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Alex Raben: [00:00:00] Hello, listeners, this is Alex here. Welcome back to Psyched for the month of July. Instead of one episode, you'll be getting five. That's because we're going to be doing a special mini series in which we cover clinical skills in psychiatry. So in the past we've tended to cover specific disorders or illnesses. But these five episodes will focus on approaches and competencies that will help you in your training in psychiatry. We hope that you will enjoy. We are recording.
Bruce Fage: [00:00:39] Welcome to PscyhEd, the Educational Psychiatry Podcast for Medical Learners by Medical Learners. If you're return listener, welcome back and if it's your first time, thank you for joining. We're going to be focusing on something a little bit different today. We're going to talk about some of the ways in which psychiatry interacts with the legal system and some of the specifics regarding mental health legislation in Ontario. Your host today are Dr. Alex Raben, a fourth year psychiatry resident at the University of Toronto, and myself, Bruce Fage, a fifth year psychiatry resident here at U of T. We are thrilled to be joined today not by a psychiatrist but by Kendra Naidoo, legal counsel for the Centre for Addiction and Mental Health in Toronto. Kendra is a graduate of UBC Law School and went to University of Toronto for her undergraduate degree. I've had the privilege of learning from Kendra at different points throughout my residency and she is extremely helpful. She's an expert on mental health law and empowers us to provide the best possible patient care. Kendra, we're happy to have you here.
Kendra Naidoo: [00:01:35] Thanks very much for having me. I'm delighted to be here. It's always a pleasure to work with you, Bruce and Alex and all of our medical learners and navigating these complex and nuanced issues and mental health law.
Alex Raben: [00:01:46] Thanks for being here, Kendra. This is Alex. Should we go over the objectives for today? Okay. So number one, we'd like to review some of the history behind mental health legislation in Ontario by the end. We'd also like to ensure we have a discussion about involuntary hospitalisations, including criteria relevant to the legal forms involved in that. Number three, we're going to review capacity assessments and processes for substitute decision-making. And finally, number four, we will talk a bit about consent and capacity boards. So, Kendrick, keeping in mind that most of our listeners are not lawyers, maybe you can start us off by providing an overview of mental health law in Ontario. What are the relevant pieces of legislation?
Kendra Naidoo: [00:02:40] Sure. So there are two pieces of legislation that are most central to mental health law in Ontario. The first is the Mental Health Act, and the Mental Health Act governs hospitalisation in psychiatric facilities, admissions to those hospitals and what happens while people are there. They also provide for community treatment orders. The second piece of legislation is the Health Care Consent Act. This applies to all treatment, whether it's medical, physical or psychiatric. The Health Care Consent Act governs the principles behind obtaining consent to treatment, assessing capacity to consent to treatment, as well as identifying substitute decision makers and the rules that govern those decision makers.
Alex Raben: [00:03:21] So so it's the Health Care Consent Act, as well as the Mental Health Act together that are the two main pieces of legislation involved in psychiatry in the law.
Kendra Naidoo: [00:03:31] That's correct.
Bruce Fage: [00:03:33] So, Kendra, within psychiatry, we often work with people who are experiencing significant mental health concerns, and sometimes there are very serious safety issues. For example, someone may be extremely depressed and at high risk of suicide or experiencing psychotic symptoms, which severely impaired their ability to take care of their basic needs, like food and shelter. Thus, there are times where we as doctors are compelled to use the Mental Health Act to detain people involuntarily in hospitals. I think it's one of the more challenging and stigmatised aspects of mental health services for patients, their families and providers. It can be wrought with emotion and personally it's a part of my work that is both necessary but very challenging. One of the goals of this episode is to demystify and provide some basic information about involuntary hospitalisation. Can you tell us about some of the process?
Kendra Naidoo: [00:04:23] Sure. So one of the most common processes to initiate an involuntary hospitalisation is called an application for psychiatric assessment, and it's commonly known as a form one. A form one can be completed by any physician as long as they've examined the person within the last seven days from the day it's signed. The form one is authority for seven days for that person to be taken into custody, usually by the police and taken to a psychiatric facility for an assessment. Once they're there, the psychiatric facility is authorised to detain the person for up to 72 hours in order to conduct that assessment. There are criteria that have to be met before a physician can fill out one of these forms. And this is recognising that it's quite an extraordinary power for a physician to have. Those criteria are commonly known as the box and the box B criteria. The box A criteria have most a past or present test and a future test in the box. A past present test. The person must have threatened or attempted to cause bodily harm to A person or B currently threatening or attempting to cause bodily harm to another person or to themselves. They must have behaved violently or be behaving violently at the time, or causing someone else to fear bodily harm from them. Or they have demonstrated a lack of competence to care for themselves. In the future. Test the physician must be of the opinion that the person is likely suffering from a mental disorder that is likely to result in either serious bodily harm to another person to themself, or what we refer to as serious physical impairment, which is harm that might come to the patient but isn't intentionally brought upon.
Alex Raben: [00:06:14] So if I can summarise what you're saying, there is this form one and that is the legal form that allows a physician, once it's filled out, to compel someone to come into hospital for a psychiatric assessment. And there are two sort of branch. There's a box A and a box B criteria. And of the box A, there's kind of two branches, the past and present test and the future test. That's right. In the past and present test. That's like talking about the risk that we're trying to avoid by filling out this form.
