BILL NO. 109

(as introduced)

1st Session, 59th General Assembly
Nova Scotia
53 Elizabeth II, 2004



Government Bill



Mental Health Act



The Honourable Angus MacIsaac
Minister of Health



First Reading: September 29, 2004

Second Reading:

Third Reading:

[home] [bills] 2003 (2nd session) bills

An Act Respecting Mental Health

Be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Mental Health Act.

2 The purpose of this Act is to ensure that issues dealing with mental health are dealt with in accordance with the following guiding principles:

(a) persons of all ages with mental disorders are entitled to be treated with dignity and respect;

(b) each person has the right to make treatment decisions to the extent of the person's capacity to do so;

(c) treatment and related services are to be offered in the least-restrictive manner and environment with the goal of having the person continue to live in the community or return to the person's home surroundings at the earliest possible time;

(d) the primary mode of admission to a psychiatric facility shall be as a voluntary patient wherever possible;

(e) treatment and related services, where possible, should promote the person's self-determination and self-reliance;

(f) the person has the right to a treatment plan that maximizes the person's potential and is based on the principles of evidence-based best practice;

(g) persons with mental disorders should have access to mental health services as close to the person's home as practicable;

(h) any declaration of involuntary admission or declaration of incapacity is made on the basis of evidence.

3 In this Act,

(a) "attending psychiatrist" means the physician who is responsible for the examination, care and treatment of a patient in a psychiatric facility;

(b) "certificate for involuntary psychiatric assessment" means the certificate granted pursuant to Section 8;

(c) "certificate of cancellation of leave" means the certificate granted pursuant to Section 44;

(d) "certificate of leave" means the certificate granted pursuant to subsection 43(1);

(e) "chief executive officer" means the person who is responsible for the administration and management of a district health authority that has a psychiatric facility or a person designated in writing by such responsible person or the Izaak Walton Killam Health Centre;

(f) "common-law partner" of an individual means another individual who has cohabited with the individual in a conjugal relationship for a period of at least two years;

(g) "community treatment order" means a community treatment order granted pursuant to Section 47;

(h) "declaration of change of status" means a declaration granted pursuant to Section 24;

(i) "declaration of competency" means a declaration of competency pursuant to subsection 53(3) of the Hospitals Act;

(j) "declaration of involuntary admission" means a declaration granted pursuant to Section 17;

(k) "declaration of renewal" means a declaration renewing a patient's involuntary admission pursuant to Section 21;

(l) "hospital" means a hospital pursuant to the Hospitals Act;

(m) "involuntary patient" means a patient who is admitted to a psychiatric facility pursuant to a declaration of involuntary admission;

(n) "involuntary psychiatric assessment" means an assessment of a person's mental condition by a psychiatrist for the purpose of determining whether the person should be admitted as an involuntary patient pursuant to Section 17;

(o) "judge" means a judge of the Supreme Court of Nova Scotia (Family Division) or, in an area of the Province where there is no Supreme Court (Family Division), a judge of the Family Court;

(p) "medical examination" means an assessment of a person's mental condition by a physician pursuant to Section 8;

(q) "mental disorder" means a substantial disorder of behaviour, thought, mood, perception, orientation or memory that severely impairs judgement, behaviour, capacity to recognize reality or the ability to meet the ordinary demands of life, in respect of which psychiatric treatment is advisable;

(r) "Minister" means the Minister of Health;

(s) "panel" means a panel of the Review Board;

(t) "patient advisor" means a representative or member of the staff of the patient advisor service;

(u) "patient-advisor service" means the service or organization designated by the regulations as the patient-advisor service;

(v) "physician" means a physician licensed pursuant to the Medical Act;

(w) "psychiatric facility" means a hospital or part of a hospital designated by the regulations for the examination, care and treatment of a person with a mental disorder;

(x) "psychiatrist" means a physician

(y) "Review Board" means the Mental Health Review Board established under Section 65;

(z) "substitute decision-maker" means a person who is given the authority to make care or treatment decisions on behalf of an involuntary patient;

(aa) "voluntary patient" means a person who remains in a psychiatric facility with that person's consent or the consent of a substitute decision-maker.

VOLUNTARY ADMISSION

4 A psychiatrist who has examined a person and who has assessed the person's mental condition may admit the person as a voluntary patient of a psychiatric facility if the psychiatrist is of the opinion that the person would benefit from an in-patient admission.

5 Any assessments of the capability of a voluntary patient to consent to treatment or the appointment of a substitute decision-maker shall be carried out pursuant to the relevant provisions of the Hospitals Act.

6 Subject to Section 7, a voluntary patient who is capable of consenting to admission or discharge from a psychiatric facility may do so or a substitute decision-maker may do so on behalf of the patient.

7 (1) A member of the treatment staff of a psychiatric facility may detain and, where necessary, restrain a voluntary patient requesting to be discharged if the staff member believes on reasonable grounds that the patient

(a) has a mental disorder;

(b) because of the mental disorder, is likely to cause serious harm to himself or herself or to another person or to suffer serious impending mental or physical deterioration if the patient leaves the psychiatric facility; and

(c) needs to have a medical examination conducted by a physician.

(2) A patient who is detained under subsection (1) must be examined by a physician within three hours.

MEDICAL EXAMINATION AND
INVOLUNTARY PSYCHIATRIC ASSESSMENT

8 Where a physician has completed a medical examination of a person and is of the opinion that the person apparently has a mental disorder and that

(a) the person, as a result of the mental disorder,

(b) the person would benefit from psychiatric inpatient treatment in a psychiatric facility and is not suitable for inpatient admission as a voluntary patient,

the physician may complete a certificate for involuntary psychiatric assessment for the person.

9 (1) A certificate for involuntary psychiatric assessment must be in the form prescribed by the regulations and a physician who signs a certificate shall

(a) set out in the certificate

(b) distinguish in the certificate between facts observed by the physician and facts communicated to the physician by any other person.

(2) The certificate for involuntary psychiatric assessment must be signed by the physician who examined the person.

