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Mental Health Care Law: Ten Basic Principles

• These principles come from a comparative analysis of national mental health laws in 45 countries by the World Health Organization.
• The principles also come from the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care adopted by the UN General Assembly Resolution 46/119 on December 17, 1991.
• The 10 basic principles of Mental Health Care Law:
• Promotion of mental health and prevention of mental disorders
• Access to basic mental health care
• Mental health assessments in accordance with internationally accepted principles
• Provision of the least restrictive type of mental health care
• Self-determination
• Right to be assisted in the exercise of self-determination
• Availability of review procedure
• Automatic periodical review mechanism
• Qualified decision-maker
• Respect of the rule of law

The Ontario Mental Health Act

• The Act outlines the powers and obligations of psychiatric facilities in Ontario.
• It dictates the admission process, the different categories of patient admission, with directives around assessment, care and treatment.
• The Act gives powers to police officers and Justices of the Peace to make orders for individuals who meet specific criteria, to undergo psychiatric examination by a physician.
• Patient rights include procedural details such as rights of appeal to the Consent and Capacity Board (CCB) that is related to if they are being detained against their will.

Criminal Code of Canada

• Part XX.1 Mental Disorder is regarding the criminal liability of accused persons by a "mental disorder" in the commission of a criminal offence.
• It describes a court's powers to order assessments, make determinations regarding fitness to stand trial, and give a verdict of “not criminally responsible” (NCR).
• It prescribes the composition and powers of Review Boards such as the ORB in Ontario..

Assessment and Hospitalization Under the Mental Health Act (MHA)

• Act is written in both French and English
• The Act Provides authorization to temporarily take away a person's rights under the Canadian Charter of Rights and Freedoms, specifically taking away a persons rights and can hold someone against their will for 72 hours
• The Mental Health Act is intended to act in another person's best interest, when they are incapable of doing so
• Great risk of abuse/misuse of the Act in Canada

Schedule 1 ( any facility that has a psychiatric unit)

• Provisions of the MHA apply only to patients in a psychiatric facility and admitted in one of the following ways:
• Voluntary patient - A person who has agreed to be admitted to the psychiatric facility for care, observation and treatment;
• Informal patient - A person who has been admitted with a substitute decision maker's consent under section 24 of the Health Care Consent Act (“HCCA”) on the basis of youth (under age of 11) or neurocognitive impairment
• Involuntary patient - A person with a Form 3/4, assessed by a psychiatrist and to meet certain criteria set out in section 20 of the MHA, following admitted and detained due to imminent risk to self, risk to others, or inability to care for self due to mental health
• Patients admitted under court order (Form 6 or 8) who are in a forensic program

Three Criteria For Assessment

• Mental health act assessment can only be given if
• Risk of harm to self
• Risk of harm to others
• Unable to care for self due to a mental illness

Form 2: Order for Examination by a Justice of the Peace

• Remains valid for a period of 7 days including the day it was signed and dated by the Justice of the Peace
• Applies to:
• Known mental illness
• When Police is called for a "wellness check"
• Police can apprehend patient under the mental health act and the family or anyone who knows the person well go to the justice of the peace and swear under oath.
• Police will bring the person to a schedule 1 psychiatric facility and stay with the person until the facility has accepted custody
• Police may apprehend a person under Section 17 of the Mental Health Act when they have reasonable cause and believe it would be dangerous to wait to proceed before a Justice of the Peace
• Allows the police to bring a person to an appropriate place for psychiatric assessment and the patient must be assessed upon arrival, and either:
• Placed on Form 1
• Admitted as a voluntary patient
• Leave without admission/with supports
• Family informs the police if there is anything they need to know.

Form 1: Application by Physician for Psychiatric Assessment

• Any physician in Ontario can sign a Form 1
• Physician personally examined the person within 7 days prior to signing the Form 1
• The doctor will use the exam and information provided by friends, relatives, hospital staff, police, EMS to form an opinion about a mental disorder, the type and degree of risk
• Form 1 is valid for 72 hours including the day it was signed and dated
• Once the patient is assessed, the should be placed in schedule 1 psychiatric facility
• Prior to the end of the 72-hour period, a Psychiatrist will assess patient
• Decision will be made in collaboration with patient, interdisciplinary team including nursing assessments and family on whether patient will continue hospitalization/admission as a voluntary patient, involuntary patient or discharged

Form 42: Notice to person of Application for Psychiatric Assessment (Form 1)

• A companion document to Form 1.
• When the person is at or arrives to the Schedule 1 facility and the Form 1 is completed, the attending Physician notes the date and time on the Form 1 and must give the person a Form 42.
• The date and time the Form 42 is delivered is also recorded on the Form 1
• Failure to provide the Form 42 can negate the legal authority provided by the Form 1.

Form 3: Certificate of Involuntary Admission

• Prior to the end of the 72-hour period of a patient being on a Form 1 a Psychiatrist will assess the patient and determine if the patient remains a risk to self, others or unable to care for self because of a mental illness.
• The patient MUST be assessed by a Psychiatrist who is different from whom completed the Form 1; only a psych doctor can fill out form 3 and has to be a different psych doctor to fill out form 3 than the admitting psych doctor
• The Form 3 is valid for 14 calendar days minus 1 day, including the day it was signed, and expires after midnight.