Kendra Naidoo: [00:06:52] Right. So it refers to the condition of the person in the current state that is giving rise to concerns and also requires that there be a future risk of harm either to the patient or to themselves. So both components are necessary to fulfil the box a criteria.
Alex Raben: [00:07:07] And the present risks includes three things so harm to themselves, meaning like a suicidal risk, let's say harm to someone else. If, for instance, if someone was threatening someone else or acted violently towards someone else. And then number three is more about their ability to care for themselves when they are mentally ill.
Kendra Naidoo: [00:07:32] Right. So the serious physical impairment criteria might come up if, say, someone has a co-occurring medical condition like diabetes or heart condition, and because of their mental illness, they're not able to care for that and so are at risk themselves of medical harm because of that.
Alex Raben: [00:07:51] Well, we're talking about that risk. Is there an element of degree? I recall at some point being taught it has to be imminent risk. It has to be of a certain severity. But I also know that the like it doesn't seem that the form really lays that out clearly. I'm wondering what, from your perspective, that level of risk needs to be.
Kendra Naidoo: [00:08:14] There's no requirement for imminence, but the harm does have to be likely in the sense that it is going to occur in what we in law call a reasonably foreseeable time. That's hard to put a cut-off date on that likely criterion, but we would be thinking about it in orders of magnitude in terms of days or weeks or a few months. But if we're getting into many months, six months or into the the into years, then that's probably too far away to be likely in terms of the severity of the harm. It does require that it be serious bodily harm to themself or others, which is defined in law as harm that is more than trivial, or that the physical impairment, the medical consequences to the patient be significant.
Alex Raben: [00:09:08] Is it possible for you to give us an example of what might be considered trivial?
Kendra Naidoo: [00:09:11] Sure. So if an individual, say, were to lightly push an otherwise perfectly healthy adult, that would be considered a harm that is likely trivial. Now, if someone were to seriously push a very small child or a frail elderly person, then that could rise to the level of being more than trivial. But things like pushes or light contact would generally be considered trivial.
Alex Raben: [00:09:43] Okay, that's that's helpful to understand.
Bruce Fage: [00:09:46] And so, Kendra. You mentioned that there's also a box B. Can you tell us about Box B and some of the differences with Box B and Box A?
Kendra Naidoo: [00:09:53] Sure. So Box B is newer than Box A, It was put into the legislation in the year 2000 in response to concerns that you really do have to reach quite a high threshold before you can get to the box eight criteria. And sometimes it can be beneficial to intervene sooner so that people can get the help that they need without getting to the point where their safety or the safety or others are at risk. So the box B criteria contains a number of criteria. It requires that the person be found or believed to be not capable of consenting to their own treatment. And their substitute decision-maker has consented to treatment. And we're going to talk about that a little later in the podcast. It requires that they have a history of mental disorder and that they have previously been treated for that mental disorder and experience significant clinical improvement with treatment. It further requires that there is a likely risk of one of the harms. We've already talked about serious bodily harm to self or others or serious physical impairment, and contains this additional criteria where there could be a likely risk of what we call substantial mental or physical deterioration. So in essence, if someone has a history of being treated and improving with treatment, if they're not capable and there's consent to treatment and there is a likely risk that they will suffer substantial mental or physical deterioration, then the box B criteria can be invoked.
Bruce Fage: [00:11:26] So it sounds like one of the major differences between Box A and Box B is that in box B, you have that, I guess, extra potential risk where it includes substantial mental deterioration in addition to the criteria that are outlined in Box A And also you have to have been treated before and shown benefit from the treatment. Do you like is there any guidance on how you might define substantial deterioration?
Kendra Naidoo: [00:11:56] So the case law has said that when we're talking about substantial mental deterioration, that means the person is likely to become more profoundly symptomatic. And that use of the word substantial refers to consequential or considerable deterioration. This inevitably requires a level of clinical judgement on the part of the physician who's assessing this and is going to have to be looked at in light of the particular patient and how their symptomatology plays out. But for a particular patient, if they're likely to become more profoundly symptomatic, then that would be considered substantial mental deterioration.
Bruce Fage: [00:12:40] I think you've touched on something that is very challenging within the work that we do in that there is this element of clinical judgement and sometimes it's hard to know exactly what the actual risk is likely to be and we want to support people and use the least restrictive means possible when we're helping them get well. And we also want to be safe and make sure that people don't come to significant harm. When a doctor fills out a Form One, what happens next? What's the process for moving forward with that?
Kendra Naidoo: [00:13:11] So the form then gets sent to the police, and the police have seven days to find the person and to bring them to a psychiatric facility once they arrive at the psychiatric facility. The as I said, the facility is authorised to detain them for up to 72 hours for the purpose of getting a psychiatric assessment. So the whole idea behind Form One is that a physician in the community and it's often a family physician, sees that there are things going on with the person that likely requires a psychiatric assessment and the Form One is a mechanism by which they can have them brought to have that assessment. By the end of that 72 hours, the psychiatric facility has to do one of three things. They either decide that the person does not need to be admitted to a psychiatric hospital and discharges them, or they decide that the person. Needs to be admitted to a psychiatric hospital and the person is willing to stay and so they can be admitted as a voluntary patient or if the person needs to be in hospital and is not willing to stay, then they can be admitted as what's called an involuntary patient. An involuntary admission is initiated by completing a Form Three, and the Form Three requires that the person meet either the box, say, or the box B criteria. If that happens, then the person can be detained for up to two weeks on the Form Three, and by the end of the two weeks, if the person continues to require an involuntary admission that can be renewed with a Form Four and then there are subsequent renewals that can occur.
