Understanding LTC Legislation:
Rights Advice in Ontario
New Directions in Seniors’ Mental Health
Canadian Coalition for Seniors’ Mental Health
September 24, 2007
Linda Carey, Manager Rights Advice Services
David Simpson, Program Manager
Psychiatric Patient Advocate Office
Disclosure Statement
• There is no real or apparent conflict of interest
which would influence the content of this
presentation.
• However, the Psychiatric Patient Advocate Office
may be considered as an organization which
would have the ability to provide the necessary
rights advice service contained in the Long-Term
Care Homes Act (Bill 140).
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History
• Ministry of Health and Long-term Care
• Creation announced in May 1982
• May 1983 the program was operational in
the 10 provincial psychiatric hospitals
• Arm’s length relationship with government
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Mandate
• Mandate – to protect the legal rights and
entitlements of inpatients in the provincial
psychiatric hospitals
• Recognition that vulnerable people may
require the services of an advocate to
protect their rights
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Core Services
• Advocacy
•
•
•
•
instructed
non-instructed
systemic (local, regional, provincial)
self-advocacy
• Rights Advice
• Education
• consumers, public, health professionals, families
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Advocacy
• Instructed – Advocate receives an instruction
from client as to what is to be done
• Non-Instructed – client is unable to provide an
instruction to Advocate – usually deals with rights
abridgement, quality of life or care issues
• Systemic – advocate for system change at various
levels e. g. facility, provincial, federal
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Advocacy Services
• 10 current and former provincial psychiatric
hospitals – 12 patient advocates assisted with
approximately 3,600 instructed and non-instructed
issues in 2006
• Systemic issues at the local, provincial and federal
levels (e.g., mandatory inquests, police records,
hospital management of finances)
• Intervention in some cases: court, inquests,
tribunals
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Rights Advice
• 10 former and current provincial psychiatric
hospitals (PPH)
• All individuals living in the community who are
being considered for a community treatment order
and their substitute decision-makers, if any
• 55 general and specialty hospitals
• Approximately 21,000 first rights advice visits in
2006 in 45 languages
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Education
• Website (www.ppao.gov.on.ca) – 1.68 million hits
in 2006 from 75 countries
• Publication of InfoGuides on 39 topics
• Presentations at workshops and conferences
• Provincial public education campaign
• Participation on hospital, community, Ministry
based committees, workgroups and task forces
• Letters to the editor, media interviews
• Journal articles
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Rights Advice – Mental Health
Act
• Standard form of information provided to
patients in psychiatric facilities when
experience change in status
• Dec. 1, 2000 Rights Advice extended into
community for persons subject to a
community treatment order (CTO) and
SDM, if any
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Rights Advice....
• Provides protection to individuals who
experience a loss of freedom to make their
own decisions
• Rights Advice explanation:
– what freedom is lost
– options to dispute
– assistance to apply for review and obtain legal
counsel
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Why Rights Advice Is
Necessary
• Purpose of Rights Advice is to ensure that
inpatients whose legal status has changed
and those subject to CTOs understand what
has happened to them and what options are
available to them
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Why....
• Due process concerns where health care
delivery is not consensual
• Right is taken away
–
–
–
–
held against his/her will
incapable - treatment, property
incapable - PHI
community treatment order
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Why....
• Physician has invoked authority given to
him/her by Statute
• Rights Advice is an important component of
the system of checks and balances
necessary when the State takes away a
person’s basic right
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Mandatory Rights Advice
• Canadian Charter of Rights and Freedoms April 17, 1982
• Guaranteed right, on detention, to know the
reason and to retain and instruct legal
counsel
• Legislation was reviewed to determine if it
complied with the Charter
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Mandatory….
• Due process required for persons whose
rights were suspended under Mental Health
Act (MHA)
• MHA amended to incorporate due process
issues
• Rights Advice scheme added to MHA
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Rights Advice....
• Authority for Rights Advice is contained in
the Mental Health Act and its regulations
• Bill 140 – Long-Term Care Homes Act
– day receives Royal Assent
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History Of Delivery
• 1986 - PPAO Rights Advisers in Provincial
Psychiatric Hospitals
• 1986 - other facilities sent notice to Legal
Aid and lawyer sent to provide Rights
Advice
• April 3, 1995 - Advocacy Commission
provided Rights Advice in non PPHs
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History....
