The Consent And Capacity Board's Jurisdiction To Make Section 41.1 Orders

Background

Prior to December 2015, pursuant to the Mental Health Act (MHA), an involuntary patient could be detained indefinitely by renewing the Certificate of Renewal (Form 4) and the Consent and Capacity Board (CCB or the Board) had only the power to confirm or rescind this form. This was dependent on whether the specific criteria for the involuntary admission were met at the time of the hearing to review the involuntary admission. The Board also had a limited power to transfer an involunary patient to another psychiatric facility in certain circumstances.

Following the Ontario Court of Appeal's decision in P.S. v. Ontario, 2014 ONCA 900, the MHA was amended to replace the fourth and subsequent Certificate of Renewal with a Certificate of Continuation (Form 4A), to provide mandatory reviews by the Board and to expand the Board's jurisdiction to make a variety of orders for long term involuntary detainees. By the time patients are subject to a Form 4A Certificate of Continuation, they have been detained involuntarily for more than six months.

Now, pursuant to section 41.1 of the MHA, when the Board makes an order confirming a patient's Certificate of Continuation, the Board can make any of the following orders on its own motion or in response to an application (Form 51) from the patient or a person on the patient's behalf:

Transfer the patient to another psychiatric facility, subject to subsections 41.1(10), (11) and (12), but only if the patient does not object. Place the patient on a leave of absence for a designated period on the advice of a physician, subject to subsection 41.1(13). Direct the officer in charge of the psychiatric facility to provide the patient with a different security level or different privileges within or outside the psychiatric facility. Direct the officer in charge of the psychiatric facility to allow the patient to be provided with supervised or unsupervised access to the community. Direct the officer in charge of the psychiatric facility to provide the patient with vocational, interpretation or rehabilitative services. Can section 41.1 orders be sought without a Certificate of Continuation?

Recently, a motion was brought by a patient (SR) seeking, inter alia, that the Board make orders with respect to his "conditions of detention" when considering his Application to Review his involuntary status. The Notice of Motion specifically requested the Board to order, pursuant to sections 41.1(1) and (2): one-on-one...