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An Act to amend The Mental Health Act

R.S.M. 1987 Supp., c. 23

An Act to amend The Mental Health Act

Definition of "committee"

1

The definition of "committee" in section 1 of The Mental Health Act, chapter M110 of the Re-enacted Statutes of Manitoba, 1987 is repealed and the following clause is substituted therefor:

"committee" means a person to whom the estate of a mentally disordered person, or to whom the custody of a mentally disordered person, is committed under this Act; ("curateur")

Definition of "mental disorder".

2

The definition of "mental disorder" in section 1 of the Act is repealed and the following clause is substituted therefor:

"mental disorder" means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life and except in Part I includes mental retardation; . ("trouble mental")

Repeal of certain definitions.

3

Section 1 of the Act is further amended by repealing the definition of "addiction", "mental illness", "psychoneurosis" and "psychopathic disorder".

Subsec. 4(1) rep. and sub.

4

Subsection 4(1) of the Act is repealed and the following subsection is substituted therefor:

Authority of Director of Psychiatric Services.

4(1)

The director may

(a) authorize in writing the transfer of a patient from one psychiatric facility to another;

(b) interview relatives of patients and such other persons as may be necessary as to the history and circumstances of any patient;

(c) call in for advice and consultation such medical and other experts as, in the case of any patient, he or she may deem advisable;

(d) designate in writing any suitably qualified person to act in his or her behalf to carry out any or all of the duties to be carried out by him or her;

(e) perform or carry out such further and other matters as the Lieutenant Governor in Council may by order confer upon him or her.

Cl. 4(2)(d) rep. and sub.

5

Clause 4(2)(d) of the Act is repealed and the following clause is substituted therefor:

(d) unless otherwise directed by the director, refuse to admit or detain any person as a voluntary patient; and.

Sec. 6 rep. and sub.

6

Section 6 of the Act is repealed and the following section is substituted therefor:

Modes of admission.

6

Any person in Manitoba who is mentally disordered or is believed to be in need of treatment such as is provided in a psychiatric facility may be admitted thereto as a voluntary patient or as an involuntary patient as hereinafter provided.

Subsecs. renumbered.

7(1)

Subsections 18(2), 18(3) and 19 are renumbered as subsections 92.1(1), (2) and (3) respectively.

Secs. 7 to 26.3 rep. and sub.

7(2)

Sections 7 to 26(19) of the Act are repealed and the following sections are substituted therefor:

VOLUNTARY ADMISSION

Application for admission by person in need of treatment.

7(1)

Any person in Manitoba who believes himself or herself to be, or to be about to become, in need of treatment such as is provided in a psychiatric facility may apply for admission to a psychiatric facility and the medical officer in charge of the psychiatric facility may, subject to subsection (2), admit the person as a voluntary patient.

No admission unless necessary.

7(2)

No person shall be admitted as a voluntary patient at a psychiatric facility unless, in the opinion of the medical officer in charge of the psychiatric facility, the person requires or is in need of psychiatric examination, care and treatment that can be provided only in an in-patient psychiatric facility.

Patient may leave.

7(3)

Any voluntary patient may, subject to subsection (4) and (5), leave the psychiatric facility at any time or refuse any treatment suggested.

Written refusal.

7(4)

Where a person contrary to medical advice wishes to leave a psychiatric facility pursuant to subsection (3), the person shall sign a request for discharge.

Detention.

7(5)

Where a member of the hospital treatment staff of the psychiatric facility has reasonable grounds to believe that a voluntary patient seeking to be discharged

(a) is suffering from a mental disorder;

(b) is in need of an examination by a physician to determine whether an application under subsection 8(1) should be made; and

(c) is likely to cause harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration if the person leaves the facility;

the member may restrain the person and arrange for a physician to examine the person within 24 hours.

INVOLUNTARY PSYCHIATRIC EXAMINATION AND ASSESSMENT

Application for involuntary psychiatric assessment

8(1)

Where 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 likely will result in

(i) serious harm to the person,

(ii) serious harm to another person, or

(iii) substantial mental or physical deterioration of the person; and

(b) the person is unwilling to undergo voluntary psychiatric assessment;

the physician may make application for an involuntary psychiatric assessment of the person.

Contents of application.

8(2)

An application under subsection (1) shall be in the form prescribed by the regulations and the physician who signs the application shall set out in the application,

(a) that the physician personally examined the person who is the subject of the application;

(b) the date on which the physician examined the person;

(c) that the physician made careful inquiry into the facts necessary to form an opinion as to the nature and degree of severity of the person's mental disorder; and

(d) the reasons for the application, including the facts upon which the physician bases his or her opinion as to the nature and degree of severity of the person's mental disorder and its likely consequences, distinguishing between facts observed by the physician and matters communicated to the physician by another person.

Signing.

8(3)

An application under subsection (1) is not valid unless the physician signs it within two days of the date of the examination.

Justice's order for medical examination.

9(1)

Any person may make a written statement under oath before a justice requesting an order for the involuntary examination of another person by a physician and setting out the reasons for the request, and the justice shall receive the statement.

Procedure.

9(2)

A justice who receives a statement under subsection (1) shall consider the statement and, where the justice considers it desirable to do so, hear and consider without notice to the person named in the statement the allegations of the person who made the statement and the evidence of any witnesses.

Order.

9(3)

After a hearing under subsection (2), the justice may issue an order for the involuntary examination of the other person by a physician if the justice has reasonable cause to believe that the person

(a) is apparently suffering from a mental disorder;

(b) is likely to cause serious harm to himself or herself or to others or to suffer substantial mental or physical deterioration;

(c) is in need of examination to determine whether he or she should be assessed; and

(d) is refusing to be medically examined.

Endorsement when criteria not established.

9(4)

Where the justice considers that the criteria set out in subsection (3) have not been established, the justice shall so endorse the statement received under subsection (1).

Order to take into custody.

9(5)

An order under subsection (3) for the involuntary examination of a person by a physician shall direct one or more of

(a) a peace officer named in the order;

(b) an individual named in the order;

(c) any member of a class named in the order;

to take the person named or described in the order into custody and take the person forthwith to a place where the person may be detained for the involuntary examination.

