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Revised Statutes of Newfoundland 1990


CHAPTER M-9

AN ACT RESPECTING MENTAL HEALTH

Analysis

1. Short title

2. Definitions

3. Treatment facilities

4. Costs of maintenance

5. Admission to treatment facility

6. Certificate authority to convey

7. Assignment of attending physician

8. Certificate of renewal

9. Authority to transfer to another facility

10. Absence without authority

11. Application for medical examination

12. Powers of police

13. Reference by judge

14. Transfer from prison to treatment facility

15. Mental Health Review Board

16. Application for review

17. Summary dismissal

18. Report of proceedings

19. Duty of physician

20. Neglect of patients

21. Advisory officers

22. Grants

23. Regulations


Short title

1. This Act may be cited as the Mental Health Act.

1971 No80 s1; 1971 No14 s2

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Definitions

2. In this Act,

(a) "administrator" means the person in charge of administrative functions within a treatment facility;

(b) "attending physician" means the physician who is given responsibility for the observation, care and treatment of the patient during the period a certificate or renewal of a certificate is in force;

(c) "certificate" means a certificate of authorization issued by 2 physicians in accordance with the provisions of this Act;

(d) "deputy minister" means the Deputy Minister of Health;

(e) "judge" means a judge of the Trial Division;

(f) "medical director" means the physician responsible for clinical services pertaining to psychiatry within a treatment facility;

(g) "mental disorder" means a disease or disability of the mind;

(h) "minister" means the Minister of Health;

(i) "next of kin" in relation to a patient, means

(i) the husband or wife of that patient, or

(ii) where there is no husband or wife of that patient, a descendant, ascendant or collateral, in either case over 18 years old, in that order of priority who is nearest in blood to the patient, and where 2 or more persons in the class of relationship are of equal blood to the patient, the elder or oldest of the persons in that class;

(j) "patient" means a person who is suffering from mental disorder and in respect of whom a valid certificate or renewal of a certificate is in force;

(k) "physician" means a qualified medical practitioner;

(l) "regulations" means regulations made under this Act;

(m) "review board" means the Mental Health Review Board constituted under section 15 of this Act; and

(n) "treatment facility" means, subject to the regulations, a hospital within the province.

1971 No80 s2; 1974 No57 s38 Sch C;
1986 c42 Sch B

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Treatment facilities

3. The minister may by order published in the Gazette designate treatment facilities or parts, or psychiatric divisions of treatment facilities or parts, or classes of treatment facilities for purposes relating to the treatment only of persons suffering from mental disorders of a category specified in the order or for the purpose only of custody of a specified class of patient, or for another limited purpose so specified, and upon publication of the order the treatment facility or part or psychiatric division or part or class described in the order shall operate and be used solely for the purpose so specified.

1971 No80 s4

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Costs of maintenance

4. (1) The minister shall, out of funds appropriated for the purpose by the Legislature, pay the cost of the maintenance in a treatment facility of all persons admitted to the treatment facility in accordance with the provisions of this Act.

(2) Notwithstanding subsection (1), the minister may charge maintenance and other expenses in respect of a person within a treatment facility

(a) under an arrangement with the Government of Canada or the government of another province of Canada;

(b) who is not, in the opinion of the minister, the responsibility of the province; or

(c) who is, in the opinion of the Lieutenant-Governor in Council, in a position to make a contribution for his or her maintenance.

(3) Subsection (1) shall not apply in respect of a person who is maintained within a treatment facility from funds allocated or paid under or by virtue of the authority of an Act of the province, other than this Act, or a statute of the Government of Canada or a province of Canada.

1971 No80 s5

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Admission to treatment facility

5. (1) A person, who in the opinion of a physician is suffering from mental disorder to a degree that the person requires hospitalization in the interests of his or her own safety, safety to others or safety to property, may without his or her consent be admitted to, detained within and treated at a treatment facility.

(2) Notwithstanding subsection (1), a person shall not be admitted to and detained within a treatment facility without his or her consent unless 2 physicians, whose opinions it is that the person is suffering from mental disorder to the degree specified in subsection (1), sign a certificate of authorization in accordance with the following provisions of this Act.

(3) A certificate bearing the signature of 1 physician shall be sufficient authority for a person to convey the person in respect of whom the certificate is signed to a safe and comfortable place and detain him or her there until he or she is medically examined by another physician.

