Consenting to Admission to a Care Facility - Revision history

Charmaine Spencer: /* References */

2016-01-12T16:47:54Z

References

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	==References==		==References==
	#RCR, s. 47 (2)		#RCR, s. 47 (2)
	#Mental Health Act [RSBC 1996] c. 288.		#Mental Health Act [RSBC 1996] c. 288. Online: http://www.bclaws.ca/civix/document/id/complete/statreg/96288_01 [Last accessed January 9, 2016]
	#See for example : McCorkell v. Director of Riverview Hospital Review Panel (1993), 104 D.L.R. (4th) 391 (B.C.S.C.).		#See for example : McCorkell v. Director of Riverview Hospital Review Panel (1993), 104 D.L.R. (4th) 391 (B.C.S.C.).
	#Ombuds, Best of Care, Finding 101.		#Ombuds, Best of Care, Finding 101.

Nate Russell: /* Use of the Mental Health Act to Admit Older Adults to Residential Care */

2014-07-24T20:04:11Z

Use of the Mental Health Act to Admit Older Adults to Residential Care

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			==References==
			#RCR, s. 47 (2)
			#Mental Health Act [RSBC 1996] c. 288.
			#See for example : McCorkell v. Director of Riverview Hospital Review Panel (1993), 104 D.L.R. (4th) 391 (B.C.S.C.).
			#Ombuds, Best of Care, Finding 101.
			#See for example, BC. Civil Liberties Association. “Suggested changes to BC’s Mental Health System regarding involuntary admission and treatment in non-criminal cases” Adopted by the BCCLA, 2011,


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Nate Russell at 20:02, 24 July 2014

2014-07-24T20:02:13Z

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	* the design of the community care facility and its physical resources		* the design of the community care facility and its physical resources
	* the health, safety and dignity of other persons in care		* the health, safety and dignity of other persons in care
	* any criteria set by, or advice or information from, a funding program ([[~~Chapter Three Legal Issues in Residential Care~~ References\|45]])		* any criteria set by, or advice or information from, a funding program ([[{{PAGENAME}}#References\|1]])

	==Assessing Capacity for Admission==		==Assessing Capacity for Admission==
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	==Use of the Mental Health Act to Admit Older Adults to Residential Care==		==Use of the Mental Health Act to Admit Older Adults to Residential Care==

	The Mental Health Act ([[~~Chapter Three Legal Issues in Residential Care~~ References\|46]]) is also sometimes used to admit cognitively impaired (and sometimes non-impaired older adults) into residential care facilities if they cannot consent or will not consent to go.		The Mental Health Act ([[{{PAGENAME}}#References\|2]]) is also sometimes used to admit cognitively impaired (and sometimes non-impaired older adults) into residential care facilities if they cannot consent or will not consent to go.
	In some instances these involuntary detention cases come about as a result of a person having an unaddressed health problem, an alcohol or other substance use problem, or the person is living in perceived unsafe conditions, including suspected abuse or neglect by others. In a typical situation, family expresses concern, and they then contact Mental Health or police to bring the person to the hospital. In other situations, the person may be living alone with few community supports. She or he has not selected anyone as substitute decisionmaker (that is, has not done advance planning) and refuses to go to a facility.		In some instances these involuntary detention cases come about as a result of a person having an unaddressed health problem, an alcohol or other substance use problem, or the person is living in perceived unsafe conditions, including suspected abuse or neglect by others. In a typical situation, family expresses concern, and they then contact Mental Health or police to bring the person to the hospital. In other situations, the person may be living alone with few community supports. She or he has not selected anyone as substitute decisionmaker (that is, has not done advance planning) and refuses to go to a facility.

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	A person can challenge the involuntary placement (detention) through a Mental Health Review Board hearing (s. 25). In the alternative, they can apply directly to the Supreme Court to challenge their involuntary detention (s.33). Both remedies are rarely used for older adults, and these remedies exist more in theory than in practice. The Best of Care report questioned the fairness of involuntarily detaining people under the Mental Health Act, and then charging them residential care facility fees for the “privilege” of being involuntarily detained.		A person can challenge the involuntary placement (detention) through a Mental Health Review Board hearing (s. 25). In the alternative, they can apply directly to the Supreme Court to challenge their involuntary detention (s.33). Both remedies are rarely used for older adults, and these remedies exist more in theory than in practice. The Best of Care report questioned the fairness of involuntarily detaining people under the Mental Health Act, and then charging them residential care facility fees for the “privilege” of being involuntarily detained.

