The role of the Rights Adviser is established under the
Mental Health Act and its regulations. Section 1(1) of the
Mental Health Act defines Rights Adviser as
" a person, or a member of a category of persons, qualified to
perform the functions of a rights adviser under this Act and designated by a
psychiatric facility, the Minister or by the regulations to perform those
functions, but does not include, (a) a person involved in the direct clinical
care of the person to whom rights advice is to be given, or (b) a person
providing treatment or care and supervision under a community treatment plan."
Rights advice is a process by which patients in psychiatric facilities are
informed of their rights when a physician changes their legal status. Rights
advice is mandatory in eight situations:
- a physician's decision that the patient's status must change to involuntary;
- a physician's decision that the patient's involuntary status must continue;
- a physician's decision that the patient is incapable to manage his/her
property, including finances;
- a physician's decision that the patient's incapacity to manage his/her
property must continue;
- a physician's decision that the patient is incapable to consent to treatment
for a mental disorder in circumstances set out in the Regulations under the Act;
- a determination that the patient is incapable of consenting to the
collection, use or disclosure of personal health information in the
circumstances set out in the Regulations under the Act;
- when a twelve to fifteen year old is admitted to a psychiatric facility as
an informal patient, and every three months thereafter;
- before issuing or renewing a Community Treatment Order (CTO), a physician
must be satisfied that the person who will be subject to the CTO, and his/her
substitute decision-maker (SDM), if any, have consulted with a Rights Adviser
and have been advised of their legal rights.
CTOs are the only circumstance in which rights advice may be provided in the
Process of Rights Advice
any of the above described rights advice situations occurs, the physician is
required under the law to notify the rights adviser. The rights adviser is
required, in turn, to promptly meet with the patient, except in the case of CTOs
where the rights adviser is not required to meet but simply to 'provide' rights
advice. The rights adviser must explain to the patient the significance of the
situation. The rights adviser discusses the options available to the patient,
including his/her right to have the situation reviewed by the Consent and
Capacity Board, if he/she disagrees with the physician's decision.
If the patient wishes to have a hearing before the Consent and Capacity
Board, the rights adviser assists the patient to make the application, to obtain
legal counsel if so requested, and to apply for Legal Aid if so requested.
The rights adviser provides information to patients in a neutral,
non-judgmental manner. The rights adviser must not make decisions for patients
but assists them in carrying out their decisions.
Qualifications of a Rights Adviser
(MHA Reg. 741)
Only persons who meet the following requirements may be
designated to perform the functions of a rights adviser under the Act whether in
a psychiatric facility or with respect to a person who is being considered for
the issuance or renewal of a community treatment order:
- The person must be knowledgeable about the rights to apply to the Board
provided under the Act, the Health Care Consent Act, 1996 and the Personal
Health Information Protection Act, 2004.
- The person must be knowledgeable about the workings of the Board, how to
contact the Board and how to make applications to the Board.
- The person must be knowledgeable about how to obtain legal services.
- The person must have the communications skills necessary to perform
effectively the functions of a rights adviser under the Act.
- The person must have successfully completed a training course for rights
advisers approved by the Minister and have been certified as having completed
such a course. O. Reg. 616/00, s. 11; O. Reg. 331/04, s. 5.