November 2019 By PsychDB.com

Introduction to Ontario's Mental Health Laws

The Mental Health Act (MHA) and Health Care Consent Act (HCCA) are two pieces of legislation that guide mental health care and health care in Ontario, Canada. The Mental Health Act (MHA) applies to psychiatric care, and provides rules and a legal process for voluntary, informal and involuntary admissions. The Health Care Consent Act (HCCA) applies to all aspects of health care (both medical and psychiatric) and provides rules for obtaining informed, voluntary consent for treatment, and involvement from substitute decision makers.

The Mental Health Act's (MHA) purpose is to regulate the involuntary admission and treatment of people into a psychiatric hospital. Major changes were made to the law in 2000, which introduced the role of Community Treatment Orders. In broad strokes, the the Mental Health Act in Ontario allows physicians to assess (Form 1) and also to detain (Form 3, Form 4, Form 4A) patients for set periods of time. The Health Care Consent Act and Mental Health Act also allows for the involuntary treatment of patients if they are incapable (Form 33).

The MHA focuses on detention of patients, and thus MHA alone does not allow you to force treatment (there must be a finding of incapacity under the Health Care Consent Act needs be be used in conjunction as well). Only emergency psychiatric treatment is allowed in the event of significant morbidity or mortality. Therefore, if there is no emergency and a patient refuses treatment, you must respect the wishes of the patient. A patient could theoretically be in a situation where they detained under the MHA, but are capable and NOT treated.

The Health Care Consent Act (HCCA) applies to all aspects of health care in Ontario and provides rules for obtaining informed, voluntary consent from a substitute decision maker. Section 4 of the HCCA outlines the guidelines for consent and capacity (one shall not administer medications without a patient's consent, otherwise it is battery or assault).

The HCCA is what allows you to determine whether treatment can be imposed. Only a finding of incapacity under the HCCA allows you to treat the patient against their wishes (i.e. - involuntary treatment).

Remember, capacity is treatment-specific. An individual with schizophrenia can be detained under the MHA due to harm to self, but still be capable to make a decision to refuse an antipsychotic.

Psychiatric vs. Medical Incapacity in Ontario

Incapacity for Mental Health vs. Medical Treatment

Incapacity for Mental Health Treatment Incapacity for Medical Treatment
Example Diagnosis Schizophrenia Diabetic Ketoacidosis
Cause of Incapacity Delusions and hallucinations leading to inability to appreciate that treatment is needed Delirium and decreased level of consciousness leading to inability to understand and appreciate that treatment is needed
Treatment Antipsychotics Insulin
Mental Health Act (MHA) Applies? Yes No
Health Care Consent Act (HCCA) Applies? Yes Yes
Form 33 Required Not required (Rights Advisor does not need to be not notified. Rights Advice only needs to be provided by the health practitioner)
Leaving Against Medical Advice Can leave if status is a voluntary patient. Otherwise, cannot leave if on a Form 1, Form 3, or Form 4. Can leave if status is a voluntary patient. If there is a legitimate safety concern about the patient leaving, you would thus need to issue a Form 1 (e.g. - trying to leave during an episode of delirium)

Grey Areas

There may be situations where a patient may have both medical and psychiatric issues (e.g. delirium + schizophrenia, substance intoxication + schizophrenia, diabetic ketoacidosis + schizophrenia), and it is unclear which underlying issue is causing the incapacity. In this case, you will want to carefully document your reasoning (e.g. - why you think it is primarily psychiatric or primarily medical).

Substitute Decision Makers (SDMs)

In Ontario, if a patient is found incapable, you must find a Substitute Decision Maker (SDM) to give consent on the patient's behalf. The hierarchy of SDMs is dictated by the Healthcare Consent Act (HCCA). Here are some points to consider when an SDM is involved:

  • The SDM(s) must be available, capable, and willing
  • Multiple SDMs of the same rank can be involved
  • If SDMs of the same rank disagree on a treatment (i.e. - feuding SDMs) and cannot come to an agreement, then the decision will automatically go to the PGT. Therefore, it is in the existing SDM(s) best interest to come towards an agreed decision.
  • SDMs must comply with the most recent expressed capable wishes of the patient (or if unknown, the best interests)
  • If the MD thinks the SDM not acting in accordance with principles of HCCA, the PGT can be contacted
  • Even if an SDM is involved, you should still involve the patient as much as possible! (e.g. - tell patient that SDM will assist them and make the final decision, but still involve patient as much as possible in discussions with SDM)
  • If patient disagrees with having a specific SDM, the MD can try to find another substitute of the same or senior rank, or advise the patient to apply for a review through a Consent and Capacity Board (CCB) Hearing

Substitute Decision Maker (SDM) Hierarchy

Section 20(1) of the HCCA ranks SDMs in the following order:
  1. Guardian
  2. Power of Attorney (POA) for personal care
  3. Representative from Consent/Capacity Board
  4. Spouse [if it is an unmarried partner, they have to be in a conjugal (i.e. - living together) relationship for at least 1 year, and be the “most important primary person in both individuals' lives”]
  5. Child/parent/agency entitled instead of another parent (e.g. - one parent has custody of a child over another, and custody is greater than a parent with only right of access)
  6. Parent who has right of access only
  7. Sibling
  8. Relative (e.g. - blood-relative, marriage, adoptive, step-parents, in-laws)
  9. Public Guardian and Trustee (PGT) (i.e. - a government representative)

Health Laws and Acts in Ontario

Act/Law What It Does
Mental Health Act (MHA) • Mental health/illness-related admissions (voluntary, involuntary, and informal), and rights advice, plus Consent and Capacity Board hearings.
Community Treatment Orders
Health Care Consent Act (HCCA) • Capacity determinations regarding treatment decisions, care facility admissions and personal service decisions
• HCCA presumes capacity for all ages; no age of consent in Ontario
• Rules for informed consent from capable person or SDM
• SDM hierarchy
• Emergency decisions
Substitute Decisions Act (SDA) • Legal framework for POA for personal care and property decisions and challenges to same
• Considered a piece of companion legislation to the MHA and HCCA
Patient Restraints Minimization Act (PRMA) • Minimization of patients restraints
• Clarification of legal use of restraints
Long-term Care Homes Act (LTCHA) • Applications/admission and care in long-term care homes
• Includes provisions for decision-making, secure units procedures, standard-of-care expectations, restraint use, and advanced care planning
Personal Health Information Protection Act (PHIPA) • Collection, disclosure, and utilization of personal health information
• Among persons providing health care (also known as health custodian), such as a social worker, RN, or MD, consent for release of personal health information by the patient is implied if information is used for the purposes of providing care
• Among non-health care custodians (e.g. parents, family, school, police), you need expressed consent from the patient
• Need expressed consent among health care custodians if information is used for non-health care purposes
• Capacity to consent is presumed
• For example, per PHIPA, informing a family doctor about a 14 year old who visited the ED with suicidal ideation is permitted without explicit consent, whereas, informing a parent is not.

For Providers