Term of order.

9(6)

An order under subsection (3) is valid for a period of seven days from and including the day on which it is made.

Peace officer.

10(1)

A peace officer may take a person into custody and take him or her forthwith to a place for involuntary examination by a physician if

(a) the peace officer has reasonable grounds to believe that the person

(i) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself, or

(ii) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her, or

(iii) has shown or is showing a lack of competence to care for himself or herself; and

(b) the peace officer is of the opinion that the person is apparently suffering from a mental disorder of a nature that likely will result in

(i) serious harm to the person,

(ii) serious harm to another person, or

(iii) substantial mental or physical deterioration of the person; and

(c) the urgency of the situation does not allow for a judicial order for medical examination.

Reasonable measures.

10(2)

A peace officer who is proceeding under subsection (1) may take any reasonable measure including the entering of any premises to take the person into custody.

Time of examination.

11(1)

Where a person is taken in custody for involuntary examination by a physician under this Act, the examination shall take place within 24 hours after the person arrives at the place of examination.

Place of examination.

11(2)

Where practicable, the place of examination shall be an appropriate health care setting.

Duty to inform.

12

A peace officer or other person who takes a person into custody for the purpose of taking the person for an involuntary examination by a physician or for an involuntary psychiatric assessment under this Act shall promptly inform the person,

(a) where the person is being taken;

(b) that the person is being taken for an involuntary examination by a physician or for an involuntary psychiatric assessment and the reasons therefor; and

(c) that the person has the right to retain and instruct counsel.

Information at place of examination.

13

Upon arrival at the place of examination or involuntary psychiatric assessment or as soon thereafter as the person appears to be mentally competent to understand the information, the person in charge of the place shall ensure that the person is informed

(a) where the person is being detained;

(b) the reason for the detention; and

(c) that the person has the right to retain and instruct counsel.

Duty to retain custody.

14(1)

A peace officer or other person who takes a person into custody for the purpose of taking the person for involuntary examination by a physician or of taking the person to a psychiatric facility shall remain at the place of examination or at the facility and shall retain custody of the person until the examination is completed or the person has been admitted as a patient in the facility.

Duty to return person.

14(2)

Where a person is taken to a psychiatric facility or other health facility for involuntary examination by a physician or for an involuntary psychiatric assessment and it is decided not to apply for an involuntary psychiatric assessment of the person or it is decided not to admit the person as a patient of the facility, the person who brought the person to the psychiatric facility or other health facility shall, where practicable, arrange for the return of the person to the place where the person was when taken into custody or to another appropriate place.

Involuntary psychiatric assessment.

15

An application by a physician under subsection 8(1) is sufficient authority,

(a) for any peace officer or other person to take the person into custody as soon as possible, but not later than seven days from and including the day that the application is signed, and to take the person to any hospital, all or part of which has been designated as a psychiatric facility;

(b) to detain, restrain and observe the person in a psychiatric facility for not more than 72 hours; and

(c) for a psychiatrist to examine and assess the person's mental condition to determine whether an involuntary psychiatric admission is necessary.

INVOLUNTARY PATIENT

Involuntary admission.

16(1)

A psychiatrist in a psychiatric facility who has received an application for an involuntary psychiatric assessment of a person under subsection 8(1) and who has examined the person 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 if the psychiatrist is of the opinion that

(a) the person is suffering from a mental disorder as a result of which

(i) he or she is likely to cause serious harm to himself, herself or others or to suffer substantial mental or physical deterioration if not detained in a psychiatric facility ;

(ii) the person is in need of continuing treatment that can reasonably be provided only in a psychiatric facility; and

(b) the person is unwilling to agree to a voluntary admission.

Duty of psychiatrist, voluntary admission.

16(2)

A psychiatrist who has examined a person in a psychiatric facility and who has assessed the person's mental condition may admit him or her as a voluntary patient of the psychiatric facility if the psychiatrist is of the opinion that the person is suffering from mental disorder, is in need of the psychiatric treatment provided in a psychiatric facility and is suitable for admission as a voluntary patient.

Duty of psychiatrist, release.

16(3)

A psychiatrist who has examined a person in a psychiatric facility, has assessed the person's mental condition and is of the opinion that the prerequisites set out in this section for admission as an involuntary patient or as a voluntary patient are not met shall release the person, subject to any detention that is lawfully authorized otherwise than under this Act.

Psychiatrist who applies cannot certify.

16(4)

A psychiatrist who completes an application for involuntary psychiatric assessment of a person shall not complete the certificate of involuntary admission in respect of the person.

Release of person after 72 hours.

16(5)

If, after 72 hours of detention, a person has not been

(a) admitted to the psychiatric facility as an involuntary patient under subsection (1) or as a voluntary patient under subsection (2); or

(b) released by a psychiatrist under subsection (3);

the medical officer in charge shall ensure that the person is promptly informed that the person has the right to leave the psychiatric facility, subject to any detention that is lawfully authorized otherwise than under this Act.

Contents of certificate.

16(6)

The psychiatrist who signs a certificate of involuntary admission shall set out in the certificate,

(a) that the psychiatrist personally examined the person who is the subject of the certificate;

(b) the date or dates on which the psychiatrist examined the person;

(c) the psychiatrist's opinion as to the nature and degree of severity of the person's mental disorder;

(d) the psychiatrist's diagnosis or provisional diagnosis of the person's mental disorder; and

(e) the reasons for the involuntary admission including the facts upon which the psychiatrist bases his or her opinion as to the nature and degree of severity of the mental disorder and its likely consequences distinguishing between facts observed by the psychiatrist and matters communicated to the psychiatrist by another person.

Change from voluntary to involuntary patient.

17(1)

After examining a voluntary patient and assessing the patient's mental condition, the attending physician may request a change of status for the patient to that of an involuntary patient by completing and filing with the medical officer in charge an application for psychiatric assessment that meets the requirements of subsection 8(1).