(3) A certificate for involuntary psychiatric assessment is not effective unless the physician signs it within seventy-two hours after the medical examination.

10 (1) Notwithstanding anything contained in this Act, two certificates for involuntary psychiatric assessment are sufficient authority for

(a) any peace officer to take the person into custody as soon as possible and to a suitable place for an involuntary psychiatric assessment as soon as possible;

(b) the person to be detained, restrained and observed in a psychiatric facility for not more than seventy-two hours; and

(c) a psychiatrist to conduct an involuntary psychiatric assessment.

(2) Notwithstanding subsection (1), one medical certificate signed by a physician is sufficient authority for the purpose of clauses (1)(a), (b) and (c) where compelling circumstances exist and where a second physician is not readily available to examine the person and execute a second certificate.

11 Every medical certificate made and given under this Act is prima facie evidence of the facts therein appearing and that the judgment therein set out has been formed by the physician on such facts as if the matters therein appearing have been verified on oath.

12 Where, within seventy-two hours of detention pursuant to Section 10, the person has not been admitted to the psychiatric facility as an involuntary patient under Section 17 or as a voluntary patient under Section 4, the chief executive officer 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.

13 (1) Any person may make a written statement under oath or affirmation before a judge requesting an order for the medical examination of another person by a physician and setting out the reasons for the request, and the judge shall receive the statement.

(2) A judge who receives a statement under subsection (1) shall consider the statement and, where the judge considers it not to be frivolous, vexatious or malicious, hear and consider, after appropriate notice has been given to both parties, the allegations of the person who made the statement and the evidence of any witnesses.

(3) A judge under subsection (2) may, where the judge considers it necessary under the circumstances, proceed with the hearing ex parte.

(4) The judge may issue an order for the medical examination of the other person if the judge has reasonable and probable grounds to believe that the other person

(a) has a mental disorder;

(b) will not consent to undergo a medical examination by a physician; and

(c) as a result of the mental disorder,

(5) An order under subsection (4) for the medical examination of a person by a physician shall direct

(a) a member of a police force named in the order; or

(b) an individual named in the order,

or both, 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 medical examination.

(6) An order under subsection (4) is valid for a period of seven days from and including the day that it is made.

14 A peace officer may take a person into custody and take the person forthwith to a place for a medical examination by a physician if the peace officer has reasonable and probable grounds to believe that

(a) the person apparently has a mental disorder;

(b) the person will not consent to undergo medical examination;

(c) it is not feasible in the circumstances to make application to a judge for an order for a medical examination pursuant to Section 13; and

(d) the person,

15 (1) Where a person is taken in custody for a medical examination pursuant to Sections 13 or 14, the person may be detained for up to twenty-four hours in an appropriate place in order for a medical examination to take place.

(2) For the purpose of subsection (1), an appropriate place where a person may be detained means a hospital, the office of a physician or another suitable place for a medical examination, but does not include a jail or lock-up unless no other suitable place is available.

16 (1) A peace officer or other authorized individual who takes a person into custody for a medical examination shall convey the person by the least intrusive means possible without compromising the safety of the person.

(2) The peace officer or other authorized individual shall remain at the place of the medical examination and shall retain custody of the person until the medical examination is completed.

(3) Where a person is taken for a medical examination and it is decided not to recommend involuntary psychiatric assessment of the person, the peace officer or other authorized individual shall arrange and pay for the return of the person to the place where the person was taken into custody or, at the person's request, to some other appropriate place.

INVOLUNTARY ADMISSION

17 Where a psychiatrist has conducted an involuntary psychiatric assessment and is of the opinion that

(a) the person has a mental disorder;

(b) the person is in need of the psychiatric treatment provided in a psychiatric facility;

(c) the person, as a result of the mental disorder,

(d) the person requires psychiatric treatment in a psychiatric facility and is not suitable for inpatient admission as a voluntary patient; and

(e) as a result of the mental disorder, the person does not have the capacity to make treatment decisions,

the psychiatrist may admit the person as an involuntary patient by completing and filing with the chief executive officer a declaration of involuntary admission in the form prescribed by the regulations.

18 (1) In determining a patient's capacity to make a treatment decision pursuant to clause 17(e), the psychiatrist shall consider whether the patient understands and appreciates

(a) the nature of the condition for which the specific treatment is proposed;

(b) the nature and purpose of the specific treatment;

(c) the risks and benefits involved in undergoing the specific treatment; and

(d) the risks and benefits involved in not undergoing the specific treatment;

(2) In determining a patient's capacity to make a treatment decision, the psychiatrist shall also consider whether the patient's mental disorder affects the patient's ability to appreciate the consequences of making the treatment decision.

19 A psychiatrist who signs the declaration of involuntary admission shall

(a) set out in the declaration

(b) distinguish in the declaration between facts observed by the psychiatrist and facts communicated to the psychiatrist by any other person; and

(c) indicate to which psychiatric facility the person is to be admitted.

20 Notwithstanding Section 19, a person in respect of whom a declaration of involuntary admission has been executed shall be admitted to the psychiatric facility to which the person is taken.

21 (1) Before the expiry of a declaration 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 chief executive officer a declaration of renewal in the form prescribed by the regulations, if the prerequisites for admission as an involuntary patient as set out in Section 17 are met.

(2) Where 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.

(3) Section 19 applies mutatis mutandis in respect of a declaration of renewal.

(4) Subsection (1) applies mutatis mutandis with respect to the expiry of a declaration of renewal.

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

(a) for not more than one month under a declaration of involuntary admission; and

(b) for not more than

23 (1) Immediately after the filing of a declaration of involuntary admission or a declaration of renewal, the chief executive officer shall examine the declaration to ascertain whether or not the declaration has been completed in accordance with this Act.

(2) Where, in the opinion of the chief executive officer, the declaration has not been completed in accordance with this Act before the expiry of the period of detention authorized by this Act, the chief executive officer shall ensure that the attending psychiatrist is so informed.

