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Pathways to Hospital Admission Under the Mental Health Act
Whether directly or indirectly, mental illness affects nearly everyone at some stage in their lives. While stigma and discrimination continue to create barriers to seeking help, there are legal mechanisms in place to assist in getting the help that is needed.
Apart from voluntarily attending at hospital for assistance, there are many pathways to hospital admission under the Mental Health Act. These are the most common:
- an application for psychiatric assessment, or “APA” (Form 1)
- an order for examination (Form 2); and
- a police custody order.
What is a Form 1? A Form 1 is an application for an assessment under the Mental Health Act. Once issued, this form provides a physician with the authority to hold an individual in a psychiatric facility for up to 72 hours to undergo a psychiatric assessment. The purpose of the assessment is to determine whether it is necessary for the person subject to the assessment to be admitted to the facility as a patient for observation, care and treatment.
The person subject to an assessment under a From 1 must be informed in writing of the reasons for the assessment, and of the right to retain and instruct a lawyer without delay. Failure to provide proper notice may result in the detention being deemed unlawful.
The physician who issues a Form 1 to authorize a 72-hour assessment must be satisfied that certain criteria are met. These criteria are divided into two sets, or ‘boxes’, under the Form: Box A and Box B. Only one set or box of criteria must be met for the Form to issue. Box A is known as the Serious Harm Test. Box B is for those who are considered incapable of consenting to treatment and meet other, specified criteria.
Among other things, Box A criteria requires that the physician signing the form has reasonable cause to believe that the person: has threatened or is threatening to cause bodily harm to themselves; has attempted or is attempting to cause bodily harm to themselves; has behaved or is behaving violently toward another person; has caused or is causing another person to fear bodily harm from them; or has shown or is showing a lack of competence to care for themselves.
Before issuing a Form 1 on Box A criteria, the physician must also be of the opinion that the person is apparently suffering from a mental disorder of a nature or quality that likely will result in: serious bodily harm to themselves; serious bodily harm to another person; and/or serious physical impairment to themselves.
Box B criteria is only considered if the physician is of the opinion that the person is incapable of making treatment decisions. These criteria look to the person’s history of mental disorder, previous treatment, and current mental or physical condition. The physician must be of the opinion that the person is likely to: cause serious bodily harm to themselves; cause serious bodily harm to another person; suffer substantial mental or physical deterioration; or suffer serious physical impairment.
What is a Form 2? A Form 2 is an order signed by a justice of the peace which authorizes the police to take an individual in custody to a psychiatric facility for an assessment by a physician. This order does not authorize the individual’s detention once at the facility, unless the physician completes a Form 1.
Anyone can attend at court before a justice of the peace to request a Form 2 for someone who is believed to suffer from a mental disorder. Typically, these orders are sought by concerned family members, friends, or health care workers who are familiar with the subject’s mental state and well-being. The order may be issued on the basis of sworn information that the person who is the subject of the order meets certain criteria. The justice of the peace does not have to see, or hear from, the person who is the subject of the order.
In attending at court to obtain a Form 2, it is helpful to bring documentation to support the application, including any medical or psychiatric information, information about current state of mind, location, contact information, and any history of violence.
A Form 2 may be issued when information under oath establishes that the person: has threatened or is threatening to cause bodily harm to themselves; has attempted or is attempting to cause bodily harm to themselves; has behaved or is behaving violently toward another person; has caused or is causing another person to fear bodily harm from them; or has shown or is showing a lack of competence to care for themselves.
Before issuing a Form 2, the justice of the peace must have reasonable cause to believe that the person is apparently suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to themselves, serious bodily harm to another person, or serious physical impairment to themselves, based on the information presented.
What is a Police Custody Order? In circumstances of danger, where there is no time to attend before a justice of the peace to obtain a Form 2 order for examination, a police officer has the authority to take an individual in custody to an appropriate facility for examination by a physician, if certain criteria are met.
In order to act with this authority, a police officer must have reasonable and probable grounds to believe that a person is acting, or has acted, in a disorderly manner, and reasonable cause to believe that the person: has threatened or is threatening to cause bodily harm to themselves; has attempted or is attempting to cause bodily harm to themselves; has behaved or is behaving violently toward another person; has caused or is causing another person to fear bodily harm from them; or has shown or is showing a lack of competence to care for themselves.
Before apprehending someone for examination, a police officer must form the opinion that the person is apparently suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to themselves, serious bodily harm to another person, or serious physical impairment to themselves.
After taking someone to a facility for examination, the police officer must remain with the individual until the facility agrees to take custody.
Do you, or someone you know, need legal assistance? Please contact us. We are here to help.
PLEASE NOTE: We cannot provide legal advice to people who are not our clients. The above is not legal advice, but provides general information only. You should not rely on this information to determine your legal rights and obligations. If you have specific legal concerns, we strongly recommend that you obtain legal advice directly from a lawyer. If you would like to speak with and/or retain a lawyer at McKenzie Lake Lawyers LLP, please contact us at 519-672-5666, or through our website contact page, or individual profile page contact information.
This article was written by Administrative and Healthcare Lawyer Julie Zamprogna Ballès and articling student Audrey Monchamp.