Psychiatric assessment

17(2)

Where an application has been filed under subsection (1), a psychiatrist shall make the assessment and, where the prerequisites for admission as an involuntary patient set out in subsection 16(1) are met, shall complete a certificate of involuntary admission.

Admission by order of L. G. in C.

18(1)

Where the Lieutenant Governor in Council so directs, a person

(a) who is a prisoner confined in a penal institution; or

(b) who is convicted of an offence; or

(c) who is acquitted of an offence because of insanity;

shall be admitted to a psychiatric facility as an involuntary patient and such a patient shall not be discharged from the psychiatric facility except upon the order of the Lieutenant Governor in Council or by order of the board of review or of the court.

Removal of prisoners to a psychiatric facility.

18(2)

Where in the opinion of a physician, a person confined in a common gaol and charged with or convicted of an offence is mentally disordered, the director may cause the person to be removed to a psychiatric facility for examination, care, and treatment; and that person shall not be discharged from the psychiatric facility or returned to the common gaol unless in the opinion of the director or medical officer in charge he or she is fit to be discharged or returned to the common gaol.

Discharge of prisoners confined in a psychiatric facility.

18(3)

Except for the purpose of returning the patient to his or her place of imprisonment, nothing in this section authorizes the discharge of a patient who is imprisoned for an offence and whose sentence has not expired.

Certificate of renewal.

19(1)

Shortly before the expiry of a certificate of involuntary admission, the attending psychiatrist shall examine the patient and assess the patient's mental condition and may renew the patient's status as an involuntary patient by completing and filing with the medical officer in charge a certificate of renewal, if the prerequisites for admission as an involuntary patient set out in subsection 16(1) are met and the patient shall be similarly examined before the expiry of the certificate of renewal.

Release.

19(2)

If the attending psychiatrist does not renew the patient's status as an involuntary patient, the psychiatrist shall promptly inform the patient that the patient has the right to leave the psychiatric facility, subject to any detention that is lawfully authorized otherwise than under this Act.

Contents of certificate.

19(3)

Subsection 16(6) applies with such modifications as the circumstances require in respect of a certificate of renewal.

Term of certificates.

19(4)

An involuntary patient may be detained, restrained, observed, examined and treated in a psychiatric facility

(a) for not more than three weeks under a certificate of involuntary admission; and

(b) for not more than three additional months under a first or subsequent certificate of renewal.

Examination of certificate.

20(1)

Forthwith after the filing of a certificate of involuntary admission or a certificate of renewal, the medical officer in charge shall examine the certificate to ascertain whether or not the certificate has been completed in accordance with this Act.

Duty to inform.

20(2)

The medical officer in charge, if he or she is of the opinion that the certificate has not been completed in accordance with this Act and within the time limit prescribed by this Act, shall ensure that the psychiatrist is so informed and that the person or patient is promptly informed that he or she has the right to leave the psychiatric facility, subject to any detention that is lawfully authorized otherwise than under this Act.

Change from involuntary to voluntary patient.

21(1)

An involuntary patient whose authorized period of detention has expired shall be deemed to be a voluntary patient.

Certificate of change of status.

21(2)

If at any time the attending physician is of the opinion

(a) that the prerequisites for admission as an involuntary patient set out in subsection 16(1) are no longer met; and

(b) that the prerequisites for admission as a voluntary patient set out in subsection 16(2) are met;

the attending physician shall change the status of an involuntary patient to that of a voluntary patient by completing and filing with the medical officer in charge a certificate of change of status.

Duty to inform.

21(3)

Where a patient's status changes to that of a voluntary patient, the medical officer in charge shall ensure that the patient is promptly informed that the patient is a voluntary patient and has the right to leave the psychiatric facility, subject to any detention that is lawfully authorized otherwise than under this Act.

Transfer of involuntary patients.

22(1)

Where it appears to the director

(a) that an involuntary patient in a psychiatric facility has come or been brought into Manitoba from elsewhere and the patient's hospitalization is the responsibility of another jurisdiction; or

(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 consents to the transfer to the other jurisdiction, and the director has arranged for the patient's hospitalization in the other jurisdiction, the director may in writing authorize the patient's transfer to the other jurisdiction.

Reception of involuntary patients.

22(2)

Where it appears to the director

(a) that there is in another jurisdiction an involuntary patient in a psychiatric facility and Manitoba is responsible for that patient's hospitalization; or

(b) that it would be in the best interest of an involuntary patient in a psychiatric facility in another jurisdiction to be hospitalized in Manitoba;

the director may in writing authorize the transfer of the patient into Manitoba for admission into a psychiatric facility as an involuntary patient.

Information as to patient's status.

23(1)

A psychiatrist who admits an involuntary patient or who completes and files a certificate of renewal or a certificate of change of status to that of an involuntary patient shall promptly inform the patient in writing,

(a) that the patient has been admitted or continued as an involuntary patient or had his or her status changed to that of an involuntary patient of the psychiatric facility and the reasons therefor;

(b) that the patient has the right to apply to the review board for a review of his or her status; and

(c) that the patient has the right to retain and instruct counsel.

Patient incapable of understanding.

23(2)

If, at the time of admission, renewal, or change of status of a patient, he or she is apparently incapable of understanding the information mentioned in subsection (1), the psychiatrist shall give the information in writing to the Public Trustee.

Notice.

23(3)

Where a person is admitted as a patient, or there is a renewal of the person's status as an involuntary patient, or there is a change in a person's status to an involuntary patient, the medical officer in charge shall where appropriate notify the most immediately available adult member of the person's family in writing of the admission, renewal or change.

PATIENT RIGHTS AND APPEALS

Treatment.

24(1)

Subject to subsections (2), (7) and (8) and section 25, a patient of a psychiatric facility has the right to refuse consent to psychiatric or other medical treatment.

Consent by others.

24(2)

Consent to psychiatric treatment may be given on behalf of the patient by the Public Trustee in all cases where the Public Trustee is committee of the patient and, where the Public Trustee is not the committee, consent may be given in the case of a patient who is a minor,

(a) where the court has not appointed a guardian of the person of the patient, by the patient's parent,

(b) where the court has appointed a guardian of the person of the patient, by that guardian.