24 (1) An involuntary patient

(a) who does not continue to meet the requirements of clauses 17(a) to (e); or

(b) whose authorized period of detention has expired,

shall be changed to the status of a voluntary patient, subject to any detention that is lawfully authorized otherwise than under this Act.

(2) An attending psychiatrist may change the status of an involuntary patient to that of a voluntary patient by completing and filing with the chief executive officer a declaration of change of status.

(3) Where a patient's status is changed to that of a voluntary patient, the chief executive officer 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.

25 After examining a voluntary patient and assessing the patient's mental condition, the attending psychiatrist may change the status of the patient to that of an involuntary patient by completing and filing with the chief executive officer a declaration of involuntary admission if the prerequisites for admission as an involuntary patient set out in Section 17 are met.

26 Where a declaration of involuntary admission or a declaration of renewal is filed, the chief executive officer shall promptly inform the patient and the substitute decision-maker in writing that the patient

(a) has been admitted or continued as an involuntary patient or had his or her status changed to that of an involuntary patient, as the case may be, of the psychiatric facility and the reasons for the change;

(b) has the right to apply to the Review Board for a review of the patient's status; and

(c) has the right to retain and instruct counsel without delay.

27 (1) A psychiatric facility shall admit as a patient any person named in a warrant or order purporting to be made under an Act of the Parliament of Canada or of the Province.

(2) The psychiatric facility shall

(a) notify the Attorney General forthwith upon the admission of a person pursuant to this Section;

(b) report to the Attorney General immediately upon the recovery of such person and, in any event, at intervals of not more than twelve months on the condition and progress of all persons detained in the psychiatric facility, including progress of all persons detained in the psychiatric facility pursuant to this Section; and

(c) make any report required by the terms of the committing order or warrant.

(3) The provisions of this Act respecting discharge or transfer of patients do not apply to patients admitted pursuant to this Section if the terms of the committing order or warrant conflict with those provisions.

28 (1) In addition to the circumstances outlined in Section 27, a person may be admitted to a psychiatric facility pursuant to an Act of the Parliament of Canada or of the Province.

(2) A person admitted to a psychiatric facility pursuant to subsection (1) shall be admitted to the psychiatric facility, detained there and discharged from there in accordance with the appropriate legislation governing that person or any regulations, orders in council, orders of a court or warrants made pursuant to such legislation.

29 Where the chief executive officer believes that it is in the best interests of an involuntary patient to be treated in a psychiatric facility other than the psychiatric facility the patient is currently in, the chief executive officer may transfer the involuntary patient upon the agreement of the chief executive officer of that psychiatric facility.

30 When an involuntary patient requires hospital treatment that cannot be provided in a psychiatric facility, the chief executive officer may transfer the patient to a hospital for treatment and return the patient to the psychiatric facility on the conclusion of the treatment.

31 A psychiatric facility may admit on transfer a patient who is in a psychiatric facility in another jurisdiction or in a hospital under the jurisdiction of the Government of Canada and may detain such person for the purpose of an involuntary psychiatric assessment.

32 When it appears to the Minister that

(a) an involuntary patient has come or been brought into the Province and the patient's care and treatment is the responsibility of another jurisdiction; or

(b) it would be in the best interests of an involuntary patient to be cared for in another jurisdiction,

the Minister may, having complied with the laws of the other jurisdiction, transfer the involuntary patient to the other jurisdiction.

33 When an involuntary patient is transferred pursuant to Section 29 or 30, the authority conferred by any certificates relating to the patient continues in force in the psychiatric facility or hospital to which the patient is transferred.

34 Where a patient in a psychiatric facility is transferred to another psychiatric facility or hospital, the psychiatric facility or hospital receiving the patient has the same authority to detain or treat the patient as the psychiatric facility from which the patient was transferred had.

35 (1) When a psychiatric facility transfers a patient pursuant to Section 29, 30 or 32, the psychiatric facility shall immediately notify the patient's substitute decision-maker.

(2) On the transfer of the patient referred to in subsection (1), the psychiatric facility transferring the patient shall forward to the new psychiatric facility or hospital to which the patient is transferred a copy of all relevant documents and information pertaining to the patient.

36 (1) Upon receiving a request for review pursuant to clause 26(b), the Review Board shall, as soon as possible, but no later than twenty-one days after the request, review a patient's status to determine whether the prerequisites for admission as an involuntary patient as set out in Section 17

(a) were met when the declaration of involuntary admission or the declaration of renewal, as the case may be, was filed in respect of the patient; and

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

(2) The Review Board may, by order, 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 Section 17

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

(b) were not met when the declaration of involuntary admission or the declaration of renewal was filed but were met at the time of the hearing of the application.

(3) The Review Board shall, by order, rescind the declaration of involuntary admission or the declaration of renewal if the Review Board determines that the prerequisites for admission as an involuntary patient set out in Section 17

(a) were not met when the declaration of involuntary admission or the declaration of renewal was filed and were not met at the time of the hearing of the application; or

(b) were met when the declaration of involuntary admission or the declaration of renewal was filed but did not continue to be met at the time of the hearing of the application.

(4) An order of the Review Board confirming or rescinding a declaration of involuntary admission or a declaration of renewal applies to the declaration of involuntary admission or the declaration of renewal in force immediately before the making of the order.

37 The Review Board shall review the file of each person detained under a declaration of involuntary admission and the patient is deemed to have made an application to the Review Board

(a) sixty days from the date of the initial declaration of involuntary admission;

(b) at the end of the sixth, twelfth, eighteenth and twenty-four month stage from the date of the initial declaration of involuntary admission; and

(c) where a declaration of involuntary admission is still necessary after twenty-four months, every twelve months thereafter.