Form 30: Notice to patient under subsection 38(1) of the Act

• Form 30 (Notice to patient under subsection 38(1) of the Act) must be given to the patient immediately after a Form 3 or Form 4 is signed.
• The patient advocate office (PPAO) need to be notified as soon as form is given and completed which needs to happen within 24 hours
• The patient then has Rights to stay in hospital or contest form which creates a review board where rights advice notifies CCB to create a tribuninal (with a psychiatrist, lawyer, admitter taker, patient)
• The interdisciplinary team (either clerk or nursing staff) also process Form 3 and notify the Officer In-Charge (director of the mental health facility or charge nurse) of facility and Rights Advisor
• Rights Advisor meets with the patient to explain what the cerficate means and their right to have it heard by the consent and capacity board

Form 4: Certificate of Renewal

• A Psychiatrist has to the assess the patient by the end of the 14 days on the form 3 a certificate of involuntary admission if they remain a risk
• The psychiatrist will complete a form 4 to continue with the involuntary admission
• The patient can be involuntarily admitted for up to one month for the first Form 4, up to two months for the second Form 4 and up to three months for the third Form 4
• Each time the Form 4 is renewed the patient must be given a Form 30 and patient has the right to apply for a review by the CCB (After third renewal an automatic CCB occurs)

Form 5 - Change to Informal or Voluntary Status Subsection 20(7) of the Act

• When a patient is Certified on a Form 3 or 4 and they no longer meet the criteria of the Mental Health Act, the Psychiatrist cannot simply write, “discontinue the Form 3 or Form 4", instead complete the Form 5 to indicate patients improvements
• Once complete, The Form 5 is faxed by either the clerk or Nurse to the Consent and Capacity Board
• Must be completed and faxed prior to the patient being discharged, going out for a privilege or leaving the ward on a pass

Form 9: Order for Return

• Used when The patient is involuntary but absent without leave from hospital
• Any hospital staff member who has been delegated to do so by the Officer-in-Charge of the hospital/facility can sign the From 9
• The police are then authorized to return the patient to the nearest Schedule 1 facility to the place of apprehension
• The Order provides validity for one month from when the Form 9 is signed

How Doees a Person get Admitted to a Psychiatric Facility?

• Voluntarily or Under the order of someone else such as on a Form 1, Form 2, Independent Statutory Authority of Police -section 17, or Form 47

Key points

• MHA suspends an individual's civil liberties
• Forms detain people, all treatment occurs with consent ONLY
• Treatment is facilitated by the use of the therapeutic relationship through observation and empathic listening

Legal/Ethical Considerations in Mental Health Nursing

• Autonomy
• Restraints and seclusion
• Confidentiality

Autonomy in Detail

• By law, all individuals have the right to decide whether to accept or reject treatment
• The presence of psychotic thinking does not mean that the patient is mentally incompetent or incapable of understanding; he or she is still able to provide or deny consent
• A health care provider can be charged with assault and battery for providing life-sustaining treatment if the patients has not agreed to it
• Clients should receive all information such as all treatment alternatives available; why the most responsible practitioner believes this treatment is the most appropriate; outcomes; risks and adverse effects
• Treatment may be performed without obtaining informed consent the client's refusal to accept treatment under the following circumstances:
• mentally incompetent to make a decision and treatment is necessary to preserve life or avoid serious harm
• refusing treatment endangers the life or health of another
• an emergency and in no condition to exercise judgement
• the client is a child

Autonomy - Informed Consent in Detail

• The principle of informed consent is based on a person's right to self-determination and the ethical principle of autonomy
• Proper orders for specific therapies and treatments are required and must be documented in the patient's medical record
• Consent for surgery, electroconvulsive treatment, or the use of experimental drugs or procedures must be obtained
• Patients have the right to refuse participation in experimental treatments or research and the right to voice grievances and recommend changes in policies or services offered by the facility without fear of punishment or reprisal and to be effective, must be informed
• Patients must be informed of the following:
• The nature of their problem or condition
• The nature and purpose of a proposed treatment
• The risks and benefits of that treatment
• The alternative treatment options
• The probability of success of the proposed treatment
• The risks of not consenting to treatment
• The nurses role in obtaining informed consent is usually defined by agency policies through being a witness so legal liability lies with the physician
• Three major elements of informed consent:
• Knowledge: the client has adequate information
• Competency: cognition is not impaired or legal representation
• Free will: given consent voluntarily without pressure or coercion

Competency

• Is the capacity to understand the consequences of one's decisions
• Patients must be legally competent until declared incompetent through a legal proceeding
• Incompetent patients may have a legal guardian or representative who is responsible for giving or refusing consent, guardians are typically chosen for the patient while always considering the patients wishes
• Selection includes:

1. spouse
2. adult children or grandchildren
3. parents
4. adult siblings
5. adult nieces and nephews

• If a family member is either unavailable or the court may also appoint a court-trained and court-approved social worker, who will represent the province or territory.

Implied Consent

• Many procedures nurses perform have an element of implied consent
• If you approach the patient with medication and they expresses that they are willing occurs
• A nurse must clarifies the procedure and ensuring conveyed regardless When providing care, via implied consent, the nurse must be confident that the person understands, best of one abilities, risks

Restraints & Seclusion

• An individuals privacy and ersonal security via the Patient self-determination act 1991 with right to freedom from restraint or seclusion except emergencies
• the use of least restrictive means is always the shortest duration
• The use has been controversial so, efforts were made via regulations by accrediting bodies

Box 7:7 Contraindications

• Psychological inability to tolerate the experience of confinement or isolation
• Physical condition that may be exacerbated by restraint application
• Desire for punishment of patient or convenience of staff

Restraints

• Generally refers a set of leather or straps to restrain the extremities to avoid putting other or you in harm's way to give care
• locked area or medication
• Note most utilize Pinel restraints

Seclusion

• Another type in which client is confined or unable to leave alone in the minimally garnished room for their own safety with safe blanket material
• It is not always a room bed frame

Joint Commission Standards

• Should discontine the use or restraint with eval within one hour by MD
• Patients cannot be restraint and restrained
• Monitoring the physical and psychological well being of the patient