Capacity to consent.

24(3)

As soon as reasonably possible after admission of a patient, the attending physician shall determine whether a patient is mentally competent to consent to psychiatric or medical treatment, and in so doing 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 consent is affected by his or her condition.

Certificate.

24(4)

A physician who is of the opinion that a patient is not mentally competent to consent to treatment shall complete and file with the medical officer in charge a certificate to that effect with reasons for the opinion.

Request for review.

24(5)

Upon receipt of a certificate under subsection (4), the medical officer in charge shall send a copy of the certificate to the patient, to the Public Trustee and to the most immediately available adult member of the patient's family and shall notify the patient and the member of the patient's family 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 a review.

Review.

24(6)

Where a certificate has been filed under subsection (4), the attending physician of the patient shall periodically review the patient's condition and where 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 consent and the medical officer in charge if satisfied that the physician's opinion is supported by his or her reasons shall cancel the certificate of incompetence and notify the patient and his or her committee of the cancellation.

Emergency medical treatment.

24(7)

Medical treatment may be given without consent to any patient of a psychiatric facility who, in the opinion of a psychiatrist, is not mentally competent or is under 18 years of age if there is imminent and serious danger to the life, a limb or a vital organ of the patient requiring immediate medical treatment.

Psychiatric treatment pending consent.

24(8)

Psychiatric treatment may be given without consent to any patient of a psychiatric facility in order to keep the patient under control to prevent harm to the patient or to another person by the use of such force, mechanical means or medication as is reasonable having regard to the physical and mental condition of the patient pending consent on behalf of the patient or an order of the review board.

Detailed record.

24(9)

Measures necessary for the exercise of the authority given in this Act to treat and restrain a person that are taken 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,

(iv) the frequency of administration; and

(b) where force or mechanical means are used to restrain a 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.

Application to review board re. treatment.

25(1)

The attending physician of a patient may apply to the review board for an order authorizing the giving of specified psychiatric treatment and other related medical treatment to an involuntary patient where consent has been refused.

Material on application.

25(2)

The review board shall not consider an application under subsection (1) unless it is accompanied by statements signed by the attending physician and a psychiatrist, each stating that they have examined the patient and that they are of the opinion, stating the reasons of each of them, that,

(a) the mental condition of the patient will be or is likely to be substantially improved by the specified psychiatric treatment;

(b) the mental condition of the patient will not improve or is not likely to improve without the specified psychiatric treatment;

(c) the anticipated benefit from the specified psychiatric treatment and other related medical treatment outweighs the risk of harm to the patient; and

(d) the specified psychiatric treatment and other related medical treatment are the least restrictive and least intrusive treatments that meet the requirements of clauses (a), (b) and (c).

Basis for decision.

25(3)

The review board by order may authorize the giving of the specified psychiatric treatment and other related medical treatment if it is satisfied that the criteria set out in clauses (2)(a) to (d) have been established.

Terms and conditions.

25(4)

An order may include terms and conditions and may specify the period of time during which the order is effective.

Interim order.

25(5)

If the order of the review board authorizes specified psychiatric treatment and other related medical treatment and the order is appealed to the court, the treatment shall not be administered unless the court on motion makes an interim order authorizing the giving of the specified psychiatric treatment and other related medical treatment pending the final disposition of the appeal.

Alternate treatment.

25(6)

Where the review board decides not to authorize the giving of the specified psychiatric treatment and other related medical treatment and the attending physician is of the opinion that alternate specific psychiatric treatment and other related medical treatment are available and meet the criteria set out in clauses (2)(a) to (d), the attending physician may propose the alternate treatment to the patient.

CERTIFICATE OF LEAVE

Leave to live outside facility.

26(1)

The attending physician of an involuntary patient, in order to provide psychiatric treatment that is less restrictive and less intrusive to the patient than being detained in a psychiatric facility, may issue a certificate of leave allowing the patient to live outside the psychiatric facility subject to the specific written condition that the patient shall report at specified times and places for treatment.

Consent.

26(2)

A certificate of leave is not effective without the patient's consent.

Term.

26(3)

The period of leave under a certificate of leave may not be for more than six months but the leave may be extended for one period of not more than six months.

Cancellation.

26(4)

The attending physician, by filing a certificate of cancellation of leave with the medical officer in charge, may without notice cancel the certificate of leave if the attending physician is of the opinion that

(a) the patient's condition may present a danger to the patient or others; or

(b) the patient is likely to suffer substantial mental or physical deterioration; or

(c) the patient has failed to report as required by the certificate of leave.

Return to psychiatric facility.

26(5)

A certificate of cancellation of leave is sufficient authority for 30 days after it is signed for a peace officer to take the patient named in it into custody and to take the patient forthwith to the psychiatric facility where the physician who completed the certificate of cancellation of leave attends.

Assessment on return.

26(6)

Forthwith upon the return of the patient, the attending physician shall examine the patient to determine whether the patient should be re-admitted as an involuntary patient and sections 8 and 16 apply with such modifications as the circumstances require to the re-admission of the patient.

Absent without permission - involuntary patient.

26.1(1)

Where an involuntary patient is absent from a psychiatric facility without the permission of the attending physician, the medical officer in charge may issue an order to have the patient taken into custody and returned to the psychiatric facility by any peace officer and the order is sufficient authority for a peace officer to do so.

Absent without permission - voluntary patient.

26.1(2)

Where a voluntary patient is absent from a psychiatric facility without the permission of the attending physician, the medical officer in charge may issue an order to have the patient located by any peace officer and interviewed and the peace officer may, where the prerequisites to act set out in subsection 10(1) are met, take the patient into custody and return him or her to the psychiatric facility.

Examination on return.

26.1(3)

Where a patient has been taken into custody and returned under subsection (2), a psychiatrist shall examine the patient forthwith to determine whether the criteria for involuntary admission under subsection 16(1) are met.

REVIEW

Review of admission or renewal.

26.2(1)

On application, the review board shall promptly review a patient's status to determine whether the prerequisites for admission as an involuntary patient set out in subsection 16(1),

(a) were met when the certificate of involuntary admission or the certificate of renewal was filed in respect of the patient; and

(b) continue to be met at the time of the hearing of the application.