• March 29, 1996
– Advocacy Commission disbanded
– created current system for Rights Advice
delivery
• Current
– PPAO provides Rights Advice in PPHs and
former PPHs
– other facilities designate Rights Adviser
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Other Facilities
• Facilities designate specific persons as
Rights Advisers
• Designated person may be
– staff member who has Rights Advice added to
other duties
– independent contractor
– volunteer
– PPAO as of December 1, 2000
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Community Treatment Orders
• Who provides Rights Advice for a
Community Treatment Order
– person is an inpatient in a psychiatric facility
• Rights Adviser for facility
– person is not an inpatient in a psychiatric
facility
• Psychiatric Patient Advocate Office
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Definition of a Rights Adviser
(MHA)
• A person or a member of a category of
persons, qualified to perform the functions
of a Rights Adviser and designated by a
psychiatric facility, the Minister or
regulation to perform those functions
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Definition....
• But does not include
– a person involved in the direct clinical care of
the person to whom rights advice is to be given,
or
– a person providing treatment or care and
supervision under a community treatment order
(CTO)
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Qualifications
• Regulations to the MHA establish qualifications to
be met by a Rights Adviser
– knowledgeable about the rights to apply to the Consent
and Capacity Board under the MHA, HCCA and
PHIPA
– knowledgeable about the workings of the Board, how to
contact and make applications to the Board
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Qualifications....
– knowledgeable about how to obtain legal services
– must have communication skills necessary to perform
effectively the functions of a Rights Adviser
– must have successfully completed a training course for
Rights Advisers approved by the Minister and been
certified as having completed the course - PPAO
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Independence of Rights
Advice
• Regardless of what classification of people
deliver Rights Advice, it must not be seen to
create a conflict of interest
• Legal axiom
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Client-Centred
• A client-centred approach is a fundamental
feature of Rights Advice
• Operate independently of those providing
care to the client
• Must honour this approach to effectively
deliver Rights Advice
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Client….
• Rights Adviser must act in a professional
manner when providing Rights Advice
• Treat the client as an individual
• The interests of the client are paramount
• Personal views and beliefs must be set aside
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Client....
• Rights Adviser is not a member of the
treatment team
• Rights Adviser does not have access to the
record of personal health information
• Rights Adviser does not make decisions for
the client
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Client....
• Rights Adviser is neutral and nonjudgmental
• Rights Adviser takes instruction whether
agrees or not
• System of checks and balances
• Safeguards and protections in place in
system
– ie Consent and Capacity Board
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Other
• Rights Adviser is one of many people in the
client’s life
– statutory framework - safeguards
• Rights Adviser must work within the
statutory framework and cannot remove the
safeguards
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Capacity To Instruct
• The threshold for capacity to instruct a
Rights Adviser is purposefully low
• Thus, almost all clients are able to provide
an instruction
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Capacity....
• Client has capacity if the client can express
a wish to take an action which is
• legal
• not impossible
• within the scope of the Rights Adviser role
• If client meets test, Rights Adviser acts on
instruction
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Capacity....
• Client has the right to apply to the Consent
and Capacity Board for a review, to retain
and instruct legal counsel, and to apply for
Legal Aid even if physician’s decision has
limited their decision making authority ie
incapable re treatment
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Rights Adviser
• Role is to provide information and to assist
the client in exercising rights, if requested
• Does not decide whether it is in the client’s
“best interests” to apply to CCB
• Does not decide client should not exercise
right as upsetting
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Confidentiality
• Rights Adviser should not divulge
information to anyone, even treatment team,
unless he/she has client’s permission
• Rights Adviser does not have access to the
record of personal health information
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Confidentiality....
• Rights Adviser is required to inform staff
that Rights Advice has been given (Form
50)
• Confidentiality not protected by law such as
solicitor-client privilege
• Rights Adviser could be subpoenaed to
court, inquest
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Confidentiality....
