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Practical Guide to Mental Health and the Law in Ontario Revised Edition, September 2016 A PRACTICAL GUIDE TO MENTAL HEALTH AND THE LAW IN ONTARIO - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - REVISED EDITION, SEPTEMBER 2016$10.49
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Practical Guide to Mental Health and the Law in Ontario Revised Edition, September 2016 A PRACTICAL GUIDE TO MENTAL HEALTH AND THE LAW IN ONTARIO - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - REVISED EDITION, SEPTEMBER 2016
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Course
LAW121
Institution
LAW121
1. Introduction
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 Comm...
,Disclaimer
This Toolkit was prepared by Borden Ladner Gervais LLP for the ownership and use of the Ontario Hospital Association
(OHA). This Toolkit is intended to provide health care providers with a general understanding of mental health law issues
and with an overview of the legislation that governs the provision of mental health care in Ontario. It is also written from
the perspective of legal counsel who regularly assist health care providers and institutions in mental health law matters.
The materials in this Toolkit are for general information. The Toolkit reflects the interpretations and recommendations
regarded as valid at the time that it was published based on available information. The Toolkit is not intended as, nor
should it be construed as, legal or professional advice or opinion.
Hospitals concerned about the applicability of mental health legislation to their activities are advised to seek legal or
professional advice. The OHA will not be held responsible or liable for any harm, damage, or other losses resulting from
reliance of the use or misuse of the general information contained in this Toolkit.
This Toolkit is published for OHA members. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the
personal use of OHA members, without prior written permission of the OHA.
I
A Practical Guide to Mental Health and the Law in Ontario
,Acknowledgements
The Ontario Hospital Association, and the Toolkit co-authors, Katharine Byrick and Barbara
Walker-Renshaw, would like to thank the following representatives of psychiatric facilities,
public hospitals and the mental health law sector for their participation in the preparation of this
Toolkit. Their constructive comments and suggestions on this and earlier drafts of the Toolkit
have contributed considerably towards making it a useful resource for health care providers and
hospital administrators.
Ms. Pat Fryer, R.N., C.O.H.N.(S) Ms. Sheila Neuburger
Patricia Fryer & Associates Inc. Executive Vice-President, Clinical Services
986 Silver Birch Trail Ontario Shores Centre for Mental Health Sciences
Mississauga, Ontario Whitby, Ontario
Dr. Lois Hutchinson Ms. Michelle O’Bonsawin
Physician Adviser, Mental Health and Addictions Services General Counsel and Freedom of Information Coordinator
St. Joseph’s Care Group, Lakehead Psychiatric Hospital Legal Services
Thunder Bay, Ontario Royal Ottawa Health Care Group
Ottawa, Ontario
Dr. Brian Jones, Ph.D, C. Psych.
Forensic / Correctional Psychology Ms. Nancy Smokler
Adjunct Assistant Professor Manager, Office of the Resident and Family Experience
Department of Psychiatry & Safety, Veterans Centre
University of Toronto, McMaster University Sunnybrook Health Sciences Centre
Toronto, Ontario
Ms. Nyranne Martin
General Counsel, Corporate Secretary, Chief Privacy Dr. Ty Turner
Officer and Enterprise Risk Management Officer Medical Program Director
The Ottawa Hospital Mental Health and Addictions
Ottawa, Ontario Chief of Psychiatry
St. Joseph’s Health Centre
Dr. Jay Moss Toronto, Ontario
Medical Leader and Psychiatrist
Sunnybrook Health Sciences Centre Ms. Lee Anne Wiebe, RN, BScN, CPMHN(C)
Assistant Professor, Department of Psychiatry and TOPSS Caseworker, Schizophrenia & Community
Family Medicine Integration Services
University of Toronto St. Joseph’s Healthcare Hamilton, West 5th Campus
Hamilton, Ontario
Ms. Kendra Naidoo
Legal Counsel
Centre for Addiction and Mental Health (CAMH)
Toronto, Ontario
II
A Practical Guide to Mental Health and the Law in Ontario
, About the Authors
Katharine Byrick
Katharine is a partner in the Health Law Practice Group in the Toronto office of Borden Ladner Gervais
LLP. A considerable portion of Katharine’s practice involves defending health care organizations and
their employees in civil claims. A significant component of Katharine’s practice also involves working
directly with a variety of health care organizations in responding to adverse events, ALC issues, dealing
with complicated consent issues including end-of-life, issues involving substitute decision makers, discharge
planning and mental health law issues. Katharine has dealt extensively with matters involving the Health Care Consent Act,
Substitute Decisions Act, Mental Health Act, as well as coroner’s investigations and reviews.
Katharine has worked directly with clinical care teams to provide legal support in dealing with challenging situations
involving all of the above, as well as with individuals in leadership roles to provide continuing education and support to staff
on a more general level. Katharine has also worked with a variety of organizations in the development and review of policies
and procedures on a range of topics including consent, end-of-life, use of restraints, QCIPA, disclosure of adverse events and
critical incident management.
Katharine has appeared before the Superior Court of Justice, Divisional Court and the Court of Appeal for Ontario as well as
the Consent and Capacity Board and the Ontario Review Board. She has also been involved in mediations and negotiations
and has assisted with responses to Health Services Appeal and Review Board and the Information and Privacy Commissioner.
Barbara Walker-Renshaw
Barbara Walker-Renshaw is a partner in the Health Law Practice Group of Borden Ladner Gervais LLP and
is the national leader of BLG’s Mental Health Law Practice.
Barbara’s practice has a specialty focus on mental health law, including advocacy before administrative
tribunals, medical malpractice litigation, Coroners’ Inquests and Commissions of Inquiry. She regularly
represents the interests of the person-in-charge of forensic psychiatric facilities before the Ontario Review Board, in hearings
concerning mentally disordered offender. She also represents health care providers before the Consent and Capacity Board
in matters dealing with consent to treatment, substitute decision making, involuntary admissions, community treatment
orders and admission to Long Term Care. Barbara advises psychiatric facilities on privacy and policy matters related to
mental health care.
Barbara has an active appellate practice in appeals of both Ontario Review Board and Consent and Capacity Board matters,
which includes frequent appearances before the Court of Appeal for Ontario and the Superior Court of Justice. She was
co-counsel for an intervener in the Supreme Court of Canada decision, Starson v. Swayze, which considered the legal test for
capacity to consent to treatment under Ontario’s Health Care Consent Act.
Barbara is the author of the chapter on Mental Health Law in the Canadian Health Law Practice Manual, published by Lexis
Nexis and regularly publishes articles dealing with mental health law. Barbara has been selected by her peers for inclusion
in the 2015, 2016 and 2017 editions of The Best Lawyers in Canada in the area of Health Care Law.
III
A Practical Guide to Mental Health and the Law in Ontario
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