	The more pressing legal issue, however, may be whether or not the Mental Health Act is an appropriate mechanism when someone has a concern about an older adult’s living situation. In case law, the Mental Health Act has not been considered a violation of the person’s Charter (section 7 and 9) rights, largely because of the two physician certification process. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|47]]) However if the certificates are signed based on limited if any information and the person is effectively “forced” into care, there is an arguable legal case that the involuntary detention violates the person’s Charter rights.		The more pressing legal issue, however, may be whether or not the Mental Health Act is an appropriate mechanism when someone has a concern about an older adult’s living situation. In case law, the Mental Health Act has not been considered a violation of the person’s Charter (section 7 and 9) rights, largely because of the two physician certification process. ([[{{PAGENAME}}#References\|3]]) However if the certificates are signed based on limited if any information and the person is effectively “forced” into care, there is an arguable legal case that the involuntary detention violates the person’s Charter rights.

	The British Columbia Ombudsperson specifically found that the health authorities’ use of sections 22 and 37 of the Mental Health Act to involuntarily admit seniors to mental health facilities and then transfer them to residential care was being done without clear provincial policy to ensure that the Mental Health Act is used as a last resort. This omission meant the Ministry was not acting in a way that assured older adults were not unnecessarily deprived of their civil liberties. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|48]]) Advocacy groups have noted that the involuntary detention provisions of the Mental Health Act endure long past the admission process, and have long lasting repercussions for the individual in residential care. For example, it effectively strips individuals of the health care rights that they would otherwise enjoy. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|49]])		The British Columbia Ombudsperson specifically found that the health authorities’ use of sections 22 and 37 of the Mental Health Act to involuntarily admit seniors to mental health facilities and then transfer them to residential care was being done without clear provincial policy to ensure that the Mental Health Act is used as a last resort. This omission meant the Ministry was not acting in a way that assured older adults were not unnecessarily deprived of their civil liberties. ([[{{PAGENAME}}#References\|4]]) Advocacy groups have noted that the involuntary detention provisions of the Mental Health Act endure long past the admission process, and have long lasting repercussions for the individual in residential care. For example, it effectively strips individuals of the health care rights that they would otherwise enjoy. ([[{{PAGENAME}}#References\|5]])

Nate Russell at 23:03, 23 July 2014

2014-07-23T23:03:23Z

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	{{Legal Issues in Residential Care: An Advocate's Manual TOC}}		{{Legal Issues in Residential Care: An Advocate's Manual TOC\|expanded = chapter3}}

	Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. The individuals themselves should be the ones who consent to their admission to a residential care facility unless their capacity to make this decision is unclear. In these cases, the individual’s capacity to make that particular decision should be assessed. This is not necessarily a global assessment of mental incapacity, as the person's mental capacity is dependent on the particular type of decision to be made.		Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. The individuals themselves should be the ones who consent to their admission to a residential care facility unless their capacity to make this decision is unclear. In these cases, the individual’s capacity to make that particular decision should be assessed. This is not necessarily a global assessment of mental incapacity, as the person's mental capacity is dependent on the particular type of decision to be made.

Admin at 15:48, 18 July 2014

2014-07-18T15:48:45Z

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	~~{{DEMOWARNING}}~~
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Marisa Chandler: /* Use of the Mental Health Act to Admit Older Adults to Residential Care */

2014-07-08T18:22:49Z

Use of the Mental Health Act to Admit Older Adults to Residential Care

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	{\| class="wikitable"		{\| class="wikitable"
	\|- valign=top		\|- valign=top
	\| width="100%" \| '''Special Note'''		\| width="100%" \| '''Special Note: Rights Information is required on 2nd Certificate of protection'''

	\|- valign=top		\|- valign=top

Marisa Chandler: /* Use of the Mental Health Act to Admit Older Adults to Residential Care */

2014-07-08T18:21:35Z

Use of the Mental Health Act to Admit Older Adults to Residential Care

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	\| width="100%" \| '''Special Note'''		\| width="100%" \| '''Special Note'''

	At the point when the second certificate of protection is signed, the detained older person is supposed to receive “rights information”, including being shown the information by which they were admitted in the first place. Staff is expected to facilitate the rights advice, identifying options, and repeat the information as necessary, again identifying reasons for detention.		\|- valign=top
			\| width="100%" \| At the point when the second certificate of protection is signed, the detained older person is supposed to receive “rights information”, including being shown the information by which they were admitted in the first place. Staff is expected to facilitate the rights advice, identifying options, and repeat the information as necessary, again identifying reasons for detention.