• Breach confidentiality
– with permission of client
– when client reveals intention to harm self or
others and risk not known to treatment team
– involuntary and reveals plan to leave
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Triggers - Rights Advice - MHA
• Being made involuntary (F. 3)
• Continued as involuntary (F. 4)
• Finding of incapacity to manage property
(F. 21)
• Finding of incapacity to manage property
continued (F. 24)
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Trigger....
• Finding of incapacity to consent to the
collection, use or disclosure of personal
health information
• Admission of 12 to 15 year old informal
patient, and every three months thereafter
(F. 27)
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Trigger....
• Finding of incapacity to consent to
treatment of a mental disorder (F. 33)
• Before physician issues or renews a
community treatment order (CTO) (F. 49)
– person
– substitute decision-maker, if any
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Long-Term Care Homes Act
• Rights Adviser is a person designated by or
in accordance with the regulations as a
rights adviser
• Secure unit is an area within a long-term
care home that is designated as a secure unit
by or in accordance with regulations
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Long-Term….
• Two rights advice situations
– incapable resident (already in home) being
transferred to a secure unit within home with
the consent of their substitute decision-maker
(SDM)
– incapable person is being placed (going to
home) in a secure unit in a home
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Long-Term….
• In home transfer to secure unit - licensee of
home shall promptly
– give the resident a written notice, and
– notify a rights adviser
• Resident may refuse to meet with the rights
adviser
• “meet with” suggests a face to face meeting
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Long-Term….
• Rights Adviser shall promptly meet with the
resident and
– explain resident’s right to apply to the Consent
and Capacity Board (CCB) to review whether
SDM’s decision follows principles for giving or
refusing consent set out in Health Care Consent
Act and other matters in regulations
– upon request, assist resident to apply to CCB
and to obtain legal services
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Long-Term….
• Rights Adviser shall comply with
regulations providing how fulfill
requirements of role
• Resident not to be transferred until
– written notice given and rights adviser notified,
and
– rights adviser notifies licensee that resident has
received rights advice or refused rights advice
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Long-Term….
• Written notice shall inform resident
– of the reason for the transfer,
– that resident is entitled to apply to the CCB to
determine if SDM followed principles,
– that resident has right to retain and instruct
legal counsel without delay, and
– other matters provided by regulation.
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Long-Term….
• Person can not be admitted to secure unit on
consent of SDM unless placement co-ordinator
has
– given the person a written notice, and
– notified a rights adviser;
– rights adviser has met with person and explained right
to apply to CCB to review whether SDM’s decision
follows principles for giving or refusing consent set out
in Health Care Consent Act and other matters in
regulations, or
– person has refused to meet with the rights adviser
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Long-Term….
• “meet with” suggests a face to face meeting
• Rights adviser shall, upon request, assist
resident to apply to CCB and to obtain legal
services
• Rights Adviser shall comply with
regulations providing how fulfill
requirements of role
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Long-Term….
• Written notice shall inform person
– of the reasons for the admission,
– that resident is entitled to apply to the CCB to
determine if SDM followed principles,
– that resident has right to retain and instruct
legal counsel without delay, and
– other matters provided by regulation.
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Long-Term….
• Placement co-ordinator may request that
rights adviser give person the written notice
on his/her behalf
• Requirements re written notice and rights
advice must be satisfied within 3 months
prior to admission
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Long-Term….
• Rights adviser shall notify the placement
co-ordinator if the he/she is aware that
person intends to apply to the CCB or if
another person intends to apply to the CCB
to be appointed as a representative to give
or refuse consent to the admission
• Admission not authorized pending CCB
hearing
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Long-Term….
• Some unanswered questions
– when Bill 140 will receive Royal Assent
– who will provide the rights advice to the
resident or the person to be admitted
– requirements for rights adviser to fulfill
obligation
– definition of a secure unit
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Contact Information
Psychiatric Patient Advocate Office
55 St. Clair Avenue West, Suite 802, Box 28
Toronto, ON, M4V 2Y7
Telephone: (416) 327-7000 or 1-800-578-2343
Website: www.ppao.gov.on.ca
E-mail: [email protected]
RIGHTS
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