SUBSTITUTE DECISION-MAKERS

38 (1) For the purpose of this Act, consent may be given or refused on behalf of an involuntary patient or a patient on a community treatment order by a substitute decision-maker who has capacity and is willing to make the decision to give or refuse the consent from the following in descending order:

(a) a person who has been authorized to give consent under the Medical Consent Act;

(b) the involuntary patient's guardian appointed by a court of competent jurisdiction;

(c) the spouse or common-law partner, if the spouse or common-law partner is cohabiting with the patient in a conjugal relationship;

(d) an adult child of the patient;

(e) a parent of the patient or a person who stands in loco parentis;

(f) an adult brother or sister of the patient;

(g) any other adult next of kin of the patient; or

(h) the Public Trustee.

(2) Where a person in a category in subsection (1) fulfils the criteria for a substitute decision-maker as set out in subsection (4) but refuses consent on the patient's behalf, the consent of a person in a subsequent category is not valid.

(3) Where two or more persons who are not described in the same clause of subsection (1) claim the authority to give or refuse consent under that subsection, the one under the clause occurring first in that subsection prevails.

(4) A person referred to in clauses 1(c) to (g) shall not exercise the authority given by that subsection unless the person

(a) has been in personal contact with the patient over the preceding twelve-month period;

(b) is willing to assume the responsibility for consenting or refusing consent;

(c) knows of no person of a higher category who is able and willing to make the decision; and

(d) makes a statement in writing certifying the person's relationship to the patient and the facts and beliefs set out in clauses (a) to (c).

39 The substitute decision-maker shall make the decision in relation to specified psychiatric treatment and other related medical treatment

(a) in accordance with the patient's prior capable informed expressed wishes; or

(b) in the absence of awareness of a prior capable informed expressed wish, in accordance with what the substitute decision-maker believes to be in the patient's best interest.

40 In order to determine the best interest of the patient for the purpose of clause 39(b), regard shall be had to whether

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

(b) the mental condition of the patient will improve or is likely to improve without the specified psychiatric treatment;

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

(d) the specified psychiatric treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a), (b) and (c).

41 Whoever seeks a person's consent on a patient's behalf is entitled to rely on that person's statement in writing as to the person's relationship with the patient and as to the facts and beliefs mentioned in clauses 38(4)(a) to (c), unless it is not reasonable to believe the statement.

42 (1) Where a substitute decision-maker approves or refuses treatment on behalf of a person pursuant to subsection 38(1), the Review Board may review the provision or refusal of consent when requested to do so by the attending psychiatrist or the patient to determine whether the substitute decision-maker has rendered a capable informed consent.

(2) Where the Review Board finds that a substitute decision-maker has not rendered a capable informed consent, the next suitable decision-maker in the hierarchy in subsection 38(1) becomes the substitute decision-maker.

CERTIFICATE OF LEAVE

43 (1) Notwithstanding any declaration of involuntary admission or declaration of renewal with respect to an involuntary patient, the psychiatrist of an involuntary patient may issue a certificate of leave for up to six months, in such form as prescribed by the regulations, allowing the patient to live outside the psychiatric facility subject to specific written conditions as may be specified in the certificate.

(2) A certificate of leave is not effective without the consent of the involuntary patient's substitute decision-maker.

(3) A patient for whom a certificate of leave is issued shall

(a) attend appointments with the psychiatrist or with any other health professional referred to in the certificate at the times and places scheduled from time to time; and

(b) comply with the psychiatric treatment described in the certificate.

(4) A psychiatrist who issues a certificate of leave shall give a copy of it to

(a) the patient;

(b) a substitute decision-maker who consented to the issuance of the certificate under subsection (1);

(c) the chief executive officer; and

(d) any other health professional involved in the treatment plan.

(5) The provisions of this Act respecting an involuntary patient continue to apply in respect of a patient who is subject to a certificate of leave.

(6) This Section does not authorize placing a patient on leave where the patient is subject to detention otherwise than under this Act.

44 (1) The psychiatrist, by a certificate of cancellation of leave, may, without notice, cancel the certificate of leave for breach of a condition or if the psychiatrist is of the opinion that

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

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

(2) A certificate of cancellation of leave is sufficient authority for one month after it is signed for a peace officer to take the patient named in it into custody and to a psychiatric facility for an involuntary psychiatric assessment.

45 (1) On application, the Review Board shall review the status of the patient to determine whether or not there has been a breach of a specific written condition of the certificate of leave.

(2) The Review Board, by order, may confirm or rescind the certificate of cancellation of leave.

46 (1) Where an involuntary patient leaves a psychiatric facility when a certificate of leave has not been granted, a peace officer, or other person appointed by the chief executive officer, may apprehend, without warrant, the person named in the order and return that person to the facility.

(2) An involuntary patient who has not been returned within one month after the patient's absence has become known shall, unless subject to detention otherwise than under this Act, be deemed to have been discharged from the psychiatric facility.

(3) A person who is returned to a facility under this Section may be detained for the remainder of the declaration of involuntary admission to which the person was subject when the person's absence was discovered.

TREATMENT IN THE COMMUNITY

47 (1) In this Section, "in the community" means outside of a psychiatric facility.

(2) A psychiatrist may issue a community treatment order respecting a person where the criteria in clause (3)(a) exist.

(3) A community treatment order must

(a) state that the psychiatrist has examined the person named in the community treatment order within the immediately preceding seventy-two hours and that, on the basis of the examination and any other pertinent facts regarding the person or the person's condition that have been communicated to the psychiatrist, the psychiatrist is of the opinion that

(b) state that the person's substitute decision-maker has consented to the person being placed on a community treatment order;

(c) state the facts on which the psychiatrist has formed the opinion that the person meets the criteria set out in clause (a);

(d) describe the services that will be provided to the person and the community treatment plan that is recommended for the person;

(e) state that the person is to submit to the medical treatment that is prescribed by the physician and is to attend appointments with the physician or with the responsible individuals identified in clause (f) in the places as scheduled, from time to time, consistent with good medical practice;

(f) identify the names of the health professionals who will be providing treatment and support services pursuant to clause (d);

(g) show the date on which the examination was made;

(h) be signed by the psychiatrist in the presence of one subscribing witness; and

(i) be in the prescribed form.

