At a time like this, when our city witnesses the grave fallout of mental illness, people look for answers and explanations. Below is an overview of mental health law to help explain the system, as imperfect as it is.
The Basic Premise
Mental health law is based on the premise that everyone is capable to make their own health treatment decisions. There is no age limit as to when a person can assert their own choice about treatment, thus even children may be considered “mature minors” for this purpose.
The Test for Capacity
Capacity for treatment is determined at the time the treatment is offered. The health professional offering the treatment is the one who decides if the patient is capable, not a patient’s parents, spouse or substitute decision maker. A person is capable to make a treatment decision if he or she is able to understand the information that is relevant to the decision and is able to appreciate the reasonably foreseeable consequences of a decision or lack thereof. As you can see, the test does not ask if the person made a “good” decision or one that the doctor agrees with.
The law allows for a certain degree of “fluidity” with respect to capacity for treatment. Thus, a person may be capable to make decisions about one type of treatment but not another. Or a person may lack capacity at one time but regain it sometime later. The law allows the patient to change his or her mind about a treatment as long as the patient is capable. There are situations where a person’s substitute decision-maker consents to treatment, gets better, regains capacity and discontinues that treatment. As long as a person can satisfy the legal test for capacity to make treatment decisions, that person can refuse further treatment even if family members see what they consider a marked improvement with treatment.
Treatment and Detention in Psychiatric Facilities
A typical scenario is one where a patient arrives at a hospital ER after being convinced by family that things have spiralled out of control. Sometimes, families feel they must force their loved one to seek care. In that case, they may obtain an order from a justice of the peace to have police apprehend the person and bring him or her to a psychiatric facility for evaluation. The affidavit must be based on certain information, such as that the person has threatened to seriously harm oneself or others.
Upon examination, if a doctor learns that the person has threatened or tried to seriously harm oneself or others, believes the person is suffering from a mental illness likely to result in serious bodily harm of oneself or others or serious physical impairment, the doctor must refer the person for psychiatric evaluation. Or, if the person has been treated for a mental illness in the past and has improved but is now showing worsening symptoms of the same illness likely to result in serious bodily harm, or to suffer serious mental or physical deterioration, and the doctor believes the person is incapable to make treatment decisions, the doctor must obtain the consent of the person’s substitute decision-maker and refer the person for psychiatric assessment. All of this means that the patient is usually kept in hospital for 72 hours for observation and assessment.
If the doctor finds that treatment is needed, and the person disagrees, he or she can be admitted as involuntary patient. This is usually called being “formed,” based on the different forms that physicians have to complete to trigger involuntary detention in a psychiatric hospital. The initial period of detention lasts two weeks and the forms can be renewed for a further one month, two months, three months respectively under a certificate of renewal, and then for three months under a certificate of continuation. A patient has various appeal rights to the Consent and Capacity Board regarding capacity to treatment and involuntary detention.
When a patient is deemed well enough to re-engage in life outside the psychiatric facility, the treating physician may propose a community treatment order. The purpose is to stop the “revolving door” pattern of hospital admission, stabilization, release and re-admission upon failing to continue with treatment. The orders are designed with a treatment plan, which allows for continued contact between the patient and the treating doctor or a community doctor. Notably, the patient formally undertakes to follow the treatment plan and families are often involved. If a patient wishes to withdraw consent to the order or fails to comply with the terms of the order, the physician can issue an order to have police bring the patient for an examination. If found to be incapable to treatment and requiring hospitalization, the patient may be “formed” again.
Mental illness is incredibly difficult for the sufferer and his or her family. It is critical for family to remember to help themselves, as caregiver burnout and compassion fatigue is very real. Quite often the family feels they know what is best for their loved one because they have witnessed the ups and downs of various phases and medication effects. Our legal system is based on the fundamental right to dignity and liberty and thus, the mental health legal system attempts to preserve a person’s independence and decision-making power as much as possible. Certainly, this can be frustrating for families. When terrible things happen, it’s hard not to condemn the system. And yet, it is encouraging that the vast majority of people live quite successfully with mental illness by learning to manage it effectively over time.