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S.M. 1991-92, c. 4
Bill 5, 2nd Session, 35th Legislature
The Mental Health Amendment Act
(Assented to: July 5, 1991)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Mental Health Act is amended by this Act.
Section 1 is amended by adding the following definitions in alphabetical order within the section:
"clinical record" means the clinical record or part of a clinical record compiled in a psychiatric facility with respect to a patient; («dossier médical »)
"guardian" means the parent of a minor or a person other than a parent who has been appointed guardian of the person of a minor by a court of competent jurisdiction; («tuteur»)
"nearest relative" means, with respect to a patient,
(a)the adult person first listed in the following clauses, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of 2 or more relatives described in any clause being preferred to the other of those relatives regardless of gender:
(i)spouse,
(ii)son or daughter,
(iii)father or mother,
(iv)brother or sister,
(v)grandfather or grandmother,
(vi)grandson or granddaughter,
(vii)uncle or aunt,
(viii)nephew or niece, or
(b)the Public Trustee, if there is no nearest relative within any description in clause (a) who is apparently mentally competent and available and willing to act on behalf of the patient; («parent le plus proche»)
"restrain" means to place under control when necessary to prevent harm to the patient or to another person by the minimal use of such force, mechanical means or medication as is reasonable having regard to the physical and mental condition of the patient; («maîtriser»)
"spouse", with respect to a patient, includes a person who although not married to the patient cohabited with the patient as the patient's spouse for at least 6 months immediately preceding the patient's admission to the psychiatric facility. («conjoint»)
Subsection 8(1) repealed and substituted
Subsection 8(1) is repealed and the following is substituted:
When a physician has examined a person and is of the opinion that
(a)the person is suffering from a mental disorder of a nature or quality that will likely result in serious harm to the person or to another person, or substantial mental or physical deterioration of the person; and
(b)the person is unwilling to undergo a voluntary psychiatric assessment;
the physician may apply to the medical officer in charge of a psychiatric facility for an involuntary psychiatric assessment of the person.
Subsection 9(5) repealed and substituted
Subsection 9(5) is repealed and the following is substituted:
An order under subsection (3) may be directed to an individual peace officer or to all peace officers of the locality within which the justice has jurisdiction, and shall direct the peace officer or peace officers to take the person forthwith to a place where the person may be detained for the involuntary examination.
Subsection 11(1) is amended by striking out "within 24 hours" and substituting "as soon as reasonably possible but no more than 24 hours".
Section 12 is amended by striking out "or other person".
Subsection 14(1) is amended by striking out "or other person".
Clause 15(a) is amended by striking out "or other person".
Subsection 16(1) repealed and substituted
Subsection 16(1) is repealed and the following is substituted:
Application for involuntary psychiatric assessment
A medical officer in charge of a psychiatric facility who receives an application for an involuntary psychiatric assessment of a person under subsection 8(1) shall ensure that the person is examined by a psychiatrist.
When a psychiatrist examines a person under subsection (1) and is of the opinion that
(a)the person is suffering from a mental disorder as a result of which the person is
(i)likely to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration if not detained in a psychiatric facility, and
(ii)in need of continuing treatment that can reasonably be provided only in a psychiatric facility; and
(b)the person is not suitable to undergo a psychiatric admission other than as an involuntary patient because the person refuses or lacks the capacity to consent to a voluntary admission;
the psychiatrist may admit the person as an involuntary patient of the psychiatric facility by completing and filing with the medical officer in charge a certificate of involuntary admission in the form prescribed by the regulations.
Determination of capacity to consent
In determining whether a patient lacks the capacity to consent to a voluntary admission under clause (1.1)(b), the psychiatrist shall consider whether the patient understands the nature and purpose of admission and whether the patient's ability to consent is affected by his or her condition.
Subsection 17(2) repealed and substituted
Subsection 17(2) is repealed and the following is substituted:
A psychiatrist shall make an assessment within 72 hours after the filing of an application under subsection (1), and if the prerequisites for admission as an involuntary patient as set out in subsection 16(1.1) are met, the psychiatrist shall complete a certificate of involuntary admission.
Despite subsection (2), if a patient has been a patient of the psychiatric facility for more than 72 hours when the application is filed, the assessment under subsection (2) shall be made within 24 hours after the filing of the application.
Subsection 19(1) is amended by striking out "subsection 16(1)" and substituting "subsection 16(1.1)".
Clause 21(2)(a) is amended by striking out "subsection 16(1)" and substituting "subsection 16(1.1)".