(4) A certificate shall not be signed by either physician

(a) until he or she has personally examined the person named in the certificate as being the person who is suffering from mental disorder to the degree specified in subsection (1) and has made inquiry from the records or sources that may be reasonably necessary to enable him or her to reach his or her opinion;

(b) unless it is made and dated within 7 days of the personal examination required under paragraph (a); or

(c) where the physician is the father, mother, son, daughter, husband or wife of the person or is closely related to or connected with the person by blood or marriage.

(5) The certificate shall be as near as circumstances permit to the form prescribed in the regulations, and shall state or specify

(a) the name and address of the physicians making the certificate;

(b) the times and places of, and circumstances relating to, the personal examinations of the person;

(c) with clarity the facts on which the opinions of the physicians are based, distinguishing the facts observed by them and the facts communicated to them by others and the reasons for the opinions;

(d) that the person refuses to be admitted to a treatment facility recommended by the physicians; and

(e) the treatment facility into which the physicians recommend that the person suffering from the mental disorder should be admitted.

1971 No80 s6

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Certificate authority to convey

6. (1) A certificate granted under this Act and remaining in force shall be sufficient authority for a person to convey the patient to the treatment facility specified in the certificate and for the administrator or medical director of that treatment facility to admit and detain the patient in the treatment facility.

(2) Upon admission of a patient under subsection (1), the patient shall be examined immediately by the medical director or the attending physician, and the medical director or the attending physician shall, as soon as is medically possible, but not later than 15 days after admission either

(a) confirm the certificate, or

(b) revoke the certificate and discharge the patient immediately.

(3) Confirmation of a certificate under subsection (2) shall be sufficient authority for the administrator or the medical director of the treatment facility to detain and treat the patient for a period of 30 days from the date of the patient's admission.

(4) In the event of the patient not reporting or being conveyed to the treatment facility within 14 days after the date of the signing of the certificate by either physician, the certificate shall cease to have effect.

1971 No80 s7

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Assignment of attending physician

7. (1) On the admission of a patient to a treatment facility, the medical director may assign to the patient an attending physician, and there may be assigned to that patient during his or her period of treatment at a treatment facility different attending physicians.

(2) An attending physician may with the consent of the medical director, or the medical director may revoke the certificate of a physician or a renewal of a certificate issued by him or her or by another attending physician under this Act.

1971 No80 s8

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Certificate of renewal

8. (1) An attending physician may renew a certificate by granting a certificate of renewal in a form as near as circumstances permit to the form prescribed in the regulations, but the certificate of renewal shall not be issued until the attending physician

(a) has made personal examination of the patient; and

(b) is satisfied that the patient continues to suffer from mental disorder to the degree specified in subsection 5(1).

(2) Certificates of renewal granted under subsection (1) shall be sufficient authority for the administrator or medical director to detain the patient in respect of whom the certificate of renewal is granted without his or her consent

(a) for a period of 1 month from the date of the 1st certificate of renewal;

(b) for a period of 2 months from the date of the 2nd certificate of renewal;

(c) for a period of 3 months from the date of the 3nd certificate of renewal;

(d) for a period of 6 months from the date of the 4nd certificate of renewal; and

(e) for a period of 1 year from the date of every certificate of renewal after the 4th certificate of renewal.

(3) It is a condition of the validity of every certificate of renewal that it shall be granted

(a) in the case of the 1st certificate of renewal, prior to the expiry of the period specified in subsection 6(3); and

(b) in the case of every subsequent certificate of renewal, prior to the expiry of the period specified in subsection (2) for the certificate of renewal which preceded it.

1971 No80 s9

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Authority to transfer to another facility

9. (1) Where an attending physician is of the opinion that the health or interest of the patient would be better served by the transfer of the patient to another treatment facility named by him or her, whether or not the transfer should be temporary, he or she shall so notify the medical director, and the medical director may, after making the necessary arrangements with the administrator of the treatment facility named by the attending physician, authorize the transfer of the patient to that treatment facility.

(2) Upon receiving the authority from the medical director under subsection (1), the administrator shall make all necessary arrangements for the transfer of the patient to the treatment facility named in the authorization, and shall forward to the administrator of that treatment facility the case papers and records of the patient or copies of the papers and records.

(3) Upon the transfer of the patient under subsection (1), the administrator and medical director of the treatment facility to which the transfer is made shall, in addition to other powers conferred on them by law, have the same rights and powers respecting the patient as were held by the administrator and medical director of the treatment facility from which the transfer is made.