Kendra Naidoo: [00:14:53] There are a lot of procedural safeguards that come with these kinds of involuntary detentions. The patient has to receive written notice of their detention by way of what's called a Form 30. The forms have to be filed and reviewed by what's called the officer in charge. The officer in charge is the person in charge of the psychiatric hospital. Every hospital does that process differently. So it's important for physicians and learners to get to know the particular processes in their hospital. But the point of that is to make sure there's someone in the hospital administration who's making sure all of the right procedural safeguards are being carried out. The physician also has to give notice of the detention to a rights advisor, and rights advisors usually come from the office of the Psychiatric Patient Advocacy Office, which is an arm's length, arm's length branch of the Ministry of Health. The rights adviser will meet with the patient, explain to them that they're being detained and the criteria on which they're being detained and inform them of their rights, including and importantly, their right to consult with a lawyer and their right to apply to a tribunal called the Consent and Capacity Board, who will convene a hearing to review their detention and decide if the doctor's decision to have them detained was correct.
Bruce Fage: [00:16:10] So thanks, Kendra, for that explanation, it sounds like after a doctor fills out a Form One, the patient can be brought to hospital and detained for up to 72 hours. And they also are issued something called a Form 42 at that time, which notifies them that they're on a Form One that's right. At the end of the form one period, one of three things can happen. They can be discharged home. They can be admitted to the hospital voluntarily, or they can be admitted involuntarily on something called a Form Three. And it sounds like there's a similar process where you notify the patient with the Form 30. But at that point you also get a rights adviser involved to help advise a person of their right to consult with a lawyer and contest the finding.
Kendra Naidoo: [00:16:52] That's right.
Bruce Fage: [00:16:54] And when you say psychiatric facility, what do you mean by that?
Kendra Naidoo: [00:16:57] So psychiatric facilities are designated by the ministry under the Mental Health Act. They're often commonly referred to as Schedule one psychiatric facilities, because that's the part of the legislation that they're in. It's very easy to find out if a hospital is a psychiatric facility or a Schedule one facility. Googling Ontario Ministry of Health Schedule one psychiatric facilities will pull up the list. There's approximately 80 to 90 of those facilities in Ontario. Most of the major hospitals are psychiatric facilities. It's the smaller community or rural hospitals that may not be designated.
Alex Raben: [00:17:36] I'm just putting myself in the shoes of some of our listeners in Ontario who have a who are in medical training right now. And I'm trying to think about where they would come across this kind of legislation or where they would bump up against it. And I guess for them it would mostly be in the emerge where they would potentially be putting people on form ones, possibly if they're doing family medicine, they would see it in their office as well, although potentially less frequently than than in the emerge. So if they are seeing someone in the emerge, they would be filling out the Form One as well as doing the 42, because they are simultaneously asking for the assessment and starting the detainment in the hospital, assuming they're working in a Schedule one facility. Would that be true?
Kendra Naidoo: [00:18:30] That's right. So if they're in an emergency department in a schedule one psychiatric facility, they do the Form One and the Form 42 at the same time, as you say, applying for the assessment and starting the detention at the same time, if they're not in a Schedule one psychiatric facility, then they fill out the form one and that non-schedule one facility then needs to transfer the patient forthwith or as soon as they can to a schedule one facility. And when the patient arrives at the schedule one facility, the receiving physician there will fill out the Form 42 and that's when the 72 hour detention commences.
Alex Raben: [00:19:09] Gotcha.
Bruce Fage: [00:19:11] And what if there's no need for 72 hours? Like what if you finish the assessment early? Can the Form one be stopped before the 72 hour limit?
Kendra Naidoo: [00:19:19] Yeah, it can be stopped at any time when the assessment is complete, and that would either occur by discharging the patient, filling out a Form three for the involuntary admission, or just cancelling the Form one and documenting that the patient has agreed to remain as a voluntary patient.
Alex Raben: [00:19:35] And kind of riffing off that. Bruce Like, I think we often find ourselves in situations where we're not entirely sure on day one, and so we may. And so even though you've a psychiatrist or a psychiatry resident may have seen someone on day one, they can also kind of continue the assessment onto the second and third day if need be.
Kendra Naidoo: [00:19:57] That's absolutely right. As long as they get it done and make one of those three decisions before the 72 hours expires.
Alex Raben: [00:20:03] Right.
Bruce Fage: [00:20:05] What about if a family member has concerns about their loved one and the their loved one refuses to go and see a doctor?
