Helpful Tips for Lawyers Representing Clients Before the

Consent and Capacity Board

The following information is intended to serve as a support for lawyers who represent clients in the area of Consent & Capacity. The tips have been compiled through a process of collaboration with LAO panel lawyers and others who have considerable experience in this area of law. LAO wishes to acknowledge the generous contributions and thoughtful comments of Jean Buie, Helen Carbone, Linda Carey, Jennifer Chambers, Nathalie Champagne, Michael Davies, Suzan Frazer, Deborah Hastings, Peter Kirby, Jane Meadus, Mercedes Perez, Amy Shoemaker, Marshall Swadron, Anita Szigeti and Charles Walters.

TABLE OF CONTENTS

Helpful Tips for Lawyers Representing Clients In Front of the Consent and Capacity Board ....................................................................................................................1 Why practice consent and capacity law? ..............................................................3 What you need to know that you won't read in a case or text? .............................3 How to review health records?..............................................................................4

Getting Started:...............................................................................................4 Sources of Information:...................................................................................4 Structure of the Chart:.....................................................................................4 A psychiatric assessment is usually structured as follows: .............................5 Common short forms: .....................................................................................5 Medication short forms:...................................................................................5 Common medications: ....................................................................................5 Common side effects of medications (depending on the medications) ...........6 Less common side effects of medications ......................................................6

How to get paid? ...................................................................................................6 Resources.............................................................................................................7

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Why practice consent and capacity law? If you are motivated to advocate for a vulnerable population, this is an area that will restore your faith in practicing law. It is a creative area of law where human rights issues arise in an administrative law context. It involves a challenging and evolving legislative regime. It can be very fast paced, given that a hearing is mandated in most instances within seven days. You will get litigation experience quickly: preparing for hearings; examining and cross-examining witnesses, including experts; and making submissions. The learning experience on a human level is often intense and rewarding. You will make a difference in ways not measured by winning and losing.

What you need to know that you won't read in a case or text: • Whenever possible speak to the client before reading the chart or speaking to

hospital staff • Approach clients with an open mind, avoid passing judgment on their decisions • Incapacity, dangerousness and mental illness are allegations until proven • Don't allow preconceived assumptions to interfere with your relationship with the

client. Approach this client as you would any other. • When initially contacted by the client, patient advocate, legal aid or others, call

the hospital to find your client and schedule a time to see them • Always ask the client what s/he wants. You may be able to mediate the matter

prior to a hearing. Never rule out the possibility that what the client wants can be worked out by way of a meeting or discussion with the treating physician

• Always take your instructions from your client (who is deemed to be competent to instruct counsel pursuant to section 81(1)(b) of the Health Care Consent Act)--not from the doctor or an interested family member or friend

• The onus to establish detention or incapacity is always on the physician, assessor or evaluator

• Clients appearing before the Consent and Capacity Board are extremely vulnerable. Some feel so powerless that they may not realize they have a right to participate and to be heard, or meaningfully instruct counsel. Ensure your client is aware of these rights.

• As soon as you are able, call the Consent and Capacity Board to advise that you are counsel and to schedule a hearing

• Respond promptly to patient advocates, rights advisors and the Public Guardian and Trustee

• Each hospital has its own rules and procedures. Call the hospital to find out their rules regarding: records access and copying, locked units, availability of a private meeting room, client access to telephones for client contact. Keep in mind that these policies may not be in compliance with the law and the hospital may not have the authority to establish them.

• Your client has the right to meet with you in private. If a doctor or other person walks in while you are meeting with your client you can ask them to leave

• Determine in there are prior Board decisions involving your client and review them if there are.

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• Consider speaking to the physician, assessor or evaluator, prior to the hearing, to ensure you have all the information available and to clarify your respective positions. Some clients will instruct you not to speak to the health practitioner

• Review your client's health record before the hearing. If the hospital prevents you from doing so, raise the issue of access at the hearing. If the client prohibits you from viewing the record, consider whether you are able to continue acting for the client.

• If your client fires you during a hearing, and this will happen from time to time, ask the Board for guidance. If it occurs before the hearing advise the board you are no longer acting for your client. The Board may ask you to remain as friend of the Board.

• If you believe your client is held illegally, seek advice from experienced counsel as to actions you may take to secure your client's release

How to review health records?