(4) For the purpose of determining whether the criteria in clause (3)(a)(iii) are met, Section 18 applies.

(5) Where a community treatment order has been issued under subsection (3), the psychiatrist shall provide a copy of it along with notice of the right to a hearing before the Review Board to

(a) the patient and the patient's substitute decision-maker;

(b) the chief executive officer; and

(c) any other health practitioner or other person who has obligations under the community treatment plan.

48 A community treatment plan shall contain

(a) a plan of treatment for the person subject to the community treatment order;

(b) any conditions relating to the treatment or care and supervision of the person;

(c) the obligations of the person subject to the community treatment order;

(d) the obligations of the substitute decision-maker, if any;

(e) the name of the psychiatrist, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order;

(f) the names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan;

(g) provision for the naming of another psychiatrist if the psychiatrist who issued the order under subsection 47(2) is unable to carry out that person's responsibilities under the order; and

(h) any other requirement as prescribed by the regulations.

49 (1) The psychiatrist may vary any part of the community treatment plan.

(2) In the event of a variation pursuant to subsection (1), the psychiatrist shall provide notice to the individuals named in subsection 47(5).

50 Where a person on a community treatment order no longer fulfils the criteria in subclause 47(3)(a)(iii), the person may choose to voluntarily continue with the obligations of the community treatment plan until its expiry, but the psychiatrist shall terminate the community treatment order.

51 A community treatment order expires six months after the day it is made unless

(a) it is renewed in accordance with Section 52; or

(b) it is terminated earlier in accordance with Section 55, 56 or 57.

52 (1) Where a community treatment order has demonstrated efficacy, the order may be renewed for a period of six months at any time before its expiry and within one month after its expiry.

(2) There are no limits on the number of renewals under subsection (1).

53 (1) A psychiatrist who issues or renews a community treatment order is responsible for the general supervision and management of the order.

(2) Where the psychiatrist who issues or renews a community treatment order is absent or, for any other reason, is unable to carry out the psychiatrist's responsibilities under subsection (1) or under Section 55, 56 or 57, the psychiatrist may appoint another psychiatrist to act in the psychiatrist's place, with the consent of that other psychiatrist.

54 (1) Where the psychiatrist who issues or renews a community treatment order or a psychiatrist appointed under subsection 53(2) believes, on reasonable grounds and in good faith, that the persons who are responsible for providing treatment or care and supervision under a community treatment plan are doing so in accordance with the plan, the psychiatrist is not liable for any default or neglect by those persons in providing the treatment or care and supervision.

(2) Where a person who is responsible for providing an aspect of treatment or care and supervision under a community treatment plan believes, on reasonable grounds and in good faith, that the psychiatrist who issued or renewed the community treatment order or a psychiatrist appointed under subsection 53(2) is providing treatment or care and supervision in accordance with the plan, the person is not liable for any default or neglect by the psychiatrist in providing the treatment or care and supervision.

55 (1) At the request of the substitute decision-maker for a person who is subject to a community treatment order, the psychiatrist who issued or renewed the order shall review the person's condition to determine if the person is able to continue to live in the community without being subject to the order.

(2) The psychiatrist may refuse to review the file of a patient upon request of the patient at any time during the three months following the date the file was previously reviewed.

(3) Where the psychiatrist determines, upon reviewing the person's condition, that the circumstances described in subclauses 47(3)(a)(i), (ii) and (iii) no longer exist, the psychiatrist shall

(a) terminate the community treatment order;

(b) notify the person that the person may live in the community without being subject to the community treatment order; and

(c) notify the persons referred to in subsection 47(5) that the community treatment order has been terminated.

56 (1) Where a psychiatrist who issued or renewed a community treatment order has reasonable cause to believe that the person subject to the order has failed in a substantial or deleterious manner to comply with that person's obligations under clause 48(c), the psychiatrist shall request a peace officer to take the person into custody and promptly convey the person to the psychiatrist for a medical examination.

(2) The psychiatrist shall not make a request to a peace officer under subsection (1) unless

(a) the psychiatrist has reasonable cause to believe that the criteria set out in subclauses 47(3)(a)(i), (ii) and (iii) continue to be met; and

(b) reasonable efforts have been made to

(3) A request under subsection (1) is sufficient authority, for thirty days after it is issued, for a peace officer to take the person named in it into custody and convey the person to a psychiatrist who shall examine the person to determine whether

(a) the person should be released without being subject to a community treatment order;

(b) the psychiatrist should issue another community treatment order if the person's substitute decision-maker consents to the community treatment plan; or

(c) the psychiatrist should conduct a psychiatric assessment to determine if the person should be admitted as an involuntary patient under a declaration of involuntary admission.

57 (1) Where the services required for a community treatment order become unavailable, the psychiatrist shall

(a) terminate the community treatment order;

(b) notify the person of the termination of the order and the requirement for the psychiatrist to review the person's condition pursuant to subsection (2); and

(c) notify the persons referred to in subsection 47(5) that the community treatment order has been terminated.

(2) Within seventy-two hours after receipt of the notice, the psychiatrist shall review the person's condition to determine if the person is able to continue to live in the community without being subject to the order.

(3) Where the person subject to the community treatment order fails to permit the psychiatrist to review the person's condition and the psychiatrist has reasonable cause to believe that the criteria set out in subclauses 47(3)(a)(i), (ii) and (iii) continue to be met, the psychiatrist may, within the seventy-two hour period, request a peace officer to take the person into custody and promptly convey the person to a psychiatric facility for an involuntary psychiatric assessment.

(4) A request under subsection (3) is sufficient authority, for thirty days after it is issued, for a peace officer to take the person named in it into custody and then promptly convey the person to the psychiatrist who made the request.

(5) The psychiatrist shall promptly examine the person to determine whether

(a) the person should be released; or

(b) the psychiatrist should conduct a psychiatric assessment to determine if the person should be admitted as an involuntary patient under a declaration of involuntary admission.