Kendra Naidoo: [00:20:14] So. If they can get them to say, go see their family physician, any doctor can fill out a Form one if they've seen the patient in the last seven days. If they are refusing to go see a doctor, there isn't a doctor available. There is something called a Form two, which is a justice of the peace. Order for examination is the official name of the form. Justice of the peace for those that don't know is another kind of judge. You can go see a Justice of the Peace 365 days a year in any courthouse in Ontario, and they don't work 24 hours a day. But you can always call the courthouse to find out what the hours are for the justice of the peace. The process is to go to the courthouse, ask to speak to a justice of the peace, to get a Form Two, and then whoever has gone there can swear information before a justice of the peace that either the Box A or the Box B criteria or both have been met. And they need to give specific information to support that finding. If the justice of the peace is satisfied with the information, then they'll issue one of these form twos that get sent to the police, who then have seven days to go and find the person, pick them up and bring them to a hospital for examination.
Kendra Naidoo: [00:21:31] It doesn't authorise the hospital to detain the person. And that's a big difference between a form one and a form two. So when the person arrives at the hospital, they have to be assessed as soon as possible and then a decision will be made about whether to admit them voluntarily. Is more psychiatric assessment needed so that they can do it. And if that's the case, they would do a form one and start a 72 hour detention at the hospital. For anyone going to get a Form Two, it can really be anyone. There's no stipulation on who it can be. It's often friends or family members, but it can be members of a care team, neighbours, any kind of supports that a person has in the community, they have to swear the information under oath, which means it has to be true and it's really helpful to give the justice of the peace all of the information that you have, including information about how to find the person, because the police only have seven days. And so the more information you can give, the better to ensure the success of the form.
Alex Raben: [00:22:33] And then I think there's also the third option, where someone is brought in voluntarily to a hospital, which is if the police are called because they have certain powers under the I think it's the Mental Health Act, I could be wrong about what part of the legislation, but they you can correct me, Kendra, but then they have the power to bring someone to an emergency department. By that sort of third option. Is that not?
Kendra Naidoo: [00:23:01] Yeah, that's absolutely right. It is. Under the Mental Health Act, the police have their own discretion if they're called to a scene and when they arrive, they believe that somebody appears to be suffering from a mental disorder and is either at risk of causing harm to others or not able to care for themselves. They have their own discretion to decide to take someone into custody, into a psychiatric facility. An important thing to note about that is that police forces generally won't invoke that power unless they actually observe the behaviour giving rise to the risk of harm. So it can be a very powerful thing in the moment. If there's a crisis, call the police and they have the ability to take someone to a hospital. But if by the time they get there, the person is quite settled and they're quiet and they're not exhibiting any of the behaviours that give rise to a harm, the police might at that point say that they're not going to exercise their discretion. And that's where the form too can be a very useful tool for friends and family members. Right?
Alex Raben: [00:24:04] So just like in any normal life situation, if you feel at risk or something is happening, that's an emergency. You would call the police if your loved one is not doing well, but there's not an acute emergency that would warrant the police coming, then you could fill out a form, too, to get them seen.
Kendra Naidoo: [00:24:21] Absolutely.
Bruce Fage: [00:24:23] So thanks, Kendra, for outlining some of the processes that relate to involuntary hospitalisation in Ontario. I'd like to shift the conversation a bit and talk about another area of psychiatry that intersects with the law, its capacity and specifically capacity to consent to treatment of a mental disorder. Sometimes patients and their providers will disagree about a diagnosis. So for example, a psychiatrist may make a diagnosis of schizophrenia and the person might not agree that they have the diagnosis and may not want treatment. What happens in these situations?
Kendra Naidoo: [00:24:54] So the first thing to think about in those situations is whether that person is actually able to make that decision. In other words, are they capable? When we're talking about capacity, it's important to remember that capacity to consent to treatment is treatment specific. Everyone is presumed capable of making their own decisions about their health care, and if they are to be found not capable with respect to a treatment, there has to be a particular treatment that is proposed. That treatment has to be discussed with the patient and they're given all of the necessary and relevant information and then their capacity to consent to that particular treatment assessed. There are two branches to the test for capacity, and that's legislated in the Health Care Consent Act. The first branch is whether the person is able to understand the information that has been given to them. And the second branch of the test is whether they're able to appreciate the reasonably foreseeable consequences of a decision or a lack of a decision about that particular treatment.
Alex Raben: [00:25:58] Can you take us through those two branches? Like what differentiates between understanding the proposed treatment versus appreciating it?
Kendra Naidoo: [00:26:10] Absolutely. And I think one of the things to bear in mind is that the emphasis is on their ability to understand and their ability to appreciate. It's quite a significant thing to take away someone's right to make their own decisions about treatment. And so we only do that where they really lack the ability to make the decision. As for the two branches, the first branch of the test, the ability to understand, boils down to a basic cognitive capacity test. Do they have the ability to process, retain and understand the information that's been given to them generally? So it doesn't have anything to do with how they view their own situation or how they apply the information to themselves. It's about generally are they able to take in process and retain information in the context of someone suffering from schizophrenia? A classic example of that is someone who's able to recognise generally that there are people out there who may suffer from something that resembles schizophrenia and those people might benefit from, say, antipsychotic medication. It's in the second branch of the test that we focus on. How does the person take that information and apply it to their own circumstances? So that starts with an investigation of whether the person is able to recognise that they are affected by the objective manifestations of their mental condition. So the mental condition will manifest itself in terms of symptoms and behaviours arising from those symptoms. Are they able to recognise the possibility of those symptoms and those behaviours? It's important to note that the patient does not or the person does not have to agree with the diagnosis or the label that we put on their condition. They don't have to agree that it's an illness. They don't even have to cast it necessarily in negative terms.