Getting Started: • Be familiar with section 76 of the Health Care Consent Act, 1996 and the

Personal Health Information Protection Act, 2004 which allows you to access health records

• Call the facility before visiting and determine process for reviewing records and for making copies

• Take photo identification and a business card • Take your checklist with you for reviewing the chart • Be sure to look for what has a basis in evidence and what is subjective and

unreliable • Consider what information has been chosen to be included and what excluded

from the record

Sources of Information: • Clinical record and historical parts of clinical record (make sure to ask for

previous admissions paying special attention to discharge summaries from most recent admissions)

• Outpatient records and/or forensic service records • ACT or other outpatient team records • Policy manuals where available • Family physician’s records • Computerized records

Structure of the Chart: Your client will have a current chart. You need to ask if there are any records that are kept outside the chart, such as records from past admissions, computerized records, medication administration records and social work notes. Make sure that you are getting the entire clinical record to review. 4

A psychiatric chart is usually divided as follows: • Admission data and records including emergency room note (usually the most

comprehensive statement on the physician’s view of what precipitated the admission)

• Legal forms (these must be carefully reviewed to ensure compliance with the legislation)

• Physician’s orders (not all facilities separate out the orders but often this will tell you quickly the current legal status, privileges and medications)

• Clinical notes (sometimes divided into nursing and clinical notes, often in the same section) – these should be reviewed carefully to see if the physician’s concerns are actually borne out in the records, to look for patterns for causes of behavioural problems in hospital, to look at the clinician’s actual notes when a legal finding is made, to ensure compliance by the facility with governing legislation

• Other disciplines (social work notes, psychologists) • Other consultations • Medication administration records • Seclusion and restraint records • Laboratory reports

A psychiatric assessment is usually structured as follows: Presenting problem, social history or family history (soc. Hx), past medical history, mental status (MS), diagnosis (dx), plan or treatment (tx)

Common short forms: Dx – diagnosis, Rx – treatment, Hx – history, schz – schizophrenia, BAD or BD – bipolar disorder, GAF -- global assessment of functioning, ETOH – alcohol, Ψ -- psychiatry, 1/52 -- one week, 1/12 -- one month, EPS -- extrapyramidal symptoms

Medication short forms: q – every, h – hour (q4h means every 4 hours), bid -- twice daily, tid -- three times daily, qid -- four times daily, qhs – every evening, prn – as needed, IM - intramuscular, PO -- by mouth

Common medications: • Traditional antipsychotic or neuroleptic medications: chlorpromazine (Largactil),

loxapine, clopixol, perphenazine (Trilafon), zuclopenthixol, Haloperidol (Haldol), trifluoperazine (Stellazine), nozinan, pimozide, fluphenazine, flupenthixol

• Atypical antipsychotic or neuroleptic medications: clozapine (Clozaril),

olanzapine (also Zyprexa and Zydis (different because it dissolves on the tongue)), risperidone (Risperidol), quetiapine (Seroquel)

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• Side-effect (adverse effect) or antiparkinsonian medication: benzotropine (Cogentin)

• Mood stabilizers: lithium (Li++), valproic acid (Epival), some anticonvulsants

such as Tegretol and lamotrigine (Lamictal) are prescribed at times for their mood stabilizing properties

• Benzodiazapenes: ativan, diazepam, Valium, lorazepam, clonazapam • Antidepressants: parozetine (Paxil), sertraline (Zoloft), Effexor, fluoxetine

(Prozac), buproprion (Wellbutrin/Zyban), amitriptyline (Elavil)

Common side effects of medications (depending on the medications) Over-sedation, mental fog, tardive dyskinesia, trembling, twitching, tics, restlessness, apathy, agitation, weight gain, thirst, cognitive impairment, memory loss (electroconvulsive therapy), sexual dysfunction

Less common side effects of medications Violence, suicidality, immune system impairment, diabetes, stroke, compromised liver function, neuroleptic malignant syndrome (NMS)

How to get paid? The majority of patient applicants to the Consent and Capacity Board qualify for assistance from Legal Aid Ontario (LAO). LAO has established a panel of lawyers who may represent LAO's clients before the CCB. To be admitted to this panel a lawyer must meet and comply with the standards set by LAO for this panel. This panel is administered through LAO's 51 local area offices. Client applications are processed, and eligibility for legal aid assistance determined, in the area offices. Under the Mental Health Act, a patient in a psychiatric hospital or in a psychiatric ward of a general hospital can obtain advice about legal rights from a rights adviser, who is not a lawyer and who may be an employee of the hospital. One of the roles served by the rights adviser is to assist the client in applying for legal aid assistance. The rights advisor may take a simplified application for legal aid for representation before the Consent and Capacity Board. The rights adviser asks the patient to select a lawyer from LAO's consent and capacity panel. Legal Aid Ontario has a duty to arrange legal representation for persons who are or may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service in proceedings before the Consent and Capacity Board where so directed by the board. Upon receipt of the Order, LAO will arrange for a lawyer by canvassing LAO's consent and capacity panel list.