Clause 22(1)(b) repealed and substituted
Clause 22(1)(b) is repealed and the following is substituted:
(b)that it would be in the best interest of an involuntary patient in a psychiatric facility to be hospitalized in another jurisdiction and the patient or, where the patient lacks the capacity to consent, the patient's nearest relative, consents to the transfer to the other jurisdiction;
Subsection 23(2) repealed and substituted
Subsection 23(2) is repealed and the following is substituted:
Patient incapable of understanding
If at the time of admission, renewal, or change of status of a patient, the patient is apparently incapable of understanding the information mentioned in subsection (1), the psychiatrist shall also give the information in writing to the patient's nearest relative.
Subsection 23(3) is amended by striking out "notify the most immediately available adult member of the person's family" and substituting "also notify the person's nearest relative".Heading preceding section 24 rep. and sub.
The heading "PATIENT RIGHTS AND APPEALS" preceding section 24 is repealed and the following is substituted:
TREATMENT DECISIONS BY OTHERS
Section 24 repealed and substituted
Section 24 is repealed and the following is substituted:
Except as provided in this section and in sections 24.1 to 25, a patient of a psychiatric facility has the right to consent to or refuse psychiatric and other medical treatment.
Competency to make treatment decisions
As soon as reasonably possible after admission of a patient to a psychiatric facility, the attending physician shall determine whether the patient is mentally competent to make treatment decisions.
In determining whether a patient is mentally competent to make treatment decisions, the attending physician shall consider
(a)whether the patient understands
(i)the condition for which the treatment or course of treatment is proposed,
(ii)the nature and purpose of the treatment or course of treatment,
(iii)the risks and benefits involved in undergoing the treatment or course of treatment, and
(iv)the risks and benefits involved in not undergoing the treatment or course of treatment; and
(b)whether the patient's ability to make treatment decisions is affected by his or her condition.
A physician who is of the opinion that a patient is not mentally competent to make treatment decisions shall complete and file with the medical officer in charge a certificate to that effect with reasons for the opinion.
Notice to patient and nearest relative
Upon receipt of a certificate under subsection (4), the medical officer in charge shall
(a)send a copy of the certificate to the patient and to the patient's nearest relative; and
(b)notify the patient and the patient's nearest relative in writing of the right to have the physician's opinion reviewed by the review board by filing with the review board an application for review.
When a certificate has been filed under subsection (4), the attending physician shall periodically review the patient's condition and, if satisfied it is appropriate, the physician shall file with the medical officer in charge a statement of his or her opinion, with reasons, that the patient has regained the competency to make treatment decisions.
If satisfied that the physician's opinion is supported by his or her reasons, the medical officer in charge shall cancel the certificate of incompetency and notify the patient and his or her nearest relative of the cancellation.
Treatment decisions may be made on behalf of a patient who is a minor or who is not mentally competent by a person who is apparently mentally competent, is available and willing to make the decision and who is
(a)the patient's guardian, if the patient is a minor; or
(b)the patient's nearest relative, if the patient has no guardian.
Circumstances under which decision may be made
A person referred to in clause (1)(a) or (b), other than the Public Trustee, shall not make treatment decisions on behalf of a patient unless the person
(a)has been in personal contact with the patient within the preceding 12-month period;
(b)is willing to assume the responsibility for making treatment decisions; and
(c)makes a statement certifying his or her relationship to the patient and the facts set out in clauses (a) and (b).
A person authorized to make treatment decisions on behalf of a patient under clause (1)(a) or (b) shall do so
(a)in accordance with the wishes of the patient, if the person knows that the patient expressed such wishes when apparently mentally competent; or
(b)in accordance with what the person believes to be the best interests of the patient.
Determination of best interests
In order to determine the best interests of the patient in relation to treatment, a person referred to in clause (1)(a) or (b) shall have regard to all the relevant circumstances including the following:
(a)whether the condition of the patient will be or is likely to be improved by the treatment;
(b)whether the patient's condition will deteriorate or is likely to deteriorate without the treatment;
(c)whether the anticipated benefit from the treatment outweighs the risk of harm to the patient;
(d)whether the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a), (b) and (c).
Physician may rely on statement
If treatment decisions are made on a patient's behalf by a person referred to in clause (1)(a) or (b), other than the Public Trustee, that person's statement as to his or her relationship with the patient and as to the facts referred to in clauses (2)(a) and (b) can be relied on.
A physician acting on a treatment decision is not liable for failing to request the consent of the person entitled to make treatment decisions on behalf of the patient if, after reasonable inquiries are made within a period of 72 hours, the person cannot be found.