Kendra Naidoo: [00:28:01] But when we think objectively about how that illness is manifesting in terms of symptoms and behaviours, are they able to recognise that they're affected by them? If the answer to that is no, if they're not able to recognise that they're affected by the manifestations of their condition, then they're not capable and they fail the second branch of the test. If they are able to recognise that they're affected by the manifestations of their condition, then we go on to an examination of their ability to appreciate what we call the parameters of the decision. So the nature of the treatment, what is it? Is it a pill, is it a needle, Is it surgery? Are they able to recognise the possibility that that might benefit them? Are they able to recognise the potential consequences of not taking the treatment? And if they are, then they are considered capable and if they're not, if they are not able to recognise the potential benefits or the consequences of not taking the treatment, then they're not able to appreciate the consequences of their decision. So once we've decided that they're able to recognise the manifestations of their condition, it really turns to an analysis of whether they're able to weigh the information. They don't have to weigh the information the same way as their healthcare team. They may ultimately come out the other end with a decision that we consider to be ill-advised or not in their best interests. But it's not about what it's in their best interest. It's not about whether they agree with their physician or their healthcare team. If they're able to weigh the information to recognise the possible risks and benefits, then that person is capable.
Alex Raben: [00:29:44] Of making any decision whether we agree with it or not, just like.
Kendra Naidoo: [00:29:47] Right. With respect to that particular treatment. Yeah.
Alex Raben: [00:29:50] So the. Um. When we kind of lay it out in legal terms, it I think there's a lot to take in there, but it certainly can seem clear cut. But in reality, I think, Bruce, maybe you would agree. I think it's anything but Maybe it would be helpful for us to propose an example of when this might apply and kind of think through that as a group. I suppose we could think of someone with schizophrenia who, well, we would label him as schizophrenia, but who, let's say when they become unwell, they get worried that their brother is trying to harm them. So then they, you know, try to protect themselves, maybe at times are violent towards the brother because they think that they're going to hurt them. And so when we see that, we point that out to them, we tell them the diagnosis and let's say the understand piece of that is that they understand this illness of schizophrenia exists. They understand that it can cause paranoia. But then we move. Let's say that's true. We then have to move to the appreciation. And let's say they recognise even that they're paranoid. But when we propose a treatment like an antipsychotic to help with that, they say no, that's not, there's no chance that could help me. Would that, what would, would that case be a lack of appreciation if that's true.
Kendra Naidoo: [00:31:29] Well, I think you'd have to drill that down. So, you know, when you're having the when you're doing the capacity assessment and having that conversation with the person, you'd want to, as you've said, not only tell them about the diagnosis, but explain it to them in reference to the symptoms and the behaviours and be mindful of the labels that we're putting on things. So you may tell them we believe that you're paranoid. And what we mean by that is that you sometimes believe things that are not true. For example, this belief you have that your brother is trying to harm you and that has resulted in you being violent against him. So there is a certain aspect of how you frame the information in your example. If the person accepts that, yes, sometimes I believe he's trying to hurt me and maybe that's not true. But no, I don't want to take that anti-psychotic medication. You then want to get into a discourse about why not. Right. And exactly take a look at the patient's reasons for refusing the medication. If it's because they know that in the past they've taken medication and gotten better, but have, for example, experienced significant side effects, then that may reflect an ability to weigh the risks and benefits of the information. But if they're showing signs that the illness itself is interfering with the decision-making process, so they, despite a history in the past of improving with medication, if they're adamantly denying any improvement and you talk to them, remember last time you were in hospital, we gave you this medication and you were able to go back to work and we discharged you from hospital and you were doing great.
Kendra Naidoo: [00:33:11] If they're still adamantly denying that, then that may be an indication that they're not able to weigh the information. Right. The last piece that's really critical because we as we said, we're focusing on the ability to understand and the ability to appreciate not actual appreciation and actual understanding. We have to ask ourselves, why did they lack this ability? Why don't they understand or why don't they appreciate? And we need to show that it's because of the mental condition itself. There are a lot of reasons why somebody may not actually understand or appreciate information. If there's a language barrier, for example, if they have particular communication difficulties that mean they can't take in complex ideas and need it to be presented to them in simple, concrete terms, maybe they have a poor relationship with the physician and that interpersonal difficulty is getting in the way. Those are all reasons why they may lack understanding or appreciation, but have the ability, if the information was presented to them in a way that was consistent with their learning needs. So you have the final part of the test is getting to the point where it's the illness itself or it's the condition itself that is interfering with the decision-making and not other factors that could be mitigated.
Alex Raben: [00:34:27] Right. That's helpful because that helps me understand this word ability and why that's so important. It's you have to go to the necessary lengths to make sure you're testing the ability. And it's not for other reasons.
Kendra Naidoo: [00:34:40] Exactly.
Alex Raben: [00:34:41] And it also sounds like it really does require some drilling down and some time you have to spend some time on this to really understand the capacity of the person you're you're seeing.
