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 Restriction of Liberties Hearing

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This Info guide has been prepared by the Psychiatric Patient Advocate Office in the Ministry of Health and Long-Term Care for general Informational purposes only.  It does not contain legal advice.  If you have a question of would like advice about your specific legal situation, you should contact a lawyer.

June 2016

What is a restriction of liberties hearing?

  • Under section 672.81(2.1) of the Criminal Code of Canada, the Ontario Review Board must hold a hearing as soon as practicable after being notified by the hospital that the hospital has increased the restriction on the accused person’s liberties significantly for a period of more than 7 days.
  • A restriction of liberties hearing, also known as a “special” hearing, is held when the Ontario Review Board receives notice from the hospital that your liberties have been significantly restricted.
  • There is no uniform standard for what constitutes a significant restriction of liberties. Hospitals may have different views of the specific situations that require them to notify the Ontario Review Board that a significant restriction of your liberties has occurred. There may be occasions when you believe your liberties have been restricted but the hospital does not. You may request a hearing if you believe you are entitled to one, but the hospital has not notified the Ontario Review Board. The Ontario Review Board will decide whether a hearing will be held.
  • An example of a significant restriction of liberties that may trigger a hearing is a situation where you have been living in the community and are brought back to the hospital. Another example could be if you were transferred from a minimum secure forensic unit in a hospital to a medium or maximum secure forensic unit. It is now the practice of most forensic hospitals to report to the Ontario Review Board any seclusion lasting longer than 7 days which will prompt a mandatory review hearing by the Ontario Review Board.

 

Will I still be entitled to my annual hearing if there is a restriction of liberties hearing?

  • Normally, yes. A Restriction of Liberties hearing is a regular hearing but will not necessarily result in a new disposition. The Ontario Review Board may or may not elect to hold a Disposition Hearing, largely depending upon their findings as a result of their review of the restriction. The purpose of the Restriction of Liberties hearing is to review the circumstances surrounding the restriction and to determine whether the hospital’s actions were justified throughout the time period of the restriction.

 

Who informs the Ontario Review Board when there had been an increase in the restriction of liberties?

  • The hospital must notify the Ontario Review Board any time your liberties are significantly restricted for more than 7 days.

 

Will the hospital also notify me?

  • The hospital has an obligation to inform you of the request for a hearing.
  • The Psychiatric Patient Advocate Office may also work with you to explain your options and to assist you in exercising your rights.

 

How do I apply for a restriction of liberties hearing?

  • You are not required to apply for the hearing. There is no application form. The hospital has the obligation to notify the Ontario Review Board.
  • As stated earlier, if you feel that you are entitled to a hearing, and the hospital has not requested one, you can write to the Ontario Review Board and ask for a hearing. A copy should also be sent to your doctor or the hospital.
  • Attached to this Info Guide is a “Notice to the Board” that you could use, if you wish. However, you may want to speak with your lawyer or the Psychiatric Patient Advocate Office to discuss your options before writing to the Ontario Review Board.

 

Can I waive my right to a hearing?

  • No. Whenever your liberties are restricted for more than seven days, the Ontario Review Board must hold a hearing, even if you do not want one.

 

Do I have to proceed with the restriction of liberties hearing scheduled?

  • Maybe. You may choose to ask that your hearing be adjourned for a period of time.
  • Generally, the Ontario Review Board will not agree to an adjournment before the hearing date – they will usually make you attend the hearing to make sure that you want an adjournment. The Alternate Chairperson will then make a decision.
  • But, keep in mind that the Ontario Review Board is not obligated to agree to your request for an adjournment as the law requires that a hearing be held.

 

The hospital has asked that I agree to an adjournment. What can I do?

  • You should discuss these matters with your lawyer, if you have one.
  • If the hospital has asked that the restriction of liberties hearing be adjourned, you may do one of three things:
    1. Do nothing. In this case, the Ontario Review Board will consider the hospital’s request and may agree or disagree to adjourn the hearing.
    2. Object to the timeframe of the adjournment. You may agree to adjourn the hearing but not to the date the hospital is choosing.
    3. Consent to the adjournment. You may agree with the hospital’s request.
  • Or, the Patient Advocate may assist you in completing a document to request an adjournment. The form is attached to this Info Guide.

 

Who will attend this hearing?

  • You and your lawyer (if you have one).
  • The person in charge of the facility where you are receiving your care and treatment and/or their representative.
  • A lawyer representing the Attorney General of Ontario.
  • Witnesses (if you, the hospital or the Attorney General choose to call witnesses)
  • Any interpreters that may be required
  • Members of the Ontario Review Board and their recording transcriber

 

Will I need to have a lawyer at this hearing?

  • The decision to retain a lawyer is yours.
  • However, the Ontario Review Board may assign counsel to represent you.

 

If I decide to have a lawyer who will assist me find a lawyer?

  • The Patient Advocate is available to assist you in applying for legal aid and in arranging a lawyer.
  • In some cases, your social worker may assist you in arranging for a lawyer.
  • You always have the right to choose a lawyer of your choice for any Ontario Review Board hearing. If legal aid is requested, there is a list of lawyers provided by legal aid who are qualified to represent you in this area and who will accept payment at the legal aid rate.
  • You may ask your usual lawyer to represent you at this hearing as this person is familiar with their disposition order and your case.

 

Questions?

  • You may wish to see the Ontario Review Board website at: www.orb.on.ca  
  • If you have questions, contact your local Patient Advocate or Rights Adviser or call the central office of the Psychiatric Patient Advocate Office at 1-800-578-2343.  
   

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