58 (1) A person who is subject to a community treatment order or the person's substitute decision-maker may apply to the Review Board to inquire into whether the criteria for issuing or renewing a community treatment order have been met.

(2) An application pursuant to subsection (1) may be made each time a community treatment order is issued or renewed.

(3) When a community treatment order is renewed and on the occasion of every second renewal thereafter, the person is deemed to have applied to the Review Board unless an application has already been made in the preceding month.

59 (1) The Minister shall undertake a review of the following matters:

(a) whether community treatment orders were or were not used during the review period;

(b) the effectiveness of community treatment orders during the review period;

(c) the methods used to evaluate the outcome of any treatment used under community treatment orders; and

(d) any further matters prescribed by the regulations.

(2) The review must be undertaken during the sixth year after the date on which Sections 47 to 59 come into force utilizing data collected on community treatment orders for the entire five-year period.

(3) The Minister shall make available to the public for inspection and table, in the House of Assembly, the written report of the review completed under subsection (1).

PATIENT-ADVISOR SERVICE AND PATIENT RIGHTS

60 (1) The Governor in Council may make regulations designating an organization as a patient-advisor service and the qualifications of a patient advisor.

(2) A patient-advisor service or a patient advisor in the employment of such a service or organization designated under subsection (1) shall not be employed by a district health authority or the Izaak Walton Killam Health Centre or have privileges at a district health authority or the Izaak Walton Killam Health Centre.

(3) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

61 (1) The patient-advisor service may offer advice and assistance to

(a) a person who is undergoing an involuntary psychiatric assessment;

(b) an involuntary patient who is subject to a declaration of involuntary admission;

(c) a patient who is on a community treatment order or an involuntary patient who is subject to a certificate of leave; or

(d) a substitute decision-maker of a patient referred to in clause (a), (b) or (c).

(2) A patient-advisor service shall

(a) meet as soon as possible with an involuntary patient, unless the patient objects, and the patient's substitute decision-maker, unless the substitute decision-maker objects;

(b) explain the significance of the situation to the patient;

(c) identify available options;

(d) communicate information in a neutral, non-judgemental manner;

(e) assist the patient in making application to the Review Board;

(f) assist in obtaining legal counsel, if requested, and applying for legal aid;

(g) accompany the patient to Review Board hearings, unless the patient or the substitute decision-maker objects;

(h) assist in identifying alternative decision-making as outlined in this Act if the patient lacks capacity; and

(i) maintain patient confidentiality.

62 A chief executive officer shall ensure that the patient-advisor service is given notice of

(a) a decision to admit a person as an involuntary patient;

(b) a decision to change the status of a voluntary patient to that of an involuntary patient or to change the status of an involuntary patient to that of a voluntary patient;

(c) the filing of each declaration of renewal in respect of an involuntary patient;

(d) the issuance of a community treatment order;

(e) the issuance of a certificate of leave; or

(f) an application to the Review Board in respect of an involuntary patient.

63 (1) Subject to the wishes of an involuntary patient or a substitute decision-maker, a patient advisor has the right at all reasonable times to meet and confer with an involuntary patient.

(2) Notwithstanding subsection (1), an involuntary patient may not object to a substitute decision-maker meeting with a patient advisor and vice versa.

64 A person who has been detained under a certificate for involuntary psychiatric assessment, a patient who has been admitted to a psychiatric facility by a declaration of involuntary admission or a patient who is the subject of a community treatment order shall not be deprived of any right or privilege enjoyed by others by reason of receiving or having received mental health services, subject to those rights prescribed by the regulations.

REVIEW BOARD

65 (1) The Governor in Council shall establish a Review Board to hear and consider applications under this Act.

(2) The Governor in Council shall appoint the members of the Review Board from a roster of

(a) psychiatrists who are members pursuant to the Medical Act, one of whom shall be a psychiatrist with a specialized knowledge of adolescent psychiatry;

(b) lawyers who are barristers pursuant to the Barristers' and Solicitors Act and who express an interest in mental health issues; and

(c) persons who do not meet the criteria of clauses (a) and (b) and who express an interest in mental health issues and preferably are or have been a consumer of mental health services.

(3) The Governor in Council shall determine the term of these appointments.

(4) A member of the Review Board is eligible for re-appointment after the expiry of the member's appointment.

(5) The Governor in Council shall designate one of the members of the Review Board appointed pursuant to clause (2)(b) as Chair of the Review Board.

66 (1) A panel of at least three members of the Review Board shall be appointed by the Chair of the Review Board or the Chair's designate to hold a review pursuant to Section 68.

(2) A panel may exercise all the jurisdiction and powers of the Review Board.

(3) A panel shall consist of at least one member appointed pursuant to each of clauses 65(2)(a), (b) and (c).

(4) Where a review concerns a patient who is under nineteen years of age, the panel should preferably include a psychiatrist who specializes in adolescent psychiatry.

(5) The Chair of the Review Board or the Chair's designate shall appoint a chair of the panel who must be a member of the Review Board appointed pursuant to clause 65(2)(b).

(6) A quorum for a panel consists of at least one member appointed pursuant to each of clauses 65(2)(a), (b) and (c).

67 (1) A member of the Review Board is not eligible to sit on a panel for an application relating to a patient if the member

(a) is the patient's spouse or common-law partner;

(b) is related by blood or marriage to the patient;

(c) is a psychiatrist or a physician who is treating or has treated the patient;

(d) is an officer, employee or staff member of the psychiatric facility in which the person is being treated;

(e) is a lawyer who is acting for or has acted for the patient or the psychiatric facility in which the person is being treated; or

(f) has a close personal or professional relationship with a person referred to in clauses (a) to (e).

(2) Where there is a reasonable apprehension of bias, a member of the Review Board shall remove himself or herself from the panel.

(3) A member of the Review Board who has sat on a Criminal Code (Canada) review board hearing for a patient shall not sit as a member on a panel of the Review Board for that patient.