Kendra Naidoo: [00:34:55] I would agree with that completely.
Alex Raben: [00:34:57] Yeah. And then I guess we've talked about appreciation a bit more than understanding, and perhaps that's because it's the one that comes up a bit more often. But are there like what kind of cases would we see that might involve debt understanding peace.
Kendra Naidoo: [00:35:14] So someone might lack the ability to understand, for example, if they have extreme memory deficits. So when you tell them something within a couple of minutes, they're not able to recall that information if they have extreme thought disorganization. So they can't process the information that you're giving them. The other time it may come up is if the person's mental condition leads them to be so disregulated or agitated that they cannot sit and sustain a conversation for any meaningful period of time. And that's because of the illness that may reflect an inability to understand because they can't taken the information. So it's really referring to cognitive deficits that prevent them from receiving or retaining the information.
Alex Raben: [00:36:01] Right.
Bruce Fage: [00:36:03] So it sounds like it's a really high bar to deem somebody incapable to consent to treatment. And I think within mental health, we want to support people to make the best decisions that they can and work with them to develop a plan to meet their goals, to make sure they're living the kind of life that they want to live and helping them manage symptoms. Once you if you think somebody is incapable, what practically happens? Are there forms? Who do you have to tell?
Kendra Naidoo: [00:36:34] So it depends on the setting that you're in. If the finding of incapacity is being made in a psychiatric facility and it relates to a psychiatric medication, so medications to treat the mental condition, then they have to receive what's called a Form 33. And that's a formal notice to them that a finding of incapacity has been made and they have a right to retain a lawyer. They also have to receive rights advice similar to the rights advice that's provided for an involuntary detention. And they have the rights adviser will meet with them, explain what it means to be found, not capable of consenting to that particular treatment. And they have a right to apply to the consent and capacity board for a review of whether they meet or don't meet that two-part test for capacity.
Bruce Fage: [00:37:20] And if they are found to be incapable and the ECB upholds that finding, who decides?
Kendra Naidoo: [00:37:29] So then a substitute decision maker is identified, and neither the health care team nor the patient get to choose the substitute decision maker. There is a hierarchy, a list that is set out in the Health Care Consent Act that determines who will consent the high from starting from the highest ranked. It's a guardian of the person. So that's appointed someone appointed as the decision maker by the court, followed by a power of attorney for personal care, then someone that has been appointed by the ECB. And then after that we get into family members. So first a spouse or a common-law partner, then a parent or a child, then siblings, and after that, any other relative.
Bruce Fage: [00:38:14] And what if the person doesn't have anyone available in their life who could provide that consent?
Kendra Naidoo: [00:38:20] So if none of those people exist, then the Office of the Public Guardian and Trustee, which is an office of the government that is specifically designed for decision making, they will become the substitute decision maker.
Alex Raben: [00:38:33] What happens in that period where you've found someone is incapable of making a treatment decision and they've decided that they disagree and they are going to appeal to the ECB, the consenting capacity board. Can you can you start the treatment? Well, we're waiting for the ECB. Can you look what what happens in that period while you wait for the ECB to decide one way or the other?
Kendra Naidoo: [00:39:05] So if the patient has indicated an intention to apply for to the CCB (Consent Capacity Board), then no new treatment can be started for the next 48 hours. When I emphasise new treatment, because if they have already been on treatment, then that treatment can continue, provided you have the consent of the substitute decision maker. But you can't start any new treatment in the category that they've been found incapable for until 48 hours has passed at 48 hours. If they have not applied the consenting capacity board, then the new treatment can be commenced. If they have applied to the ECB, then the new treatment cannot be commenced until after the ECB has rendered their decision.
Alex Raben: [00:39:49] And what qualifies as indicating that they want to go to the ECB?
Kendra Naidoo: [00:39:54] It's I'd say it's a relatively low bar. Not everybody is sophisticated enough to voice the words I want to apply to the ECB, but in the process of providing them rights advice, following the finding of incapacity, it will be explained to them that there is this tribunal who reviews these decisions and they will be asked, Do you want do you disagree, and do you want to challenge the physician's finding? And it's really any statement by the person that they want to exercise that legal right. So they might say, I want to go to the ECB, but they might say I want a lawyer or I want to challenge or I want to appeal. And that would all be indications that they want to exercise that legal right. So something that sounds like that.
Alex Raben: [00:40:38] Right. And then they have 48 hours to make that decision. After that be able to start the treatment.
Kendra Naidoo: [00:40:47] Right.
Alex Raben: [00:40:47] Gotcha. And what about stopping treatment.
Kendra Naidoo: [00:40:50] If the treatment is not medically recommended or is otherwise harmful to the patient, then absolutely, you can stop it. Okay. Yeah.
Alex Raben: [00:40:58] So let's say you go to the ECB. What happens then?
Kendra Naidoo: [00:41:06] So the ECB will render a decision within one day of the end of the hearing and they will either confirm or revoke the finding of incapacity.
Bruce Fage: [00:41:19] And is there any step after that? Like what if the patient disagrees with the finding of the ECB?
