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 Rights Adviser Role

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 community.

Process of Rights Advice
When 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:

  1. 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.
  2. The person must be knowledgeable about the workings of the Board, how to contact the Board and how to make applications to the Board.
  3. The person must be knowledgeable about how to obtain legal services.
  4. The person must have the communications skills necessary to perform effectively the functions of a rights adviser under the Act.
  5. 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.
   

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