1971 No80 s10

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Absence without authority

10. (1) A patient in a treatment facility who absents himself or herself from that treatment facility without authorization from the medical director, may be returned to the treatment facility by a peace officer or other person appointed by the administrator or medical director, however, if the patient is absent from the treatment facility for a period of more than 3 days, the power conferred by this subsection on the peace officer or other person shall only be executed upon the authority of a written order from the administrator or medical director.

(2) Where a patient, to whom this section applies, is not returned to the treatment facility within 2 months from the date of commencement of his or her absence, he or she shall, unless he or she is subject to detention otherwise than under this Act, be considered to be discharged from the treatment facility.

(3) Where a person does or omits to do an act for the purposes of aiding, assisting, abetting or counselling a patient in a treatment facility to be absent without authorization, that person is guilty of an offence and is liable on summary conviction to a fine of not more than $500, and in default of payment to a term of imprisonment for not more than 1 month.

1971 No80 s11

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Application for medical examination

11. (1) Where an information on oath is laid before a Provincial Court judge that a person named and designated in the information who is present within the district in which the Provincial Court judge exercises jurisdiction is believed by the informant to be suffering from mental disorder to the degree specified in subsection 5(1) the Provincial Court judge, after making inquiry, may, where he or she is satisfied

(a) that the facts alleged in the information are well founded;

(b) that it is reasonable and proper that the person should be examined by 2 physicians; and

(c) that the person has refused or delayed or will refuse or delay to be so examined,

grant a warrant for his or her examination and the warrant shall be sufficient authority for a peace officer or other person as may be designed in the warrant to take the person named in the warrant to both physicians and to detain the person until both physicians have carried out the examination.

(2) A warrant granted under this section shall

(a) contain a statement that the warrant is issued by the Provincial Court judge after making inquiry into the facts and circumstances of the case;

(b) be addressed to all peace officers situated within the jurisdiction of the Provincial Court judge issuing the warrant, or if in the circumstances it would not be practicable or reasonable to so address the warrant, to another person as the Provincial Court judge considers appropriate;

(c) describe the person in respect of whom the warrant is made; and

(d) specify the place to which the person may be taken and detained for the purposes of examination by 2 physicians.

(3) The procedure in a hearing conducted under an inquiry under this section respecting the compelling of witnesses to attend, the taking and hearing of evidence and other matters pertaining to the inquiry shall in so far as applicable be as near as circumstances permit to the procedure laid down in the Summary Jurisdiction Act.

1971 No80 s12

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Powers of police

12. Without prejudice to a right conferred on him or her by law, where a peace officer observes a person acting in a disorderly or dangerous manner, the peace officer may, where he or she has reasonable cause for believing that the person is suffering from mental disorder to the degree specified in subsection 5(1), and it is impracticable in the circumstances to obtain a warrant from a Provincial Court judge under section 11, apprehend the person, take him or her to a treatment facility or other safe and comfortable place and detain him or her until he or she is medically examined by 2 physicians.

1971 No80 s13

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Reference by judge

13. (1) Where a judge or a Provincial Court judge has reason to believe that a person who appears before him or her charged with or convicted of an offence suffers from mental disorder, the judge or a Provincial Court judge may order the person to be examined by a physician.

(2) The physician who carries out the examination under this section shall submit to the appropriate judge or Provincial Court judge a written report as to the mental condition of the person and where the report specifies that in the opinion of the physician the person is or may be suffering from mental disorder and is in need of immediate treatment or observation, the judge or the Provincial Court judge may

(a) order the person to attend a treatment facility for treatment, or

(b) remand the person for observation to a treatment facility for a period of not more than 2 months.

(3) The medical director of the treatment facility to which a person has been remanded for observation under subsection (2) shall, before the expiration of the period specified in the order of remand, report in writing to the judge or the Provincial Court judge as to the mental condition of the person and as to whether a certificate has been issued under section 5.

(4) A certificate may be granted in the form and manner provided by this Act in respect of a person ordered to attend for treatment or remanded for observation under subsection (2), and upon the issuance of a certificate

(a) the provisions of this Act shall apply to that person as if he or she had been admitted following the issuance of that certificate; and

(b) the period during which the person is detained within the treatment facility shall not be counted in computing the period of remand.