Kendra Naidoo: [00:41:25] So any party to a hearing before the ECB and it could be the health care practitioner if the finding was overturned or it could be the the person who's subject to the finding. If the finding was upheld, either party has a right to appeal the decision to the Superior Court of Justice, which is the next level of court, and then the Superior Court would review the decision and decide whether it was reasonable. If the person does file an appeal of the ECB decision, then that new treatment cannot be started until the appeal has run its course and the court has rendered a decision.
Bruce Fage: [00:42:04] And I imagine that can take a while.
Kendra Naidoo: [00:42:06] It can. It varies by region, but it's not a very fast process wherever you are in the province.
Alex Raben: [00:42:15] And let's so let's say that you have a patient and they've exercised their right to go to the ECB. You've you've put forth the treatment of anti-psychotic and now the ECB has found that actually they are capable of making a decision around that and but but they're involuntary. So now what do you do in that scenario? Because they're you're holding them in hospital, presumably to treat them. But now your hands are kind of tied in a way.
Kendra Naidoo: [00:42:48] That's a very challenging clinical scenario. And I'm glad you raised that point because it's it's an important aspect of the fact that, as we talked about at the beginning, hospitalisation is governed under the Mental Health Act, but treatment is governed by the Health Care Consent Act, which means you can have people who are incapable of consenting to treatment but don't meet the box or Box B criteria and so cannot be detained in hospital. Conversely, you can have someone who is meeting the Box A criteria and so involuntarily detained but is capable and so refusing treatment. At that point it becomes a case of clinical judgement. If you cannot treat the person, what is the purpose of the hospitalisation and what is the goal of the hospitalisation? Maybe because the person is capable, maybe you can work with them to bring them around to consenting to the particular treatment. Maybe you can look at what is it about the treatment that they are objecting to? Is it the side effects? Is it that they don't want a needle and would prefer to take oral? Is there some kind of compromise that you can arrive at? And if they are adamantly, capably refusing that treatment, then you would have to consider what is the goal of this admission and should it be continued. And I would certainly encourage all medical learners, obviously, to speak to their staff and consult with the administration of the hospital on those kinds of decisions.
Alex Raben: [00:44:22] Right.
Bruce Fage: [00:44:22] Yeah. Thanks, Kendra. I think I think that's a really great point in that the loss is perhaps a bit more black and white than the clinical reality in any capacity assessment needs. If you're a psychiatrist or a resident or a medical student who's working with a patient who's admitted to the hospital and voluntarily and you're trying to do a capacity assessment, you really need to do a thorough assessment and understand the person's values and their perspective and their rationale for making whatever decision that they're choosing to make and really trying to help support them to make the best possible choice for them. So it is important to look at all of those things that you mentioned and not simply take away somebody's right to to decide for themselves if you don't like the choice that they're making.
Kendra Naidoo: [00:45:11] Absolutely.
Alex Raben: [00:45:13] So, Kendra, sorry, you were mentioning that that was the way of making a finding of incapacity if you're in a hospital. But what happens if you're in an outpatient rotation or you're seeing someone outside of hospital?
Kendra Naidoo: [00:45:25] So if the finding of incapacity is made in a non-schedule one hospital or in the community or it relates to non-psychiatric treatment, then there is no form 33. The physician documents their assessment in the finding and then the physician has to deliver rights advice. So that involves informing the patient of the finding of incapacity, informing them that that means a substitute decision maker will be making the decision for them, informing them that if they disagree with the identity of their substitute decision maker, they have the right to apply to the ECB for a different substitute decision maker and informing them that if they disagree with the finding of incapacity, they have a right to apply to the ECB for that. If the person indicates that they want to make either of those applications to the ECB, the physician then has an obligation to assist the person in making that application. How far you have to go to assist is really going to depend on the individual person. If they're able to do it themselves. It may involve just pointing them to the ECB website or helping them print off the form. But if they have more functional impairments or the physician believes they wouldn't be able to do it themselves, it may be all the way down the spectrum of filling out the form with them and faxing it off to the ECB, and that delivery of rights advice should be documented. And the person doesn't see a rights advisor from the PPO.
Alex Raben: [00:46:54] Right. And on the topic of helping the patient get rights advice, I've also seen like calling up the rights advisor and like being there with the phone and that kind of thing as well.
Kendra Naidoo: [00:47:07] Absolutely. If the person is not in a psychiatric facility, the rights advisors won't come and see them. So that's where the physician may call the ECB with them or help them fill out the form and fax it. But if they're in a psychiatric facility, any time a patient wants to speak with an advisor or have access to their legal rights or wants to speak to a lawyer, if they don't have one, then helping as much as you can to facilitate their access to the rights adviser is the best thing to do.
Alex Raben: [00:47:34] Right. So the big differences are no form 33 and you as a physician or as a health care team, have to help facilitate the rights advice.
Kendra Naidoo: [00:47:45] Right? You deliver the rights advice.
Alex Raben: [00:47:47] Okay. You you actually deliver it? Yeah. I have a question around documentation, because often, I mean, it's always important to document it a medical legally safe way. And in particular when things go to the ECB. Your notes are often used as I don't know if evidence is the right term, but it's used it's reviewed in the ECB. So how should residents and medical students document capacity and also like involuntary making someone involuntary?