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LAO wants its vulnerable clients to receive timely representation. Counsel who act expeditiously in the client's interest and takes reasonable steps to protect LAO's limited resources will be compensated. In keeping with this intent, LAO will: • Expedite the decision and apply eligibility criteria; • If the applicant qualifies for a payment agreement, ask the lawyer to arrange the

signing of our payment agreement; • If the applicant does not qualify financially for legal aid, refuse the application and

ask the lawyer to arrange a private retainer. The lawyer must take the following steps: • If the applicant qualifies for a payment agreement, attempt to arrange the

signing of LAO's payment agreement; • If the applicant does not qualify financially for legal aid, and LAO refuses the

application for legal aid, attempt to arrange a private retainer; • If the PG&T is the statutory guardian of property for the applicant, attempt to

arrange a private retainer through the PG&T client representative; • If the lawyer takes the above steps but fails to have the applicant sign a payment

agreement or to arrange a private retainer from the client or from the PG&T, LAO will issue a certificate.

LAO's Tariff and Billing Handbook which is available at www.legalaid.on.ca outlines the policies and procedures for legal aid billing and the legal aid tariff.

Resources • LAO LAW: memoranda, case specific research, useful websites, some CCB

cases • Consent and Capacity Legislation, consolidated volume including Mental Health

Act, Substitute Decisions Act, Health Care Consent Act, etc. • A Guide to Consent and Capacity Law in Ontario, by D'Arcy Hiltz and Anita

Szigeti • CCB website: www.ccboard.on.ca, where you will find CCB Rules of Practice,

legislation, forms and information sheets • Psychiatric Patient Advocate Office and their website: www.ppao.gov.on.ca • Diagnostic and Statistical Manual of Mental Disorders (DSM) • Caselaw can be accessed through www.canlii.org, Quicklaw and the CCB

website • Compendium of Pharmacology and Specialties (CPS) by the Canadian

Pharmacists Association, published annually • Plain language Client Expectations document (attached) • Mental Health Legal Committee (Application form attached) • Checklists (samples attached)

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What to Expect from Your Lawyer

Your Lawyer: Is there to protect your interests under that law, and for no other reason. Is your voice, and follows your instructions and no one else's. Provides you with the information you need to make an informed decision about how the lawyer should represent you. Is there to stand up for your rights to the best of their ability Does not decide what is "good for you" Only deals with legal matters (as funded by their Legal Aid certificate) Will talk or meet with you as soon as possible Will review your health record before the hearing Will answer questions you have about your case Will inform you of the results of your hearing and what it means for you Will inform you of your right to request written Reasons from the Board within 30 days of the decision Will inform you of your right to an appeal of the Board's decision Will try to accommodate your special needs (such as providing an interpreter if needed) Will maintain your confidentiality

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Mental Health Legal Committee Membership Application

Name: _______________________________________________ Address: Phone ( )________________ Fax: ( ) ______________ e-mail address: _____________________________. Please initial one choice below: ___ I am applying for membership in the Mental Health Legal Committee (MHLC).

I am a (select one) ___lawyer ___ community legal worker, and my practice includes working for the rights of mental health consumers. I agree with the Statement of Principles of the MHLC set out below. I understand that my participation in the MHLC is as an individual, rather than as a representative of any organization. I agree to maintain the confidentiality of information I may learn from my participation in the MHLC, unless the member providing the information agrees to its disclosure. I agree to withdraw from any meeting of the MHLC if I have, or represent someone who has, an adverse interest in the matter being discussed.

-OR-

___ I am not applying for membership at this time. Please add my name to the

MHLC mailing list Date ________________ _____________________________________ signature

Statement of Principles of the MHLC Consumers of mental health services have the same rights as other Ontarians. To the extent that laws restrict the rights of mental health consumers to protect them or to protect others, those restrictions should be the minimum necessary having regard to the circumstances of the individual. The law may also be a means by which mental health consumers can secure entitlements which will help them to function in society with a reasonable quality of life. Lawyers and CLW’s can play an important role in assisting mental health consumers to secure and exercise their rights and entitlements. Additional Information: Name: _________________________

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I ___do ___do not have access to the Internet. ___ Check here if you do not now have access to the Internet, but believe you will in the next six months. My practice includes the following mental health related matters: (Please select all that apply) ____ proceedings of the Consent and Capacity Board. ____ proceedings of the Ontario Review Board. ____ criminal proceedings where the mental health of the accused is in issue. ____ income maintenance. ____ disability pensions and insurance. ____ quality of care for mental health consumers. ____ regulation of health professionals. ____ malpractice litigation. ____ appellate litigation. ____ development of mental health policy. ____ law reform. ____ teaching. ____ application of the Human Rights Code. ____ other-please specify: Time permitting, I am able to help the work of the MHLC in the following ways: (Please select all that apply) ____ Hosting a meeting in Toronto ____ faxing information to members ____ mailing information to members ____ drafting statements/reports ____ lobbying ____ maintaining a web site ____ other-please specify

Please send the completed application to the MHLC c/o

Marshall Swadron, Acting Chair c/o Swadron Associates

115 Berkeley Street Toronto, Ontario M5A 2W8

Fax: (416) 362-1232 Tel: (416) 362-1234

e-mail: mas@swadron.com

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