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The Forensic Mental Health System in Ontario: An Information Guide Centre for Addiction
and Mental Health

Accepting or Refusing Treatment in the Forensic Mental Health System

The Forensic Mental Health System in Ontario: An Information Guide

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Even if you have been hospitalized against your will, you cannot be forced to accept treatment unless:

  • the doctor signs a certificate saying that you are incapable of consenting or refusing, or
  • you have been found Unfit to Stand Trial, and the judge has ordered treatment to make you Fit.

Incapacity to accept or refuse treatment

When a doctor feels that you are too ill to understand your condition, or the consequences of accepting or refusing treatment, the doctor can complete a form that makes a finding of incapacity. This is what happens:

  • A doctor completes a form, making a finding of incapacity.
  • The hospital tells the Rights Adviser.
  • The Rights Adviser visits you and advises you of your legal right to challenge the doctor’s finding.
  • If you do not challenge the doctor’s finding of incapacity, a substitute decision maker (SDM) is named.
  • If you decide to challenge the doctor’s finding, a hearing with the Consent and Capacity Board will be started within seven days.

Substitute decision makers (SDMs)

Usually, a substitute decision maker (SDM) is someone who is related to you. If no one in your family is willing or able to take on this role, someone from the Public Guardian’s office will be named as your SDM. The SDM makes treatment decisions for you. If the SDM consents to the treatment advised by your doctor, you will receive that treatment, even if it is against your will.

It is the psychiatrist’s responsibility to keep assessing your capacity to consent to treatment. When you do understand that you have a mental illness and you know what will happen if you accept or refuse treatment, the SDM can step down. Then you can make your own decisions about treatment.

Going to the Consent and Capacity Board

If you challenge your doctor’s finding of incapacity to consent to treatment, you will have a hearing with the Consent and Capacity Board. The Board is made up of one, three or five impartial psychiatrists, lawyers and members of the public. They follow the rules in the Mental Health Act, the Health Care Consent Act, the Substitute Decisions Act and the Long Term Care Act.

Your psychiatrist must give the Board evidence that you are incapable of consenting to or refusing treatment. Everyone involved in the hearing can have a lawyer present, call witnesses or bring documents.

If the Consent and Capacity Board finds that you are incapable of consenting to or refusing treatment, a substitute decision maker (SDM) will be named.

If the Board finds that you are capable of consenting to or refusing treatment, you now have the right to accept or refuse treatment. Before you do, talk to the team members that are taking care of you about your concerns. Talk over treatment options with them.

The Forensic Mental Health System in Ontario: An Information Guide

  1. Introduction
  2. Who works in the forensic mental health system?
  3. What happens inside the forensic mental health system?
  4. The Ontario Review Board (ORB)
  5. Accepting or refusing treatment in the forensic mental health system
  6. Living in a forensic mental health setting
  7. Family, friends and the forensic mental health system
  8. Leaving the forensic mental health system

Conclusion

Glossary

Where to go for more information

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