Disclosure Statement

Understanding LTC Legislation:Rights Advice in OntarioNew Directions in Seniors’ Mental HealthCanadian Coalition for Seniors’ Mental HealthSeptember 24, 2007Linda Carey, Manager Rights Advice ServicesDavid Simpson, Program ManagerPsychiatric Patient Advocate Office

Disclosure Statement • There is no real or apparent conflict of interest which would influence the content of this presentation. • However, the Psychiatric Patient Advocate Office may be considered as an organization which would have the ability to provide the necessary rights advice service contained in the Long-Term Care Homes Act (Bill 140). Promoting Patients' Rights

History • Ministry of Health and Long-term Care • Creation announced in May 1982 • May 1983 the program was operational in the 10 provincial psychiatric hospitals • Arm’s length relationship with government Promoting Patients' Rights

Mandate • Mandate – to protect the legal rights and entitlements of inpatients in the provincial psychiatric hospitals • Recognition that vulnerable people may require the services of an advocate to protect their rights Promoting Patients' Rights

Core Services • Advocacy • instructed • non-instructed • systemic (local, regional, provincial) • self-advocacy • Rights Advice • Education • consumers, public, health professionals, families Promoting Patients' Rights

Advocacy • Instructed – Advocate receives an instruction from client as to what is to be done • Non-Instructed – client is unable to provide an instruction to Advocate – usually deals with rights abridgement, quality of life or care issues • Systemic – advocate for system change at various levels e. g. facility, provincial, federal Promoting Patients' Rights

Advocacy Services • 10 current and former provincial psychiatric hospitals – 12 patient advocates assisted with approximately 3,600 instructed and non-instructed issues in 2006 • Systemic issues at the local, provincial and federal levels (e.g., mandatory inquests, police records, hospital management of finances) • Intervention in some cases: court, inquests, tribunals Promoting Patients' Rights

Rights Advice • 10 former and current provincial psychiatric hospitals (PPH) • All individuals living in the community who are being considered for a community treatment order and their substitute decision-makers, if any • 55 general and specialty hospitals • Approximately 21,000 first rights advice visits in 2006 in 45 languages Promoting Patients' Rights

Education • Website (www.ppao.gov.on.ca) – 1.68 million hits in 2006 from 75 countries • Publication of InfoGuides on 39 topics • Presentations at workshops and conferences • Provincial public education campaign • Participation on hospital, community, Ministry based committees, workgroups and task forces • Letters to the editor, media interviews • Journal articles Promoting Patients' Rights

Rights Advice – Mental Health Act • Standard form of information provided to patients in psychiatric facilities when experience change in status • Dec. 1, 2000 Rights Advice extended into community for persons subject to a community treatment order (CTO) and SDM, if any Promoting Patients' Rights

Rights Advice.... • Provides protection to individuals who experience a loss of freedom to make their own decisions • Rights Advice explanation: • what freedom is lost • options to dispute • assistance to apply for review and obtain legal counsel Promoting Patients' Rights

Why Rights Advice Is Necessary • Purpose of Rights Advice is to ensure that inpatients whose legal status has changed and those subject to CTOs understand what has happened to them and what options are available to them Promoting Patients' Rights

Why.... • Due process concerns where health care delivery is not consensual • Right is taken away • held against his/her will • incapable - treatment, property • incapable - PHI • community treatment order Promoting Patients' Rights

Why.... • Physician has invoked authority given to him/her by Statute • Rights Advice is an important component of the system of checks and balances necessary when the State takes away a person’s basic right Promoting Patients' Rights

Mandatory Rights Advice • Canadian Charter of Rights and Freedoms - April 17, 1982 • Guaranteed right, on detention, to know the reason and to retain and instruct legal counsel • Legislation was reviewed to determine if it complied with the Charter Promoting Patients' Rights

Mandatory…. • Due process required for persons whose rights were suspended under Mental Health Act (MHA) • MHA amended to incorporate due process issues • Rights Advice scheme added to MHA Promoting Patients' Rights

