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New Bill 16 makes changes to Mental Health Act and Health Care Consent Act

April 15, 2010

On March 25, 2010, Bill 16, "Creating the Foundation for Jobs and Growth Act, 2010" (also called "An Act to Implement 2010 Budget Measures and to Enact or Amend Various Acts"), passed its first reading in the Ontario Legislature. Through Bill 16, the Ontario Government proposes means to enact the 2010 provincial budget, along with amendments to the Mental Health Act and the Health Care Consent Act.

Subsection 33.1(5) of the Mental Health Act is amended to allow physicians to issue or renew a community treatment order (CTO) even if the patient or their substitute decision-maker has not consulted with a rights adviser. If the substitute decision-maker is the Public Guardian and Trustee or a rights adviser, a physician may still issue or renew a CTO, even if the patient could not be located to be informed about it. Furthermore, Section 33.3 of the Act is amended and states that a CTO is not terminated when an order for examination is issued under this section. The purpose of a CTO is to provide a plan of community-based treatment and supervision for a person with a serious mental disorder that is less restrictive than being detained in a psychiatric facility.

Subsections 38(2) and (3) of the Act are amended to require that an attending physician who completes a certificate of involuntary admission or a certificate of renewal must give the patient written notice that the patient has the right to apply to the Board for a transfer to another psychiatric facility. As required by existing legislation, the written notice also informs the patient of the reasons for the detention, of their right to a hearing before the Consent and Capacity Board, and of their right to retain and instruct counsel without delay.

A new Section 39.2 is added to the Act; it allows an involuntary patient, a person on their behalf, or the officer in charge of the psychiatric facility where the patient is currently detained to apply to the Consent and Capacity Board for an order to transfer the patient to another psychiatric facility. Upon receiving a transfer application under this section, the Consent and Capacity Board is required to give prompt notice of the application to the Minister of Health and to the officer in charge of the psychiatric facility named in the application. When deciding whether to order a transfer, the Board is also required to consider if the new psychiatric facility is able (a) to provide for the client's care and treatment, and (b) to safely manage any risk the patient poses to him- or herself, or to another person.

Section 48 of the Act is also amended to allow any party (the patient, the Minister of Health, the officer in charge of the psychiatric facility, etc.) to appeal to the Superior Court of Justice. A motion may be made to stay a transfer, pending the appeal.

Section 75 of the Health Care Consent Act is thus amended to reflect the above changes to the Mental Health Act, specifically that transfer hearings before the Consent and Capacity Board (under Section 39.2 of the Mental Health Act) shall begin within 30 days after the Board receives the application, unless the parties agree to a postponement.

To access Bill 16, visit www.ontla.on.ca.

To access the full report (all budget papers) on the 2010 Ontario Budget, visit www.fin.gov.on.ca.