Except as provided in this section, an attending physician shall not administer treatment to a patient
(a)who is mentally competent to make treatment decisions, without the consent of the patient or, if the patient is a minor, without the consent of a person authorized by subsection 24.1(1) to make treatment decisions on the patient's behalf;
(b)who is not mentally competent, without the consent of a person authorized by subsection 24.1(1) to make treatment decisions on the patient's behalf; or
(c)unless the review board or the court has made an order authorizing the giving of specified psychiatric and other related medical treatment under section 25.
Exception for emergency medical treatment
Medical treatment may be given without consent to any patient of a psychiatric facility who is a minor or who in the opinion of a psychiatrist is not mentally competent, if there is imminent and serious danger to the life, a limb or a vital organ of the patient requiring immediate medical treatment.
Exception for psychiatric treatment to prevent harm
Pending consent on behalf of a patient or an order of the review board, psychiatric treatment may be given without consent to a patient of a psychiatric facility in order to keep the patient under control so as to prevent harm to the patient or to another person.
Method of psychiatric treatment
Treatment may be given under subsection (3) by the use of such force, mechanical means or medication as is reasonable having regard to the physical and mental condition of the patient.
Measures taken under the authority of this Act to treat or restrain a person without the person's consent shall be recorded in detail in the clinical record of the person's care and treatment in the psychiatric facility including
(a)where medication is used, an entry of
(i)the medicine used,
(ii)the method of administration,
(iii)the dosage administered, and
(iv)the frequency of administration; and
(b)where force or mechanical means are used to restrain the person,
(i)a statement that the person was restrained,
(ii)a description of the means of restraint,
(iii)a statement of the period of time during which the person was or is expected to be restrained, and
(iv)a description of the behaviour of the person that required that he or she be restrained or continue to be restrained.
Subsection 25(1) repealed and substituted
Subsection 25(1) is repealed and the following is substituted:
Application to review board re treatment
The attending physician of a patient may apply to the review board for an order authorizing the giving of specified psychiatric and other related medical treatment to a patient who is not mentally competent if the patient's nearest relative has refused to consent to the treatment.
Subsection 26(2) repealed and substituted
Subsection 26(2) is repealed and the following is substituted:
A certificate of leave is not effective without the patient's consent or, where the patient lacks the capacity to consent, without the consent of the patient's nearest relative.
Subsection 26(4) is amended
(a)by striking out "without notice" in that part of the subsection preceding clause (a); and
(b)by repealing clause (c) and substituting the following:
(c)the patient has failed to report as required by the certificate of leave after reasonable efforts have been made by staff of the psychiatric facility to
(i)locate the patient,
(ii)inform the patient of the failure to report or, if the patient is not mentally competent, inform the patient's nearest relative of the failure to report,
(iii)inform the patient of the possible issuance of a certificate of cancellation of leave, which would result in the patient's return to the psychiatric facility for assessment, and
(iv)provide assistance to the patient as required.
Subsection 26.1(2) repealed and substituted
Subsection 26.1(2) is repealed and the following is substituted:
Return of voluntary patient to facility
If a voluntary patient is absent from a psychiatric facility without the permission of the attending physician and there are reasonable and probable grounds for concern, documented by the hospital treatment staff, that the patient
(a)may constitute a danger to himself or herself or to another person; or
(b)may suffer substantial mental or physical deterioration if the patient is not detained in a psychiatric facility;
the medical officer in charge may issue an order to have the patient located by a peace officer who shall take the patient into custody and return the patient to the psychiatric facility.
Subsection 26.1(3) is amended by striking out "subsection 16(1)" and substituting "subsection 16(1.1)".
Sections 26.2 and 26.3 amended
Sections 26.2 and 26.3 are amended by striking out "subsection 16(1)" wherever it occurs and substituting "subsection 16(1.1)".
Section 26.4 repealed and substituted
Section 26.4 is repealed and the following is substituted:
There shall be a review board and the Lieutenant Governor in Council shall appoint a roster of psychiatrists, lawyers and persons who are not psychiatrists or lawyers as members of the review board.
The review board shall sit in panels of 3 members and each panel shall be composed of
(a)a lawyer who shall preside at meetings of the panel;
(b)a psychiatrist; and
(c)a person who is neither a lawyer nor a psychiatrist.
The minister, or a person designated by the minister for the purpose, shall assign the members to sit on the various panels of the review board from the roster established by the Lieutenant Governor in Council.
A quorum for a panel of the review board is the 3 members referred to in subsection (2).
A decision of a majority of the members of a panel is the decision of the review board.