Confirming order.

26.2(2)

The review board by order may confirm the patient's status as an involuntary patient if the review board determines that the prerequisites for admission as an involuntary patient set out in subsection 16(1)

(a) were met when the certificate was filed and continued to be met at the time of the hearing of the application; or

(b) were not met when the certificate was filed but were met at the time of the hearing of the application.

Rescinding order.

26.2(3)

The review board by order shall change the patient's status to that of a voluntary patient if the review board determines that the prerequisites for admission as an involuntary patient set out in subsection 16(1),

(a) were not met when the certificate was filed and were not met at the time of the hearing of the application; or

(b) were met when the certificate was filed but did not continue to be met at the time of the hearing of the application.

Application of order.

26.2(4)

An order of the review board confirming or rescinding a certificate applies to the certificate of involuntary admission or the certificate of renewal in force at the time of or immediately prior to the making of the order.

Automatic review.

26.3(1)

On the filing of a third certificate of renewal and on the filing of every fourth certificate of renewal thereafter, the patient shall be deemed to have applied to the review board for review of the status of the patient to determine whether the prerequisites for admission as an involuntary patient set out in subsection 16(1) were met when the certificate was filed and continued to be met at the time of the hearing of the application.

Second opinion.

26.3(2)

As part of a review under subsection (1), the review board may arrange for the examination of the patient by a second psychiatrist and may obtain the opinion of the second psychiatrist as to whether the prerequisites set out in subsection 16(1) for admission as an involuntary patient continue to be met at the time of the hearing of the application.

HEARINGS AND APPEALS

Review boards.

26.4(1)

The Lieutenant Governor in Council may establish review boards for psychiatric facilities or groups of psychiatric facilities.

Appointment of members.

26.4(2)

The Lieutenant Governor in Council may appoint the members of each review board.

Numbers of members.

26.4(3)

A review board shall be composed of three members, one of whom shall be a barrister and solicitor who shall preside at meetings of the board, one of whom shall be a psychiatrist and one of whom shall be neither a barrister and solicitor nor a psychiatrist.

Jurisdiction.

26.4(4)

A reference in this Act to a review board means the review board established for the psychiatric facility or group of psychiatric facilities in connection with which the matter in question arises.

Applications to review board.

26.5(1)

An application to a review board may be made regarding any aspect of the admission or treatment of a patient, including

(a) to review the status of a patient; or

(b) to review a certificate of leave; or

(c) to review an opinion that a person is or is not mentally competent to consent or refuse consent; or

(d) to review an opinion that a person is or is not capable of managing his or her affairs; or

(e) to authorize specified psychiatric treatment and other related medical treatment without consent; or

(f) to authorize the medical officer in charge to withhold access to all or part of the clinical record.

Applicants.

26.5(2)

An application shall be in writing and may be made by any person having a substantial interest in the application.

Parties.

26.5(3)

In every application to the review board, the applicant, the patient and the attending physician are parties and the medical officer in charge is entitled to be a party.

Public Trustee.

26.5(4)

In an application for authority to give treatment in a case where the Public Trustee has refused consent on the patient's behalf, the Public Trustee is also a party.

Board may add parties.

26.5(5)

The review board may add as a party any person who, in the opinion of the review board, has a substantial interest in the matter under review.

Notice.

26.5(6)

The review board shall give seven days' written notice of the application to every party and to every person who is entitled to be a party and to any person who, in the opinion of the review board, may have a substantial interest in the application.

Hearing.

26.6(1)

In every proceeding before the review board there shall be a hearing.

Counsel.

26.6(2)

Every party may be represented by counsel or agent at a hearing before the review board.

Examination of recorded evidence.

26.6(3)

Every party shall be given an opportunity to examine and to copy, before the hearing, any recorded evidence that will be produced or any report the contents of which will be given in evidence.

Evidence.

26.6(4)

Every party may present such evidence as the review board considers relevant and to question witnesses.

Duty of review board.

26.6(5)

It is the duty of the review board to inform itself fully of the facts by means of the hearing and for this purpose the review board may require the attendance of witnesses and the production of documents in addition to the witnesses called and documents produced by the parties and has the powers conferred upon a commissioner appointed pursuant to Part V of the Manitoba Evidence Act.

Record.

26.6(6)

Every proceeding before the review board shall be recorded and copies of documents filed in evidence or a transcript of the oral evidence shall be furnished only to the parties upon the same terms as in the court.

Closed hearings.

26.6(7)

Subject to subsection (8), all review board hearings shall be closed to the public.

Exception.

26.6(8)

The review board may permit the public to be present during a hearing where

(a) the patient consents; and

(b) there is, in the opinion of the board, little risk of serious harm or injustice to any person.

Written reasons.

26.6(9)

At the request of any party to a hearing, the review board shall provide written reasons for its decision.

Appeal to court.

26.7(1)

Any party to a proceeding before the review board may appeal from the final decision or order of the review board to the court.

Powers of court.

26.7(2)

An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the review board and may exercise all powers of the review board and for the purpose the court may substitute its opinion for that of the review board, or the court may refer the matter back to the review board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

Standard of proof.

26.8(1)

In a proceeding under this Act before the review board or a court, the standard of proof is proof on the balance of probabilities.

Instructions to counsel.

26.8(2)

In a proceeding before the review board or on an appeal therefrom in respect of a patient of a psychiatric facility, the patient shall be deemed to have capacity to instruct counsel.

Definition.

26.9(1)

In this Part, "clinical record" means the clinical record or any part thereof compiled in a psychiatric facility with respect to a patient.

Disclosure of clinical record prohibited.

26.9(2)

Except as may be otherwise provided in this Act, no person shall disclose, transmit or examine a clinical record.

Exceptions to disclosure.

