Circumstances of Committal: An Overview of Detention under the Mental Health Act

Often times when we think about the intersections of mental health and the law, we think about how individuals with mental health concerns interact with the Criminal Justice System. In reality, the interaction between mental health and the law extends beyond the criminal sphere to govern committals of vulnerable persons to mental health facilities.

In Ontario, committals to psychiatric facilities are governed under the Mental Health Act (MHA) and Health Care Consent Act (HCCA). Whereas the HCCA applies generally to treatment and capacity issues, the MHA is the primary statute legislating over the committal of individuals to psychiatric facilities. While individuals can be admitted to psychiatric facilities voluntarily and informally (with the consent of a family member under the HCCA), the majority of complaints involve involuntary committals and treatment orders for involuntary patients.

Under the MHA, individuals can require a person to attend a hospital for an examination to determine whether or not reasonable grounds exist to require the person to be detained for a psychiatric assessment. While persons can always submit themselves to an examination, the MHA provides authority to police officers and other individuals to seek an Order from a Justice of Peace requiring the named individual to attend a physical examination to determine whether an assessment is required.

In order to make an application for psychiatric assessment, which is commonly referred to as a “Form 1 assessment”, the attending physician must personally examine the patient and have reasonable cause to believe that they are attempting or threatening to cause bodily harm to themselves or another, or are unable to care for themselves, and that they are suffering from a mental condition of a nature which will likely result in serious bodily harm or impairment to themselves or others. If satisfied, the attending psychiatrist (who must be different from the initial examining physician) has the authority to hold the individual for up to 72 hours to perform a psychiatric assessment. Following the assessment, the attending psychiatrist will determine whether the appropriate grounds are met to hold the individual for treatment in the facility, or whether they must be released from involuntary detention.

Since the detainment of an individual for ongoing treatment involves a deprivation of individual liberty, the standard for holding an individual on a certificate of involuntary admission (commonly referred to as a “Form 3”) is high. The attending psychiatrist must be of the opinion that the person is suffering from a mental disorder of such a nature or quality that they are in need of psychiatric treatment, or that they are continuing to suffer from a pre-existing mental disorder for which they are known to require treatment. When issued, the certificate allows the facility to hold the person for a period of up to two weeks, during which time the physician must be constantly reassessing the individual to determine whether their detainment continues to be justified. Following the two-week period, the psychiatrist must perform another assessment to determine whether the individual must be completely released, released subject to a Continuing Treatment Order “CTO” , or whether to renew the certificate up to a maximum of three months. If after three months of detainment the psychiatrist is still of the opinion that admission is required, the physician would apply for a certificate of continuation (commonly referred to as a “Form 4”).

While the ability to contest an initial 72-hour assessment is generally limited, all individuals subject to a certificate of involuntary admission, renewal, or continuation are entitled to receive prompt written notice of the reasons for their detainment, a right to retain and instruct counsel, and the right to a hearing before the Ontario Consent and Capacity Board (CCB). The CCB is an administrative body comprised of mental health professionals, lawyers and community members appointed to hear complaints relating to consent and capacity issues, including involuntary committals. Individuals who are subject to any of the aforementioned certificates of detainment are permitted to bring an application before the Board for a review of their involuntary detainment in a psychiatric facility.

Upon application, the CCB will review the reasons provided for the individual’s admittance and all relevant medical documents to determine whether or not the conditions required to sustain the detainment are met. If the conditions are not met, the individual must be released. It is important to note that individuals subject to certificates of involuntary admission are also entitled to have a “rights advisor” appointed to inform them of their rights to counsel and a hearing before the Board.

The CCB also has authority to review CTOs. Where the CCB is of the opinion that an individual is no longer in need of continuing supervision or treatment under the CTO, where the 6-month order period has lapsed, or where the conditions required to justify the order are no longer met, the Board is required to terminate the order and release the individual.

In summation, while the MHA provides broad detainment powers to mental health professionals, it also places a heavy burden upon professionals to justify initial and continuing detainment. The starting position for all individuals, regardless of mental illness, is always liberty and non-intrusive treatment. However, where it is shown that an individual poses a significant risk to themselves or others, detainment can be justified on the grounds of public and individual safety.