A person is not eligible to act as a member of a panel of the review board in respect of an application made by a person if he or she
(a)is that person's spouse;
(b)is related to that person by blood or marriage;
(c)is a psychiatrist or physician who is treating or has treated that person;
(d)is an officer, employee or staff member of the psychiatric facility in which that person is being treated; or
(e)is a lawyer who is acting for or has acted for that person.
A reference in this Act to the review board means any panel of the review board.
Subsection 26.5(1) repealed and substituted
Subsection 26.5(1) is repealed and the following is substituted:
An application to the review board may be made regarding any aspect of the admission and treatment of a patient including an application
(a)to review the status of a patient;
(b)to review the cancellation of a certificate of leave under subsection 26(4);
(c)to review an opinion that a person is or is not mentally competent to make treatment decisions;
(d)to review an opinion that a person is or is not capable of managing his or her affairs.
Subsection 26.5(4) repealed and substutited
Subsection 26.5(4) is repealed and the following is substituted:
If a patient's nearest relative has refused consent to treatment on the patient's behalf, the nearest relative is a party in an application by a physician for authority to give treatment to the patient.
Subsection 26.5(6) repealed and substituted
Subsection 26.5(6) is repealed and the following is substituted:
The review board shall give 7 days written notice of the date, time and place of the hearing
(a)to every party;
(b)to every person who is entitled to be a party; and
(c)to any person who in the opinion of the review board may have a substantial interest in the application.
The following is added after subsection 26.6(1):
A hearing in respect of an application made by or on behalf of a patient shall begin as soon as reasonably possible after the application is received by the review board under subsection 26.5(1), and in any case within the period of time prescribed by regulation.
Subsection 26.7(1) is amended by adding "within 30 days of receipt of the review board's decision or order" after "court".
Subsection 26.9(1) repealed and substituted
Subsection 26.9(1) is repealed and the following is substituted:
In this section, "health profession" means the practice of medicine under The Medical Act and the practice of any other profession that is prescribed by the regulations. («profession médicale»)
Subsection 26.9(3) is amended
(a)in clause (c), by striking out "or other committee of the patient" and substituting "where the Public Trustee is the committee of the person"; and
(b)by adding "or" at the end of clause (i) and by adding the following as clauses (j) and (k):
(j)the standards committee of a psychiatric facility, including a medical staff committee established for the purpose of studying or evaluating medical practice in a psychiatric facility; or
(k)any body with statutory responsibility for the discipline of members of a health profession or for the quality of standards of professional services provided by members of a health profession.
The following is added after subsection 26.9(3):
Clinical records kept confidential
Notwithstanding anything in this Act or any other law,
(a)a clinical record and information from a clinical record disclosed under clause (3)(j) or (k) shall be treated as private and confidential information by the committee or body who receives it, including its legal advisors and assistants, and shall not be released or disclosed in any manner that would be detrimental to the personal interest, reputation or privacy of the patient; and
(b)if a clinical record is used as evidence in an investigatory or disciplinary proceeding by a body referred to in clause (3)(k),
(i)neither the clinical record nor information from the record shall, except by order of the court, be disclosed or made available to any person other than the parties to the proceeding, the members of the tribunal conducting the proceeding and their legal advisors and assistants,
(ii)the proceeding or that part of the proceeding that concerns the clinical record shall be held in private, and
(iii)on completion of the proceeding, the clinical record shall be returned forthwith to the medical officer in charge.
Subsection 26.9(4) is amended by striking out "and is mentally competent".
Subsection 26.9(6) is amended by striking out "while the person is a patient".
Clause 26.9(9)(a) repealed and substituted
Clause 26.9(9)(a) is repealed and the following is substituted:
(a)request the medical officer in charge to correct the information in the clinical record if the person believes there is an error or omission in the clinical record;
Subsection 26.9(14) is amended
(a)by adding "(3)," before "(10)"; and
(b)by adding "or a committee or body referred to in clause (3)(j) or (k)" after "review board".
Subclause 26.10(1)(b)(iii) repealed and substituted
Subclause 26.10(1)(b)(iii) is repealed and the following is substituted:
(iii)to communicate with the Public Trustee if the Public Trustee is committee of the patient,
Subsection 26.11(1) repealed and substituted
Subsection 26.11(1) is repealed and the following is substituted:
As soon as reasonably possible after admission of a patient to a psychiatric facility, a physician shall examine the patient and, if the physician is of the opinion that the person is not capable of managing his or her affairs having regard to all relevant circumstances, including
(a)the nature and degree of the person's mental condition;
(b)the nature of the person's financial or legal affairs; and
(c)the effect of the person's condition upon the ability of the person to manage his or her financial or legal affairs;
the physician shall, in addition to any other certificate required by this Part, complete a certificate with reasons as to his or her opinion that the person is not capable of managing his or her affairs.