Rights Advice.... • Authority for Rights Advice is contained in the Mental Health Act and its regulations • Bill 140 – Long-Term Care Homes Act • day receives Royal Assent Promoting Patients' Rights

History Of Delivery • 1986 - PPAO Rights Advisers in Provincial Psychiatric Hospitals • 1986 - other facilities sent notice to Legal Aid and lawyer sent to provide Rights Advice • April 3, 1995 - Advocacy Commission provided Rights Advice in non PPHs Promoting Patients' Rights

History.... • March 29, 1996 • Advocacy Commission disbanded • created current system for Rights Advice delivery • Current • PPAO provides Rights Advice in PPHs and former PPHs • other facilities designate Rights Adviser Promoting Patients' Rights

Other Facilities • Facilities designate specific persons as Rights Advisers • Designated person may be • staff member who has Rights Advice added to other duties • independent contractor • volunteer • PPAO as of December 1, 2000 Promoting Patients' Rights

Community Treatment Orders • Who provides Rights Advice for a Community Treatment Order • person is an inpatient in a psychiatric facility • Rights Adviser for facility • person is not an inpatient in a psychiatric facility • Psychiatric Patient Advocate Office Promoting Patients' Rights

Definition of a Rights Adviser (MHA) • A person or a member of a category of persons, qualified to perform the functions of a Rights Adviser and designated by a psychiatric facility, the Minister or regulation to perform those functions Promoting Patients' Rights

Definition.... • But does not include • a person involved in the direct clinical care of the person to whom rights advice is to be given, or • a person providing treatment or care and supervision under a community treatment order (CTO) Promoting Patients' Rights

Qualifications • Regulations to the MHA establish qualifications to be met by a Rights Adviser • knowledgeable about the rights to apply to the Consent and Capacity Board under the MHA, HCCA and PHIPA • knowledgeable about the workings of the Board, how to contact and make applications to the Board Promoting Patients' Rights

Qualifications.... • knowledgeable about how to obtain legal services • must have communication skills necessary to perform effectively the functions of a Rights Adviser • must have successfully completed a training course for Rights Advisers approved by the Ministerand been certified as having completed the course - PPAO Promoting Patients' Rights

Independence of Rights Advice • Regardless of what classification of people deliver Rights Advice, it must not be seen to create a conflict of interest • Legal axiom Promoting Patients' Rights

Client-Centred • A client-centred approach is a fundamental feature of Rights Advice • Operate independently of those providing care to the client • Must honour this approach to effectively deliver Rights Advice Promoting Patients' Rights

Client…. • Rights Adviser must act in a professional manner when providing Rights Advice • Treat the client as an individual • The interests of the client are paramount • Personal views and beliefs must be set aside Promoting Patients' Rights

Client.... • Rights Adviser is not a member of the treatment team • Rights Adviser does not have access to the record of personal health information • Rights Adviser does not make decisions for the client Promoting Patients' Rights

Client.... • Rights Adviser is neutral and non-judgmental • Rights Adviser takes instruction whether agrees or not • System of checks and balances • Safeguards and protections in place in system • ie Consent and Capacity Board Promoting Patients' Rights

Other • Rights Adviser is one of many people in the client’s life • statutory framework - safeguards • Rights Adviser must work within the statutory framework and cannot remove the safeguards Promoting Patients' Rights

Capacity To Instruct • The threshold for capacity to instruct a Rights Adviser is purposefully low • Thus, almost all clients are able to provide an instruction Promoting Patients' Rights

Capacity.... • Client has capacity if the client can express a wish to take an action which is • legal • not impossible • within the scope of the Rights Adviser role • If client meets test, Rights Adviser acts on instruction Promoting Patients' Rights

Capacity.... • Client has the right to apply to the Consent and Capacity Board for a review, to retain and instruct legal counsel, and to apply for Legal Aid even if physician’s decision has limited their decision making authority ie incapable re treatment Promoting Patients' Rights