68 (1) In addition to the mandatory reviews provided for in Section 37, the Review Board shall consider an application to review

(a) a declaration of involuntary admission or a declaration of renewal;

(b) a declaration of competency for involuntary patients pursuant to subsection 58(1) of the Hospitals Act;

(c) pursuant to subsection 42(1), whether a capable informed consent by a substitute decision-maker has been rendered;

(d) a community treatment order or a renewal of a community treatment order; or

(e) a certificate of cancellation of leave.

(2) In considering an application pursuant to subsection (1), the Review Board may make such recommendations to the chief executive officer as it sees fit respecting the treatment or care of a patient.

(3) Notwithstanding subsection (1), the Review Board may refuse to review the file of a patient upon request of the patient at any time during the three months following the date the file was previously reviewed.

(4) A request for the Review Board to conduct a review pursuant to subsection (1) may be initiated by

(a) the patient;

(b) a substitute decision-maker;

(c) a guardian appointed by law;

(d) a person who has been authorized to give consent under the Medical Consent Act;

(e) a person authorized by the patient to act on the patient's behalf;

(f) the chief executive officer;

(g) the Minister; or

(h) the Review Board where it believes it is in the patient's interest to have a review.

(5) An application pursuant to this Section must be in the prescribed form.

69 (1) The Review Board shall conduct its hearings for the review of a patient's file pursuant to Sections 37 and 68 as full oral hearings.

(2) A hearing must begin as soon as reasonably possible after an application is received but no later than twenty-one calendar days from the receipt of the application.

(3) In every application to the Review Board, the patient or any person who has applied on behalf of the patient, the patient's substitute decision-maker and the attending psychiatrist are parties and the chief executive officer is entitled to be a party.

(4) The Review Board may add as a party any person who, in the opinion of the Review Board, has a substantial interest in matters under review.

70 (1) In this Section, "clear days" does not include weekends or statutory holidays.

(2) The Review Board shall give three clear days written notice of the application to

(a) every party;

(b) every person who is entitled to be a party;

(c) the patient advisor if no one has been authorized to act on behalf of the involuntary patient; and

(d) to any person who, in the opinion of the Review Board, has a substantial interest in the subject-matter of the application.

71 (1) A hearing before the Review Board shall be closed except for the parties, the patient advisor, any person having material evidence, any person required for security and any other person the Review Board determines.

(2) Where the patient is unable or unwilling to attend a hearing before the Review Board and the patient has not appointed someone to act on the patient's behalf, the Review Board shall appoint a representative to attend the hearing and act on behalf of the patient.

72 Every party is entitled to be represented by counsel or an agent in a hearing before the Review Board.

73 (1) Every party is entitled to present such evidence as the Review Board considers relevant and to question witnesses.

(2) Every party, where possible, 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 at the hearing.

74 (1) The Review Board shall 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.

(2) For the purpose of a hearing, the Review Board may arrange for the patient to be examined by a second psychiatrist.

75 Members of the Review Board have the powers and privileges of commissioners appointed under the Public Inquiries Act.

76 (1) Within ten days after each review, the Review Board shall forward a written decision, setting out fully the conclusion of the Review Board, to

(a) the person requesting the review;

(b) the patient and the patient's representative;

(c) the patient's substitute decision-maker;

(d) the attending psychiatrist;

(e) the chief executive officer; and

(f) the Minister.

(2) The written decision referred to in subsection (1) may make an order as to the following:

(a) where an application is to cancel a declaration of involuntary admission or a declaration of renewal, the Review Board may cancel the declaration and change the patient's status to that of a voluntary patient or may refuse to do so;

(b) where the application is to review a physician's opinion that a patient is not competent to handle their personal affairs, the Review Board may cancel the declaration of competency or may refuse to do so;

(c) where the application is to review whether a substitute decision-maker made a capable informed consent, the Review Board may appoint another substitute decision-maker pursuant to Section 38 or may refuse to do so;

(d) where the application is to review a certificate of leave, the Review Board may revoke the certificate of leave and allow the patient to live in the community without being subject to the certificate of leave or may refuse to do so;

(e) where the application is to review a certificate of cancellation of leave, the Review Board may confirm the cancellation or may refuse to do so; or

(f) where the application is to review a community treatment order, the Review Board may revoke the community treatment order and allow the patient to live in the community without being subject to the community treatment order or may refuse to do so.

77 The onus of proof during a Review Board hearing shall be borne by the psychiatric facility.

78 In a proceeding under this Act before the Review Board, the standard of proof is proof on the balance of probabilities.

79 (1) A party may appeal on any question of law from the findings of the Review Board to the Nova Scotia Court of Appeal and any findings of fact made by the Review Board are binding on the Court.

(2) The notice of appeal shall be filed at the Nova Scotia Court of Appeal and served upon the other party not later than thirty days after the party receives the final decision or order of the Review Board.

(3) The Civil Procedure Rules governing appeals from the Supreme Court of Nova Scotia to the Nova Scotia Court of Appeal that are not inconsistent with this Act apply mutatis mutandis to appeals to the Court of Appeal pursuant to this Section.

(4) Where a matter is appealed to the Nova Scotia Court of Appeal pursuant to this Section, the decision of the Review Board takes effect immediately unless the Court of Appeal grants a stay of any order made pursuant to this Act where, in its discretion, it deems fit.

80 (1) Each year the Review Board shall make a report to the Minister of its activities during the preceding year.

(2) The Minister shall table the report in the Assembly within twenty days after it is made to the Minister if the Assembly is then sitting and, if it is not then sitting, within twenty days of the commencement of the next sitting of the Assembly.

(3) The annual report of the Review Board to the Minister shall not contain any personal information of patients.

GENERAL

81 No action lies or shall be instituted against any person who performs a duty, exercises a power or carries out a responsibility pursuant to this Act or the regulations for any loss or damage suffered by any person by reason of anything done in good faith, caused or permitted or authorized to be done, attempted to be done or omitted to be done by that person in the performance or supposed performance of that duty, the exercise or supposed exercise of that power or the carrying out or supposed carrying out of that responsibility.