26.9(3)

The medical officer in charge of a psychiatric facility in which a clinical record is prepared and maintained may disclose or transmit the record to, or permit the examination thereof by

(a) any person with the consent of the patient, where the patient has attained the age of majority and is mentally competent; or

(b) any person, where the patient has not attained the age of majority, with the consent of the patient's parent or guardian; or

(c) any person, when the patient is not mentally competent with the consent of the Public Trustee or other committee of the patient; or

(d) any person employed in or on the staff of the psychiatric facility, for the purpose of assessing or treating the patient; or

(e) the medical officer in charge of a health facility or a psychiatric facility currently involved in the direct care of the patient, upon the written request of that medical officer; or

(f) a physician or community mental health worker engaged in the direct care of the patient, where the delay in obtaining the consent mentioned in clause (a) or (b) is likely to endanger the mental or physical health of the patient; or

(g) any person for the purpose of research, academic pursuit or the compilation of statistical data where the person agrees in writing not to disclose the name or other means of identification of the patient and not to use or communicate the information for any other purpose; or

(h) the review board for the purposes of a hearing; or

(i) a board of review established under the Criminal Code (Canada).

Patient access to clinical record.

26.9(4)

Subject to subsection (5), a person who has attained 18 years of age and is mentally competent is entitled on application to the medical officer in charge to examine and to copy the clinical record or a copy of the clinical record of his or her examination, assessment, care and treatment in a psychiatric facility.

Application to review board.

26.9(5)

The medical officer in charge, within seven days after a person applies to examine his or her clinical record, may apply to the review board to withhold all or part of the clinical record.

Order by review board.

26.9(6)

Upon an application under subsection (5), the review board shall review the clinical record and by order shall direct the medical officer in charge to give the person access to the clinical record unless the review board is of the opinion that disclosure of the clinical record is likely to result in serious harm to the treatment or recovery of the person while the person is a patient or is likely to result in serious physical harm or serious emotional harm to another person.

Non-disclosure of part

26.9(7)

Where, in the review board's opinion, disclosure of a part of a clinical record is likely to have a result mentioned in subsection (6), the review board shall mark or separate the part and exclude the marked or separated part from the application of the order.

Submissions.

26.9(8)

The person and the medical officer in charge are each entitled to make submissions to the review board in the absence of the other before the review board makes its decision.

Right of correction.

26.9(9)

Where a person is allowed to examine his or her clinical record or a part or copy of that record, the person may

(a) request correction of the information in the clinical record, if the person believes there is an error or omission in the clinical record;

(b) require that a statement of disagreement be attached to the clinical record reflecting any correction that is requested but not made; and

(c) require that notice of the correction or statement of disagreement be given to any person or organization to whom the clinical record was disclosed within the year before the correction was requested or the statement of disagreement was required.

Disclosure pursuant to subpoena.

26.9(10)

Subject to subsections (11) and (12), the medical officer in charge of a psychiatric facility shall disclose, transmit or permit the examination of the clinical record of a patient pursuant to a subpoena, order or direction of a court with respect to a matter in issue before the court.

Statement by attending physician.

26.9(11)

Where the attending physician of the patient states in writing that he or she is of the opinion that the disclosure, transmittal or examination of the clinical record or of a specified part of the clinical record pursuant to subsection (10)

(a) is likely to result in harm to the treatment or recovery of the patient; or

(b) is likely to result in

(i) injury to the mental condition of a third person, or

(ii) bodily harm to a third person;

the medical officer in charge shall not disclose the clinical record or the part of the clinical record specified by the attending physician in the opinion except under an order of the court before which the matter is in issue made after a hearing that is held on notice to the attending physician.

Matters to be considered by court.

26.9(12)

On a hearing referred to in subsection (11), the court shall consider whether or not the disclosure, transmittal or examination of the clinical record or the part of the clinical record specified by the attending physician

(a) is likely to result in harm to the treatment or recovery of the patient; or

(b) is likely to result in,

(i) injury to the mental condition of a third person, or

(ii) bodily harm to a third person;

and for that purpose the court may examine the clinical record, and, if satisfied that such a result is likely, the court shall not order the disclosure, transmittal or examination unless satisfied that to do so is essential in the interests of justice.

Return of clinical record to officer in charge.

26.9(13)

Where a clinical record is required pursuant to subsection (10), (11) or (12), the clerk of the court in which the clinical record is admitted in evidence, or if not so admitted, the person to whom the clinical record is transmitted shall return the clinical record to the medical officer in charge forthwith after the determination of the matter in issue in respect of which the clinical record was required.

Disclosure in action or proceeding.

26.9(14)

Except as provided in subsections (10), (11) and (12), no person shall disclose in an action or proceeding in any court or before any body other than a review board any knowledge or information in respect of a patient obtained in the course of assessing or treating or assisting in assessing or treating the patient in a psychiatric facility or in the course of employment in the psychiatric facility except with the consent of the patient or consent on behalf of the patient under clause 24(2)(a) or (b).

Advising of rights.

26.10(1)

The medical officer in charge of a psychiatric facility shall, as soon as reasonably possible after the admission of a patient to the facility

(a) provide to the patient a written outline of the functions of the review board and the manner in which a matter can be referred to the review board; and

(b) advise the patient of the right

(i) to send and receive mail in accordance with section 97,

(ii) to communicate with the Ombudsman, (iii) to communicate with the Public Trustee if the patient is a ward of the Public Trustee, and

(iv) to retain and instruct counsel.

Language of communication.

26.10(2)

Where the medical officer in charge has reason to believe that the patient has difficulty comprehending the language in which the information required by subsection (1) is being conveyed, the medical officer in charge shall cause the information to be given to the patient in a language the patient understands and for this purpose the medical officer in charge may obtain the services of an interpreter.

Posting.

26.10(3)

The medical officer in charge shall ensure that the rights set out in subsection (1) are prominently displayed in all wards of the psychiatric facility.

Further communication.

26.10(4)

Where at the time the medical officer in charge sought to provide the information required by subsection (1), the patient did not appear able to comprehend the information, the medical officer in charge shall cause that information to be given to the patient at the earlier of

(a) the patient appearing able to comprehend the information; or

(b) the patient making inquiry.

Change of status.

26.10(5)

Whenever a patient's status is being changed, the medical officer in charge shall ensure that the patient receives a full explanation of the implications of the change and of all possible procedures for the patient to appeal the change.

