Legal and Ethical Issues in MH

Question 1

Consent

Answer 1

a meaningful agreement in which pt has meaningful control over their own lives

Question 2

Health Care Consent Act (HCCA)

Answer 2

consent to treatment, same for all patients, all treatment and all settings
forbids any non-emergency treatment without informed consent

no conset = failure to obey = professional misconduct

Question 3

Capacity to Consent

Answer 3

capacity is not dichotomous
depends on the treatment
capacity applies to one treatment in one setting at one time

Question 4

Return of capacity

Answer 4

After consent to treatment is given or refused on a person’s behalf, once person becomes cable, the patient’s own decision governs

Question 5

The Elements of Consent

Answer 5

1. relate to the treatment
2. be informed
3. be voluntary
4. not be obtained through misrepresentation or fraud

Question 6

3 Forms of Treatment

Answer 6

1. Discreet treatment (i.e. an injection)
2. Course of treatment (i.e. course of medication)
3. Plan of treatment (treatment of more than one modalities, or by more than one practitioner)

Question 7

Informed Consent should have:

Answer 7

1. nature of the treatment
2. expected benefits
3. material risks and side effects
4. alternative courses of action
5. likely consequence of not having treatment

AND answers to questions they have about the above

Question 8

Evaluating Capacity to Consent

Answer 8

• requires careful documentation of the capacity evaluation process
• record must show the process followed and the information relied upon
• objectivity
• best interest of the patient must not play any role

Question 9

Capacity to Consent is

Answer 9

A person is capable to consent if:

a. able to understand the information that is relevant to making a decision about treatment
b. able to appreciate the reasonably foreseeable consequences of a decision or lack of decision

the law requires that you have the ABILITY to understand
“could you get it”, not “do you get it”

Question 10

Presumption of Capacity

Answer 10

A patient is presumed to be capable, no age limit to this presumption

unless you have reasonable grounds to believe that the someone is incapable

Question 11

The WHY test

Answer 11

ability to understand and appreciate that:

a. there is a problem
b. what you are experiencing or feeling or suffering from is related to a disease

*insight

Question 12

The WHAT test

Answer 12

ability to understand what the proposed treatment is

Question 13

The WHAT IF test

Answer 13

ability to appreciate the consequences of a decision or lack of a decision

a. what the options are
b. what is likely to happen if you agree or disagree to treatment

Question 14

Review of Incapacity

Section 17 of the HCCA

Answer 14

A patient who has been found incapable of consenting to treatment may apply to Consent and Capacity Board for a review

• hearings held within one week
• treatment may not commence if patient has applied or intends to apply to CCB for a review unless SDM is court-appointed
• may continue treatment already started

Question 15

Commencement of Treatment

Answer 15

• no application is made within 48 hours of being informed of the intention to apply
• the application for review is withdrawn
• Board renders a decision and none of the parties inform of an intent to appeal
• no appeal is filed within 7 days of CCB decision
• appeal from the Board has finally disposed of

Question 16

Substitute Decision Maker

Section 20 of HCCA

Answer 16

highest person on a ranked list who qualifies for the job

a person qualifies if:

a. available
b. willing
c. mentally capable
d. at least 16 years old
e. not prohibited by court order or separation agreement to consent on patient’s behalf

Question 17

SDM Ranking

Answer 17

1. court appointed guardian
2. attorney for personal care
3. representative appointed by CCB
4. spouse, common law spouse or partner
5. parents and children
6. brothers and sisters
7. any other relative by blood, marriage or adoption
8. Public Guardian and Trustee (SDM unit)

• just because someone is “power of attorney”, doesn’t mean they are the person!

Question 18

Rules for SDM when giving consent

Answer 18

Rule 1: prior capable wishes must be followed

Rule 2: sans prior capable wishes, a “best interest” test applies
Each option must be considered, taking into account
- patient’s values and beliefs
- patient’s non-binding wishes
- treatment likely to improve condition, prevent deterioration, reduce extent or rate of deterioration, expected benefit outweighs the risk, whether less intrusive treatment would be just as beneficial

Question 19

Emergencies

Answer 19

if person for whom treatment is proposed is apparently experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly

Question 20

Emergency Treatment without Consent (Incapable person)

Answer 20

treatment may be administered without consent if:

a. there is an emergency
b. the delayed required to obtain consent will prolong patient’s apparent suffering and will put patient at risk of sustaining serious bodily harm

treatment may continue until SDM is found or until patient regains capacity

Question 21

Emergency Treatment without Consent (Capable person)