Clause 26.11(2)(b) is amended by striking out "most immediately available adult member of the person's family" and substituting "person's nearest relative".
Clause 26.12(1)(c) is amended by striking out "most immediately available adult member of the person's family" and substituting "person's nearest relative".
Subsection 26.12(2) repealed and substituted
Subsection 26.12(2) is repealed and the following is substituted:
Upon receipt of the order of supervision, the Public Trustee is the committee of the person and of the estate of the person and, without reference to the court, has the powers described in sections 69 and 70 and subsection 80(1.2) until
(a)otherwise ordered by the court under subsection (3); or
(b)the certificate is cancelled.
Subsection 26.12(3) repealed and substituted
Subsection 26.12(3) is repealed and the following is substituted:
Any person provided with a certificate and order under subsection (1) or any other person with leave of the court may apply to the court within 30 days of receiving the certificate and order, or such further period as the court may allow, for an order
(a)annulling the order of supervision; or
(b)appointing some person other than the Public Trustee to act as committee of the estate of the person;
and, on hearing the application, the court may make any order under this Act that it considers appropriate.
Subsection 26.12(4) repealed and substituted
Subsection 26.12(4) is repealed and the following is substituted:
Action while application pending
Notice of an application made under subsection (3) shall be served on the Public Trustee and upon receipt of the notice the Public Trustee shall not, pending the decision of the court, administer the estate except to the extent necessary
(a)to gather in the assets and preserve the estate;
(b)to pay debts; and
(c)to provide for the maintenance of the person and the family of the person.
Subsection 26.12(5) is amended by adding "and the order of supervision" after "cancel the certificate".
Subsections 80(1) to 80(1.3) rep. and sub.
Subsections 80(1) to 80(1.3) are repealed and the following is substituted:
When a person who has no committee
(a)is found to be incapable of managing his or her affairs under section 26.11;
(b)is found to be incapable of managing his or her affairs under section 26.12;
(c)is placed in an institution or under supervision under Part II; or
(d)is declared to be mentally disordered under section 56 or is declared to be incapable of managing his or her affairs under section 76;
the Public Trustee is the committee of the person and the estate of the person.
Powers of Public Trustee re certain legal proceedings
When the Public Trustee is the committee of a person described in clause (1)(a), the Public Trustee may commence, compromise or settle any legal proceeding that does not relate to the estate of the person.
Other powers of Public Trustee
When the Public Trustee is the committee of a person described in clause (1)(b), (c) or (d), the Public Trustee may
(a)determine where and with whom the person shall live either temporarily or permanently;
(b)commence, compromise or settle any legal proceeding that does not relate to the estate of the person; and
(c)consent to medical or psychiatric treatment or health care on the person's behalf if
(i)a physician informs the Public Trustee that the person is not mentally competent to make treatment decisions given the criteria set out in subsection 24(3); and
(ii)the person is not a patient in a psychiatric facility.
When Public Trustee is nearest relative
For greater certainty, nothing in clause (1.2)(c) affects the right of the Public Trustee to make treatment decisions on behalf of a patient under Part I in circumstances where the Public Trustee is the patient's nearest relative.
Limitation on Public Trustee's powers
The Public Trustee shall,
(a)when exercising any power conferred by subsection (1.2), consult with the person's nearest relative when reasonably possible; and
(b)when exercising the power conferred by clause (1.2)(c), do so in accordance with the best interests of the person having regard to the principles and the criteria described in subsections 24.1(3) and (4).
The Public Trustee may only place a person pursuant to clause (1.2)(a) with a person who consents to the placement and the person may on reasonable notice to the Public Trustee withdraw his or her consent and the Public Trustee shall then make a new determination under clause (1.2)(a).
Subsection 87(1) is amended by striking out "$1,000." and substituting "$2,500."
Section 88 is amended by striking out "$500." and substituting "$1,000." in the heading and in the section.
Section 106 is amended by repealing clause (e) and substituting the following:
(e)prescribing health professions for the purpose of subsection 26.9(1);
(f)prescribing the manner in which applications may be made to the review board;
(g)governing proceedings before the review board;
(h)for the purpose of subsection 26.6(1.1), prescribing the period of time within which a hearing of the review board shall begin;
(i)prescribing the period of time within which decisions of the review board must be made;
(j)providing for the remuneration and expenses of members of the review board;
(k)generally for the purpose of carrying out the provisions of this Act.
This Act comes into force on September 1, 1991.