CERTIFICATE OF INCOMPETENCE TO MANAGE AFFAIRS

Criteria on examination.

26.11(1)

As soon as reasonably possible after admission of a patient to a psychiatric facility, a physician shall examine the patient and, in addition to any other certificate required by this Part, shall complete a certificate with reasons as to whether in the opinion of the physician the person is or 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 estate; and

(c) the effect of the condition of the person upon his or her ability to administer the estate.

Public Trustee notified.

26.11(2)

Where a physician certifies under subsection (1) that a person is not capable of managing his or her affairs, the physician shall forthwith forward a copy of the certificate to the medical officer in charge who if satisfied that the physician's opinion is supported by his or her reasons shall serve a copy of the certificate upon

(a) the person;

(b) the most immediately available adult member of the person's family; and

(c) the Public Trustee.

Effect of certificate.

26.11(3)

Upon receipt of the certificate, the Public Trustee is the committee of the person and of the estate of the person until otherwise ordered by the court under subsection (4) or until the certificate is cancelled.

Application.

26.11(4)

A person served with notice under clause (2)(a) or (b) or any other person with leave of the court may, within 10 days of receiving the notice or within such further time as the court may on application allow, apply to the court for an order that the person be allowed to administer his or her estate or that some person other than the Public Trustee administer the estate.

Action while application pending.

26.11(5)

Where application is made under subsection (4), notice of the application shall be served on the Public Trustee and upon receipt of the notice the Public Trustee shall not administer the estate except to the extent necessary to preserve the estate pending the decision of the court.

Review.

26.11(6)

The attending physician of a patient who is the subject of a certificate under this section shall periodically review the person's condition and where satisfied it is appropriate shall file with the medical officer in charge a statement of his opinion with reasons that the patient is capable of managing his or her affairs and the medical officer in charge if satisfied that the physician's opinion is supported by his or her reasons shall cancel the certificate and notify the patient and his or her committee of the cancellation.

Certificate for non-patient.

26.12(1)

A physician who has examined a person who is not in a psychiatric facility and who is of the opinion having regard to the circumstances set out in subsection 26.11(1) that the person is not capable of managing his or her affairs shall complete a certificate with reasons as to his or her opinion and shall send the certificate to the director who if satisfied that the physician's opinion is supported by his or her reasons shall make an order of supervision and the director shall serve a copy of the order and certificate upon

(a) the person;

(b) the most immediately available adult member of the person's family; and

(c) the Public Trustee and advise them that they may make an application under subsection (3).

Effect of order.

26.12(2)

Upon receipt of the order of supervision, the Public Trustee is the committee of the person and of the estate of the person until otherwise ordered by the court under subsection (3) or until the certificate is cancelled.

Application to court.

26.12(3)

Any person served under subsection (1) or any other person with leave of the court may apply to the court within 10 days of being served or such further period as the court may allow for an order

(a) annulling the supervision; or

(b) appointing some person other than the Public Trustee to supervise the person;

and, upon hearing the application, the court may make any order under this Act that is appropriate.

Action while application pending.

26.12(4)

Where application is made under subsection (3), notice of the application shall be served on the Public Trustee and upon receipt of the notice the Public Trustee shall not administer the estate except to the extent necessary to preserve the estate pending the decision of the court.

Review.

26.12(5)

A physician on the request of the director shall review the condition of a person who is the subject of a certificate under this section and where satisfied it is appropriate shall file with the director a statement of his opinion with reasons that the person is capable of managing his or her affairs and the director if satisfied that the physician's opinion is supported by his or her reasons shall cancel the certificate and notify the person and his or her committee of the cancellation.

Authority of Public Trustee.

26.13(1)

Where the Public Trustee becomes the committee of a person under section 26.11 or 26.12 the Public Trustee may, in addition to the authority granted by the other provisions of this Act and The Public Trustee Act,

(a) determine, subject to subsection (3), where and with whom the person shall live whether permanently or temporarily;

(b) commence, compromise or settle any legal proceeding that does not relate to the estate of the person; and

(c) consent to any health care of the person.

Consultation.

26.13(2)

In exercising the power conferred by subsection (1), the Public Trustee shall, where reasonably possible, consult with the person's family.

Consent.

26.13(3)

The Public Trustee may only place a person pursuant to clause (1)(a) with a person who consents to the placement and that person may on reasonable notice to the Public Trustee withdraw his or her consent and the Public Trustee shall thereupon make a new determination under clause (1)(a).

Proceedings open to media.

26.14(1)

All court proceedings under this Part shall be closed to the general public but shall be open to representatives of the press, radio and television unless the court, on application, is satisfied that the presence of such representatives would be manifestly harmful to any individual involved in the proceedings.

Reporting not to identify individuals involved.

26.14(2)

No press, radio or television report of a proceeding under this Part shall disclose the name of any individual involved in the proceedings as a party or a witness or disclose any information likely to identify any such person.

Offence and penalty.

26.14(3)

A person violating subsection (2) commits an offence punishable on summary conviction and is liable, if an individual, to imprisonment for two years or to a fine of $5,000. or both and, if a corporation, to a fine of $50,000.

Offence by an officer, etc. of corporation.

26.14(4)

Where a corporation is guilty of an offence under this section, any officer, director or agent of the corporation who directed, authorized, participated in, or acquiesced in, the commission of the offence, is party to and is also guilty of the offence and is liable to the penalties set out in subsection (3).

Sec. 80 rep. and sub.

8

Section 80 is repealed and the following is substituted therefor:

Public Trustee to act as committee.

80(1)

Where

(a) a person is declared under section 56 to be mentally disordered or is declared under section 76 to be incapable of managing his or her affairs;

or

(b) a person is declared under section 26.11 or section 26.12 to be incapable of managing his or her affairs;

and the person has no committee, The Public Trustee is the committee of the person and the estate of the person.

Request by voluntary patient.

80(2)

Where a voluntary patient in a psychiatric facility requests the assistance of The Public Trustee may administer her or her estate.

Duration.