Answer 21

treatment may be administered without consent if:

a. there is an emergency
b. required communication cannot take place due to language barrier or disability
c. reasonable steps taken to find practical means of enabling communication, without success
d. delay required will prolong suffering or put patient at risk
e. there is no reason to believe that the person doesn’t want treatment

Question 22

Emergency Treatment without Consent

Treatment despite refusal

Answer 22

treatment may be administered to incapable person despite SDM’s refusal if:

a. there is an emergency
b. SDM did not comply with section 21 of HCCA

Question 23

Admission for Emergency Treatment

Answer 23

the right to administer emergency treatment without consent includes the right to admit to hospital for the purpose of treatment unless

a. person objects
b. primary purpose of admission is for treatment of MI

Question 24

Mental Health Law

Answer 24

• allows to us apprehend and detain citizens who are not accused of any crime
• a balance between the need for safety and treatment and the right of every citizen to liberty, autonomy and self-determination

Question 25

Form 1: Application for Psychiatric Assessment

Answer 25

• completed by any licensed physician
• physician must have examined the person within 7 days
• conclusion may be based on any combination of personal observations or other info
• form is valid for 7 days, gives anyone authority to take the person into custody and transfer to psychiatric facility where they may be detained for 72 hours
• usually working with a police authority

Box A: risk-based provisions. reasonable cause to believe that past, present or future possibility of harm to self or others, inability to care for self

Box B: not first onset, hx of illness of ongoing or recurring nature

Question 26

Need for Treatment Grounds

Answer 26

1. Previous treatment test
   has received prior tx for MI ongoing in nature
2. Clinical improvement test
   has shown clinical improvement as a result of treatment
3. Similar disorder test
   person is suffering from the same MI for which they previously received tx
4. Future harm test
   person’s hx of MI is likely to cause harm to self or others, deterioration or physical impairment
5. Incapacity test
   person is incapable within the meaning of HCCA of consenting to treatment, consent from SDM has been obtained

Question 27

Form 42: Notice to Person of APA

Answer 27

• the physician who signed form 1 must provide person with form 42
• failure to do so is an offense, making detention illegal

Question 28

The 72 Hour Period

Answer 28

• person must be either discharged, admitted as voluntary, involuntary or informal before the 72 hour point is reached

Question 29

Form 2: Order for Examination

Answer 29

• anyone may request a Form 2 from the Justice of the Peace
• grounds are the same as a Form 1
• police may act without paper if matter is too urgent to wait for a Justice of the Peace, in which they may ONLY use box A

Question 30

Form 3: Certificate of Involuntary Admission

Answer 30

• used to detain a person in hospital involuntarily for up to 14 days
• must be signed by a different physician than Form 1 (second opinion rule)
• must be preceded by an examination

Box A: The Dangerousness Grounds
a. pt is suffering from MI that will result in
- harm to self
- harm to others
- physical impairment
if not in custody of a psychiatric facility
b. not suitable for admission as an informal or voluntary patient

Box B: The Need for Treatment Grounds

a. previously received tx of an ongoing MI that if not treated will result in
- harm to self
- harm to others
- physical impairment
b. has shown clinical improvement as a result of Tx
c. suffering from same MI
d. given the hx of MI will likely ^
e. found incapable of consenting and SDM given consent
f. not suitable for admission as an informal or voluntary patient

Question 31

Form 4: Certificate of Renewal

Answer 31

• may be signed with regards to a patient already on Form 3 or Form 4
• new form must be signed before the previous one
• criteria and procedure is identical for Form 3
• first Form 4 is valid for 1 month
• second Form 4 is valid for 2 months
• third and successive forms are valid for 3 months

Question 32

Leaves of Absence

Answer 32

• Office in Charge has authority to place a patient on a leave of absence of not more than 3 months
• may also be placed by physician if intention is that the pt is to return to facility
• not to be used for anyone detained outside of the MHA

Question 33

Form 10: Memorandum of Transfer

Answer 33

on advice of the attending physician and with agreement of the receiving facility to transfer patient between schedule 1 facility

Question 34

Form 11: Transfer to non-schedule 1

Answer 34

advised by attending to transfer patient who requires hospital treatment not offered in psychiatric facility
must be returned at the conclusion