82 (1) Section 71 of the Hospitals Act applies to the records of a patient in a psychiatric facility.

(2) For greater certainty, any issues dealing with an involuntary patient's competency to administer the patient's estate shall be dealt with pursuant to the Hospitals Act.

83 (1) The Governor in Council may make regulations

(a) designating psychiatric facilities;

(b) designating patient-advisor services;

(c) respecting patient rights;

(d) prescribing further items to be included in a community treatment plan pursuant to clause 48(h);

(e) respecting further items for the review of community treatment orders pursuant to clause 59(1)(d);

(f) prescribing the manner in which applications may be made to the Review Board;

(g) governing proceedings of the Review Board;

(h) respecting forms and providing for their use;

(i) defining any word or expression used but not defined in this Act;

(j) further defining or redefining any word or expression defined in this Act;

(k) deemed necessary or advisable to carry out effectively the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

CONSEQUENTIAL AMENDMENTS

84 Subsection 17(3) of Chapter 103 of the Revised Statutes, 1989, the Corrections Act, is amended by adding "or the Mental Health Act" immediately after "Act" in the first line.

85 (1) Section 2 of Chapter 208 of the Revised Statutes, 1989, the Hospitals Act, as amended by Chapters 6 and 29 of the Acts of 2000, is further amended by

(a) striking out clauses (b), (d), (e) and (g);

(b) striking out clauses (h) and (i) and substituting the following clause:

(c) striking out "and Fitness" in the second line of clause (j);

(d) striking out clauses (k), (l), (m) and (o);

(e) striking out clauses (q) to (u) and substituting the following clauses:

(f) striking out the period at the end of clause (v) and substituting a semicolon; and

(g) adding immediately after clause (v) the following clauses:

(2) Clause 17(p) of Chapter 208 is amended by striking out "persons under observation or of" in the first and second lines.

(3) Sections 20 to 23 and 30 to 51 of Chapter 208 are repealed.

(4) Subsections 52(1) and (2) of Chapter 208 are repealed and the following subsections substituted:

(5) Subsection 53(1) of Chapter 208 is amended by adding "or a psychiatric facility" immediately after "hospital" in the second line.

(6) Subsection 53(3) of Chapter 208 is amended by adding "or in a psychiatric facility" immediately after "hospital" in the second line.

(7) Subsection 54(1) of Chapter 208 is amended by adding "or a psychiatric facility" immediately after "hospital" in the first line.

(8) Subsection 54(2) of Chapter 208 is repealed and the following subsections substituted:

(9) Chapter 208 is further amended by adding immediately after Section 54 the following Sections:

(10) Section 55 of Chapter 208 is repealed and the following Section substituted

(11) Subsection 57(1) of Chapter 208 is amended by adding "or a psychiatric facility" immediately after "hospital" in the first line.

(12) Subsections 58(1) and (2) of Chapter 208 are repealed and the following subsections substituted:

(13) Subsection 58(3) of Chapter 208 is amended by striking out "Such a review by a review board or a judge of the county court" in the first and second lines and substituting "A review conducted pursuant to subsection (2)".

(14) Subsection 58(4) of Chapter 208 is repealed and the following subsection substituted:

(15) Subsection 58(5) of Chapter 208 is amended by striking out "or the review board, whichever is appropriate in the circumstances," in the first and second lines.

(16) Subsection 58(6) of Chapter 208 is amended by

(a) striking out "or the review board" in the first and second lines; and

(b) striking out "or it" in the third line.

(17) Subsection 59(1) of Chapter 208 is amended by

(a) adding "or a psychiatric facility" immediately after "hospital" in the second line; and

(b) adding "or the chief executive officer of the psychiatric facility" immediately after "hospital" in the fifth line.

(18) Subsection 59(2) of Chapter 208 is amended by adding "or a psychiatric facility" immediately after "hospital" in the second and in the seventh lines.

(19) Sections 60 to 70 of Chapter 208 are repealed.

(20) Subsection 71(2) of Chapter 208 is repealed and the following subsections substituted:

(21) Chapter 208 is further amended by adding immediately after Section 71 the following Section:

(22) Section 73 of Chapter 208 is repealed.

86 Section 4 of Chapter 279 of the Revised Statutes, 1989, the Medical Consent Act, is amended by adding "or the Mental Health Act" immediately after "Act" in the last line.

87 Clause 2(a) of Chapter 336 of the Revised Statutes, 1989, the Patients' Abandoned Property Act, is amended by striking out "a municipal psychiatric hospital, the Nova Scotia Hospital, the Nova Scotia Sanatorium" in the second, third and fourth lines and substituting "a psychiatric facility under the Mental Health Act".

88 (1) Section 2 of Chapter 379 of the Revised Statutes, 1989, the Public Trustee Act, is amended by

(a) striking out clause (d) and substituting the following clause:

and

(b) striking out clause (h) and substituting the following clause:

(2) Subsection 7(1) of Chapter 379 is amended by striking out "confined in the Nova Scotia Hospital" in the second line and substituting "in a psychiatric facility".

(3) Subsection 7(7) of Chapter 379 is amended by striking out "the Nova Scotia Hospital" in the third line and substituting "a psychiatric facility".

89 Clause 6(1)(g) of Chapter 12 of the Acts of 2002, the Smoke-free Places Act, is amended by striking out "a facility as defined in the Hospitals Act" in the first and second lines and substituting "a psychiatric facility as defined in the Mental Health Act".

90 Subsection 54(2) of Chapter 494 of the Revised Statutes, 1989, the Vital Statistics Act, as enacted by Chapter 29 of the Acts of 2000 and amended by Chapters 5 and 31 of the Acts of 2001 and Chapter 4 of the Acts of 2003 (2nd Sess.), is further amended by adding immediately after clause (h) the following clause:

91 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.

[home] [bills] 2003 (2nd session) bills


This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2004 Crown in right of Nova Scotia. Created September 29, 2004. Send comments to legc.office@gov.ns.ca.