80(3)

The authority of the Public Trustee to act as a person's committee continues until the certificate issued under section 26.11 or section 26.12 is cancelled or the Public Trustee is discharged as committee by order of the court.

Secs. 82 and 83 rep. and sub.

9

Sections 82 and 83 of the Act are repealed and the following sections are substituted therefor:

Powers of Public Trustee.

82

The Public Trustee, while acting as committee of a person, has all the powers of a committee appointed by the court, including the powers that, under section 69, the committee of the estate of a person may be authorized to exercise, and the powers given to such a committee by section 70.

Contracts made by Public Trustee.

83(1)

Where the Public Trustee enters into a contract on behalf of a person for whom the Public Trustee acts as committee, the contract is binding on that person after his or her complete discharge from the psychiatric facility, or in the event of his or her death, upon his or her heirs, executors or administrators, in the same manner and to the same extent, as if he or she had made it.

Public Trustee to carry out obligation.

83(2)

Where the person fails to carry out his or her obligations under subsection (1) after his or her discharge, or if he or she dies and there is no executor or administrator appointed to carry out the obligations or the executor or administrator fails to carry them out, the Public Trustee may do so in the same manner and to the same extent as the Public Trustee might have done as the committee of that person.

Conveyance of title by Public Trustee.

83(3)

Where a sale of land is made on behalf of a person by the Public Trustee as committee, the Public Trustee may convey title, notwithstanding that the owner is discharged or has died before a conveyance or transfer of the land so sold has been executed or registered.

Recital as evidence of facts.

83(4)

Where the Public Trustee executes a conveyance of land after the death of the registered owner in accordance with subsection (3) a recital in the conveyance that the land was sold while the owner was declared to be incapable of managing his or her affairs is evidence of the facts recited.

Conveyance deemed to be executed during lifetime of person.

83(5)

For the purpose of registration in a land titles office, a conveyance pursuant to this section shall be deemed to have been executed during the lifetime of the person.

Public Trustee as administrator.

83(6)

Where a person's estate is administered by the Public Trustee and that person was, prior to the appointment of the Public Trustee as his or her committee, the executor or administrator of the estate of a deceased person, the Public Trustee is deemed to be the executor or administrator of that estate in lieu of the person unless another executor or administrator is appointed by the court.

Limited powers of Public Trustee on death of person.

83(7)

Where the Public Trustee is acting as committee of a person and that person dies, until probate of the will or letters of administration of the estate of the person are granted and notice thereof is served on the Public Trustee, the Public Trustee has the powers of an executor under the will of, or the administrator of the estate of, the person for the purpose of paying debts and funeral expenses of the deceased person and to gather in the assets of the estate of the deceased person and in addition the Public Trustee may commence and maintain legal proceedings on behalf of the estate of the person.

Recital in documents of Public Trustee as evidence.

83

A recital in a lease, mortgage, conveyance or other document that the Public Trustee acts as committee for a person, is evidence of the fact recited.

Secs. 87, 88 and subsec. 89(1) rep. and sub.

10

Sections 87 and 88 and subsection 89(1) of the Act are repealed and the following is substituted therefor:

Public Trustee to continue as administrator.

87(1)

Where a person, whose estate the Public Trustee is administering dies and the estate does not exceed in value the sum of $1,000. after payment of any liability to the government, the Public Trustee may retain possession of the estate and the Public Trustee has with respect to that estate all the powers and duties of an administrator of the estate of a deceased person appointed under the Court of Queen's Bench Surrogate Practice Act.

Registrar of Q.B. to be notified.

87(2)

Where, under subsection (1), the Public Trustee retains possession of the estate of a person, the Public Trustee shall forthwith file notice thereof with the registrar of the court and the registrar shall file a copy of the notice in the court's records without fee.

Power of Public Trustee over estate of value not exceeding $500.

88

Where a person for whom the Public Trustee acts as committee dies possessed of personal property not exceeding $500. in value, and where no probate of his or her will or letters of administration of his or her estate have been granted in the province, the Public Trustee without obtaining any order or authority from a court or from the Lieutenant Governor in Council or otherwise, may,

(a) out of the personal property give or distribute wearing apparel and articles of personal use or ornaments to or among one or more of the family and relatives of the deceased; and

(b) may sell personal property not so dealt with and apply the proceeds towards payment of amounts due, or debts incurred for the maintenance or burial of the deceased.

Administration of estates of persons detained in other provinces.

89(1)

Where a person who has been declared mentally disordered or incapable of managing his or her affairs in another province or territory of Canada has an estate in Manitoba, the Lieutenant Governor in Council may appoint an official who is charged with the duty of administering the estate of the person in that other province or territory, to be committee of his or her estate in Manitoba.

Proof.

89(1.1)

An order in council making an appointment under subsection (1) is conclusive proof that all the conditions precedent to the appointment have been fulfilled.

Subsec. 90(1) rep. and sub.

11

Subsection 90(1) of the Act is repealed and the following subsection is substituted therefor:

Annual audit.

90(1)

The Provincial Auditor shall make annually such audit of the accounts of the Public Trustee relating to estates under the administration of the Public Trustee as the Provincial Auditor considers necessary.

Secs. 95 and 96 rep. and sub.

12

Sections 95 and 96 of the Act are repealed and the following is substituted therefor:

Protection from civil liability.

95

No person acting under the authority of this Act is liable to any civil proceedings in respect thereof whether on the ground of want of jurisdiction or any other ground if that person acted in good faith and with reasonable care.

Stay of proceedings.

96

Where proceedings are taken against a person for actions taken under the authority of this Act, a judge of the court on summary application may stay the proceedings upon such terms as to costs or otherwise as the judge deem fit if the judge is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care.

Sec. 97 rep. and sub.

13

Section 97 of the Act is repealed and the following section is substituted therefor:

Communication by patients.

97

Every person confined in a psychiatric facility shall at all times be furnished with writing materials for communicating with any person and no such communication nor any communication received shall be examined, censored or withheld.

Repeal.

14

Section 25 of An Act to Amend the Mental Health Act, chapter 62 of the Statutes of Manitoba, 1980 is repealed.