Kendra Naidoo: [00:48:22] Often and thoroughly. I think, you know, the best thing you can do to set yourself up for the ECB is to be really familiar with these legal tests. And when you're doing these assessments, document them in relation to the legal tests. So when we're talking about involuntary detention, being very thoughtful in your documentation about which on which criteria am I relying, is it the box or the box be criteria? Your documentation should reflect that. It should reflect are we relying on serious bodily harm to others, serious bodily harm to self serious physical impairments? Here is mental deterioration. And what are the factors or the indicators or the evidence that have led me to that decision? When documenting a capacity assessment, it's very important to document all of the information you have given to the patient because otherwise you're exposing yourself to an allegation that you cannot possibly have assessed their ability to understand and appreciate information if it hasn't been given to them. So all of the information that you've given to the patient and their responses to that information. Right. Another tip is to write your documentation using the language of the legal tests. So the test for involuntary detention requires a likelihood that the mental disorder is likely to result in one of the harms. So language likely is really important. Avoiding words like might or could or may because the legal threshold is a likelihood. Similarly, when you're doing your documentation of a capacity assessment, avoid terms like patient disagrees. They have schizophrenia because of course they don't have to agree that they have schizophrenia. So documenting in accordance with you've you've informed them of their symptoms. If you've expressed to them the manifestations of their illness, remember to document it in terms of a mental condition and not do what I just did, which is refer to it as a mental illness or a mental disorder mental condition. And remember, that key is ability to understand and ability to appreciate, not actual understanding or actual appreciation.
Alex Raben: [00:50:39] Right? That makes a lot of sense. And then springboarding from that. Still on the topic of documentation, another thing that comes up for medical learners and it's happened to me the other night, I was on college campuses messing up, filling out a Form One because it's kind of a it's a long ish form and there's lots of tick boxes and things that can be forgotten. Why are we so finicky about that and what happens if we do mess up?
Kendra Naidoo: [00:51:12] So it's a three-page form, but in the context of evenings, I know in the emergency department things are very busy. There's a lot of boxes and a lot of lines to sign and things can go wrong. I think we are really invested and certainly the consent and capacity board is really invested in seeing those forms being filled out, right, Because the powers that the legislation confers on physicians to impact people's rights is so profound, right? There is no other area in our law or in our society outside of the criminal law where an individual person can sign a piece of paper and have somebody detained. So the the information on the form is critical for the patient to understand what is happening to them. It's critical for an evaluation of whether all of the right steps were met. And so it's very important that those films be filled out correctly. That said, things happen. People, you know, counting hours is sometimes complicated. People make typographical errors and things happen. If there's an error on the Form One, the best thing to do is to fill out a new form one deliver a new form 42 to the patient and try to be mindful of not extending the length of the detention because we made an error. So if a Form One is filled out and the error is not discovered until 48 hours later, we fill out a new form one at that 48-hour mark rather than counting. From 72 hours from that 48 hours, which results in a five-day detention. Being mindful that we should be still making that decision about discharge, admit voluntary, admit involuntary within the original 72 hours to be respectful of the rights of the patient and not unnecessarily delay their detention and their access to the legal rights that they have.
Alex Raben: [00:53:15] So you would backdate it to when the form was originally filled out. Would that be the way of handling that?
Kendra Naidoo: [00:53:23] Well, when you when you sign the form, the date and time of your signature would be the date and time that you signed the form. I see. But you could write on the there's a portion on the form that says date and time detention commenced. You could write 48 hours ago. Right. And then I would also recommend just putting a little notation that says form redone because of typographical error, just so that it doesn't look like you didn't sign the form until 48 hours after the detention commence. Just so anyone looking at the face of the form can sort of identify what happened and why the dates are a little skewed.
Alex Raben: [00:54:00] That makes sense. And just for our listeners, because these forms can be a bit tricky, especially at first to get used to filling out. And it's hard for us to describe all the various boxes in an audio format. We will link to a visual walkthrough in our show notes. This was done by a psychiatrist here at IMH, Dr. Patricia CAVANAUGH, and I think it will help you guys to learn how to fill them out.
Bruce Fage: [00:54:27] So, Kendra, thank you so much for taking the time to meet with us and share your knowledge. Involuntary hospitalisation and capacity assessment can be very challenging aspects of providing psychiatric care. I think certainly for patients and their families, but also the mental health care teams that support them. I think it's extremely important that patients receive due process and that their legal rights are respected and I'm glad that you are around to help us navigate that process. Thanks so much for coming in.
Kendra Naidoo: [00:54:53] Thanks for having me.
Bruce Fage: [00:54:54] And thanks to all of our listeners. We'll see you next time on PsychEd.
Alex Raben: [00:54:57] Thanks, guys. PsychEd is a resident-driven initiative led by residents at the University of Toronto. We are affiliated with the Department of Psychiatry at the University of Toronto, as well as the Canadian Psychiatric Association. The views endorsed in this episode are not intended to represent the views of either organization. This episode was produced by Bruce Phage and hosted by Bruce Fazio and Alex Rabin. Audio editing was done by Alex Rabin. Our theme song is Working Solutions by Olive Music. A special thanks to Kendra Naidoo for serving as our expert on this episode. We look forward to your comments and feedback and you can contact us at Info@psychedpodcast.com or visit us at Psycedpodcast.org. Thank you so much for listening!