied consent to share the client’s personal health information with his family doctor, unless the client expressly instructs you not to share this information with his doctor.
Keep in mind that you may release PHI to another HIC for the purposes of providing care. If it is for some other reason, you must get Express Consent.
When in doubt, have them sign a release!

23. Consent Express Consent Is either written or oral.
It is clearly given by the client usually by a statement
“yes, you can share my PHI” or by signature on a form.
If written (e.g. a signed consent form), it must be placed in the client’s health record.
If oral consent, it should be documented in the health record.
Must get it when giving PHI to non-HIC’s.

24. Consent “Circle of Care” Person
S. Worker
Family Doctor
Psychiatrist
Lawyer
Insurance Co
“Circle of Care”
Person
HIC
NON-HIC
Types of Consent
Implied
Expressed
NON-HIC : Those services, agencies, individuals who do not provide health care services
Examples: Toronto Police Services, Lawyers, Insurance Companies, Probation/Parole, Family, Housing (except if provides health care), insurance companies, employers, school boards, courts, Consent and Capacity Board; Family members (unless they have legal authority to act on behalf of the client, such as acting as the client’s substitute decision-maker)
Need ‘Expressed’ Consent (signed form) to share PHI
The “circle of care” is actually not defined in the Personal Health Information Protection Act, 2004 or its regulations, although it is discussed by the Office of the Information and Privacy Commissioner/Ontario in its
frequently asked questions about the law ( (OCSWSSW)
Specialist
Probation
Parole
Police

25. Consent Disclosing PHI Without Consent
Clients need to know the exceptions to confidentiality, so identify and explain them in the first session:
When client may be harmful to self or others
When children in client’s care may be at risk
Highlighting this ‘up front’ is a key aspect of building a working alliance and establishing rapport
PHIPA requires HICs to post a statement that outlines what happens to the PHI

26. Consent
“LOCKBOX”
Clients have the right to “lock” parts or all of their PHI
They may expressly withdraw their implied consent for its collection, use and disclosure.
A client may tell you not to disclose specific PHI to another HIC or even a particular health care practitioner (such as a therapist or counsellor) in your organization.
The term itself is not set out in PHIPA, but their right and our obligation are clear.
In many ways, they control their information.
Some exceptions apply under some circumstances.

27. Documentation The Clinical Record
Records/notes of interviews are confidential documents
Your documentation:
Must be objective and accurate and relevant
Comprehensive but succinct
Include all contacts – brief, telephone, etc.

28. Documentation Who Reads the Clinical Record The Client!
‘The Team’ – Important guide for treatment decisions
Managers/Directors/Supervisors (e.g. in cases of client complaints)
3rd party reimbursement (e.g. insurance companies)
May be scrutinized in court or quasi-judicial hearings (e.g. Consent and Capacity Board, inquests)

29. Duty to Warn and Protect
Suicide Risk
Homicidal Risk
Children at risk
STI’s
Our Dilemma
What are the obligations of the clinician who learns that the client harbours aggressive thoughts or feelings toward self and/or others?
Clients who knowingly engage in unsafe sexual practices or needle sharing: we must inform public health
Contact TPH for clarification about who informs partner(s) and how

30. Practice Discussion
Your client, Jim, is a single parent of 9 year old twins. He has been seeing you for 6 months and you have a strong rapport. He has told you that he periodically abuses cocaine and struggles with depression. He has also told you that Children’s Aid is actively involved because of previous concerns about his ability to care for the children. In your meeting today Jim disclosed that he recently lost his job and has used cocaine heavily for 5 consecutive days. He tells you that the kids are staying with his parents and are fine.
What do you do with this new information?
He told you this ‘in confidence’; how might disclosing this news affect the client-worker relationship?
What could you do to balance out the legal and therapeutic aspects of this situation?
How might you go about including Jim’s parents?
Rick’s Answer:
Reportable – you don’t know that the kids are actually with the grandparents.
Work with Jim to work with CAS to formally involve parents so that kids really are safe
CAS as ally, creating a ‘team’ to support Jim and the kids
Team could come to include Substance Use program