	\|}		\|}

Marisa Chandler: /* Mental Health Act, [RSBC 1996] c.288 s.1 */

2014-07-08T18:20:42Z

Mental Health Act, [RSBC 1996] c.288 s.1

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	The older adult is first taken to a “designated mental health facility” under s.22 of the Mental Health Act . The term “designated mental health facility” in practical terms refers to most public hospitals. The person can be held there involuntarily for 48 hours on a medical certificate signed by one doctor which declares that the individual is a “person with a mental disorder” and in need of protection. This becomes the basis of the older adult’s involuntary detention. Within 48 hours, a second certificate continuing the involuntary detention must be signed or the person must be released.		The older adult is first taken to a “designated mental health facility” under s.22 of the Mental Health Act . The term “designated mental health facility” in practical terms refers to most public hospitals. The person can be held there involuntarily for 48 hours on a medical certificate signed by one doctor which declares that the individual is a “person with a mental disorder” and in need of protection. This becomes the basis of the older adult’s involuntary detention. Within 48 hours, a second certificate continuing the involuntary detention must be signed or the person must be released.

	~~===Mental Health Act, [RSBC 1996] c.288 s.1===~~


	{\| class="wikitable"		{\| class="wikitable"
			\|- valign=top
			\| width="100%" \| ''' Mental Health Act, [RSBC 1996] c.288 s.1 '''

	\|- valign=top		\|- valign=top
	\| width="100%" \| '''"person with a mental disorder" means a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability		\| width="100%" \| '''"person with a mental disorder" means a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability

Marisa Chandler: /* Part 3 - Health Care (Consent) and Care Facility (Admission) Act - The process that is currently not there */

2014-07-08T18:19:46Z

Part 3 - Health Care (Consent) and Care Facility (Admission) Act - The process that is currently not there

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	A person is presumed to be capable with respect to admission to a care facility unless “reasonable grounds” to suspect incapacity exists. Incapacity may be suspected on the basis of direct observation of the person or from information obtained from family or other caregivers.		A person is presumed to be capable with respect to admission to a care facility unless “reasonable grounds” to suspect incapacity exists. Incapacity may be suspected on the basis of direct observation of the person or from information obtained from family or other caregivers.

	===Part 3 - Health Care (Consent) and Care Facility (Admission) Act - The process that is currently not there~~===~~		{\| class="wikitable"
			\|- valign=top
			\| width="100%" \| ''' Part 3 - Health Care (Consent) and Care Facility (Admission) Act - The process that is currently not there '''

	~~{\| class="wikitable"~~
	\|- valign=top		\|- valign=top
	\| width="100%" \| Part 3 of this Act created a process for appointing a substitute decision-maker when a person had been assessed by a health care provider as incapable of consenting to admission to a care facility and a substitute decision-maker was not already in place.		\| width="100%" \| Part 3 of this Act created a process for appointing a substitute decision-maker when a person had been assessed by a health care provider as incapable of consenting to admission to a care facility and a substitute decision-maker was not already in place.

Marisa Chandler: /* Special Note */

2014-07-08T17:46:21Z

Special Note

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	The British Columbia Ombudsperson specifically found that the health authorities’ use of sections 22 and 37 of the Mental Health Act to involuntarily admit seniors to mental health facilities and then transfer them to residential care was being done without clear provincial policy to ensure that the Mental Health Act is used as a last resort. This omission meant the Ministry was not acting in a way that assured older adults were not unnecessarily deprived of their civil liberties. ([[Chapter Three Legal Issues in Residential Care References\|48]]) Advocacy groups have noted that the involuntary detention provisions of the Mental Health Act endure long past the admission process, and have long lasting repercussions for the individual in residential care. For example, it effectively strips individuals of the health care rights that they would otherwise enjoy. ([[Chapter Three Legal Issues in Residential Care References\|49]])		The British Columbia Ombudsperson specifically found that the health authorities’ use of sections 22 and 37 of the Mental Health Act to involuntarily admit seniors to mental health facilities and then transfer them to residential care was being done without clear provincial policy to ensure that the Mental Health Act is used as a last resort. This omission meant the Ministry was not acting in a way that assured older adults were not unnecessarily deprived of their civil liberties. ([[Chapter Three Legal Issues in Residential Care References\|48]]) Advocacy groups have noted that the involuntary detention provisions of the Mental Health Act endure long past the admission process, and have long lasting repercussions for the individual in residential care. For example, it effectively strips individuals of the health care rights that they would otherwise enjoy. ([[Chapter Three Legal Issues in Residential Care References\|49]])

	====Special Note~~====~~
			{\| class="wikitable"
			\|- valign=top
			\| width="100%" \| '''Special Note'''

	At the point when the second certificate of protection is signed, the detained older person is supposed to receive “rights information”, including being shown the information by which they were admitted in the first place. Staff is expected to facilitate the rights advice, identifying options, and repeat the information as necessary, again identifying reasons for detention.		At the point when the second certificate of protection is signed, the detained older person is supposed to receive “rights information”, including being shown the information by which they were admitted in the first place. Staff is expected to facilitate the rights advice, identifying options, and repeat the information as necessary, again identifying reasons for detention.

			\|}

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