understanding ltc legislation: rights advice in ontario new directions in seniors’ mental health...

Understanding LTC Legislation:Understanding LTC Legislation:Rights Advice in OntarioRights Advice in Ontario

New Directions in Seniors’ Mental HealthNew Directions in Seniors’ Mental HealthCanadian Coalition for Seniors’ Mental HealthCanadian Coalition for Seniors’ Mental Health

September 24, 2007September 24, 2007

Linda Carey, Manager Rights Advice ServicesLinda Carey, Manager Rights Advice ServicesDavid Simpson, Program ManagerDavid Simpson, Program ManagerPsychiatric Patient Advocate OfficePsychiatric Patient Advocate Office

Promoting Patients' Rights 2

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).


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


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


Core Services

• Advocacy• instructed

• non-instructed

• systemic (local, regional, provincial)

• self-advocacy

• Rights Advice

• Education• consumers, public, health professionals, families


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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)


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


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 Minister and been certified as having completed the course - PPAO


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


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


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


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


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


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


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


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


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


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


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


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


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


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)


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)


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


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


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


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


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


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


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.


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


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


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.


Long-Term….

• Placement co-ordinator may request that rights adviser give person the written notice on his/her behalf

• Requirements re written notice and rights advice must be satisfied within 3 months prior to admission


Long-Term….

• Rights adviser shall notify the placement co-ordinator if the he/she is aware that person intends to apply to the CCB or if another person intends to apply to the CCB to be appointed as a representative to give or refuse consent to the admission

• Admission not authorized pending CCB hearing


Long-Term….

• Some unanswered questions– when Bill 140 will receive Royal Assent – who will provide the rights advice to the

resident or the person to be admitted– requirements for rights adviser to fulfill

obligation– definition of a secure unit


Contact Information

Psychiatric Patient Advocate Office55 St. Clair Avenue West, Suite 802, Box 28

Toronto, ON, M4V 2Y7Telephone: (416) 327-7000 or 1-800-578-2343

Website: www.ppao.gov.on.caE-mail: [email protected]

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