Rights Adviser • Role is to provide information and to assist the client in exercising rights, if requested • Does not decide whether it is in the client’s “best interests” to apply to CCB • Does not decide client should not exercise right as upsetting Promoting Patients' Rights

Confidentiality • Rights Adviser should not divulge information to anyone, even treatment team, unless he/she has client’s permission • Rights Adviser does not have access to the record of personal health information Promoting Patients' Rights

Confidentiality.... • Rights Adviser is required to inform staff that Rights Advice has been given (Form 50) • Confidentiality not protected by law such as solicitor-client privilege • Rights Adviser could be subpoenaed to court, inquest Promoting Patients' Rights

Confidentiality.... • Breach confidentiality • with permission of client • when client reveals intention to harm self or others and risk not known to treatment team • involuntary and reveals plan to leave Promoting Patients' Rights

Triggers - Rights Advice - MHA • Being made involuntary (F. 3) • Continued as involuntary (F. 4) • Finding of incapacity to manage property (F. 21) • Finding of incapacity to manage property continued (F. 24) Promoting Patients' Rights

Trigger.... • Finding of incapacity to consent to the collection, use or disclosure of personal health information • Admission of 12 to 15 year old informal patient, and every three months thereafter (F. 27) Promoting Patients' Rights

Trigger.... • Finding of incapacity to consent to treatment of a mental disorder (F. 33) • Before physician issues or renews a community treatment order (CTO) (F. 49) • person • substitute decision-maker, if any Promoting Patients' Rights

Long-Term Care Homes Act • Rights Adviser is a person designated by or in accordance with the regulations as a rights adviser • Secure unit is an area within a long-term care home that is designated as a secure unit by or in accordance with regulations Promoting Patients' Rights

Long-Term…. • Two rights advice situations • incapable resident (already in home) being transferred to a secure unit within home with the consent of their substitute decision-maker (SDM) • incapable person is being placed (going to home) in a secure unit in a home Promoting Patients' Rights

Long-Term…. • In home transfer to secure unit - licensee of home shall promptly • give the resident a written notice, and • notify a rights adviser • Resident may refuse to meet with the rights adviser • “meet with” suggests a face to face meeting Promoting Patients' Rights

Long-Term…. • Rights Adviser shall promptly meet with the resident and • explain resident’s right to apply to the Consent and Capacity Board (CCB) to review whether SDM’s decision follows principles for giving or refusing consent set out in Health Care Consent Act and other matters in regulations • upon request, assist resident to apply to CCB and to obtain legal services Promoting Patients' Rights

Long-Term…. • Rights Adviser shall comply with regulations providing how fulfill requirements of role • Resident not to be transferred until • written notice given and rights adviser notified, and • rights adviser notifies licensee that resident has received rights advice or refused rights advice Promoting Patients' Rights

Long-Term…. • Written notice shall inform resident • of the reason for the transfer, • that resident is entitled to apply to the CCB to determine if SDM followed principles, • that resident has right to retain and instruct legal counsel without delay, and • other matters provided by regulation. Promoting Patients' Rights

Long-Term…. • Person can not be admitted to secure unit on consent of SDM unless placement co-ordinator has • given the person a written notice, and • notified a rights adviser; • rights adviser has met with person and explained right to apply to CCB to review whether SDM’s decision follows principles for giving or refusing consent set out in Health Care Consent Act and other matters in regulations, or • person has refused to meet with the rights adviser Promoting Patients' Rights

Long-Term…. • “meet with” suggests a face to face meeting • Rights adviser shall, upon request, assist resident to apply to CCB and to obtain legal services • Rights Adviser shall comply with regulations providing how fulfill requirements of role Promoting Patients' Rights

Long-Term…. • Written notice shall inform person • of the reasons for the admission, • that resident is entitled to apply to the CCB to determine if SDM followed principles, • that resident has right to retain and instruct legal counsel without delay, and • other matters provided by regulation. Promoting Patients' Rights

Disclosure Statement