1971 No80 s14

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Transfer from prison to treatment facility

14. (1) Notwithstanding section 10(1), where a certificate is granted in respect of a person who has been convicted of an offence and is imprisoned under the authority of an Act of the province, or who, being charged with an offence under an Act of the province is in custody awaiting disposal of the charge, the person shall be transferred from the prison or other place of confinement to the treatment facility named in the certificate and the provisions of this Act shall apply to the person during the period the certificate or renewal of the certificate is in force, so however that

(a) the prior approval of the Minister of Justice shall be required to a treatment facility to which the person is admitted under this section or to which he or she is transferred under section 9; and

(b) the provisions of subsections 10(1) and (2) shall not be construed so as to limit or prejudice the right of a peace officer to arrest and return the person to a prison or place of confinement, if the person would, apart from issuance of a certificate or renewal of a certificate, continue to be liable to imprisonment or custody.

(2) Upon the expiration or revocation of a certificate or renewal of a certificate granted in respect of a person to whom subsection (1) applies, the administrator of that treatment facility shall, after consultation with the Minister of Justice, either return the person to the prison or other place of confinement or release him or her as the Minister of Justice may direct.

1971 No80 s15

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Mental Health Review Board

15. (1) The minister shall appoint a review board, to be known as the Mental Health Review Board consisting of 3 persons, 1 of whom is a barrister, who shall act as chairperson, 1 of whom is a physician, and 1 of whom is not a barrister or physician.

(2) A member of the review board shall not be a physician, officer or employee of, or a person having a direct financial interest in, a treatment facility.

(3) The members of the review board shall

(a) hold office for a term of 3 years, and are eligible for reappointment on expiry of their term of office;

(b) carry out the functions and duties conferred on them by this Act and the regulations; and

(c) be entitled to payments for remuneration, travel expenses and other outlays incurred by them in the performance of their duties that are prescribed in the regulations.

(4) Where a member of the review board ceases to be a member, or refuses or is unable by reason of illness, disqualification or other cause to act as a member, the minister shall, remove the member who refuses or is unable so to act, and shall fill the vacancy created by the cessation or removal.

(5) The minister may, where he or she is of the opinion that a member of the review board is unable, by reason of temporary indisposition, to act as a member for a period not exceeding 6 months, appoint a member to act in his or her place for a period, not exceeding 6 months, as may be specified in the appointment.

1971 No80 s16; 1983 c76 s9

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Application for review

16. (1) A patient within a treatment facility, or a person aggrieved and affected by the detention of a patient within a treatment facility, may, while a certificate or renewal of a certificate is in force in respect of the patient, either personally or through a representative, apply for the discharge of the patient from the treatment facility by filing an application for review, in the form prescribed in the regulations, with the review board, and by serving a copy of the application for review

(a) on the medical director of that treatment facility;

(b) where the application is made by the patient or a person who is not the next of kin, on the next of kin; and

(c) on another person as the review board may direct.

(2) The application for review shall, in addition to the matters prescribed in the regulations, set out in detail the facts on which the application is based, the reasons why the certificate or renewal of a certificate should be revoked, and, where it is made by a person other than the patient, the grounds of grievance and the extent to which the person is affected by the detention of the patient within the treatment facility.

(3) The medical director, the next of kin and another person on whom service of a copy of the application for review has been made, may lodge with the review board answers to the application within 7 days from the date of receipt of him or her or them of the copy of the application for review.

(4) An application for review under subsection (1) may be made by the deputy minister in respect of a patient detained within a treatment facility under this Act, or by the medical director of a treatment facility in which a patient is so detained.

1971 No80 s17

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Summary dismissal

17. (1) The review board may, with the approval of the minister, dismiss an appeal summarily if

(a) the appeal is vexatious or frivolous or is not made in good faith;

(b) the person appealing has not a sufficient personal interest in the subject matter of the appeal; or

(c) the application is made by or on behalf of a patient or person who has already appealed against his or her or the patient's continued detention within a treatment facility on grounds and for reasons which have already been determined by the review board as being insufficient to order the discharge of the patient, and is made within 6 months of the earlier determination.

(2) The review board shall determine the application for review by conducting the inquiry that it considers necessary to reach a decision, and shall hold a hearing, which, in the discretion of the review board, may be in private.

(3) Where a hearing is held under this section, the patient or person applying for the review, the medical director, the next of kin and another person on whom service of the application for review has been made, or their respective representatives, may call witnesses, produce documents and make submissions to the review board, and for the purposes of a hearing of the review board, each member of the review board is vested with all the powers that are conferred on a commissioner by or under the Public Inquiries Act, and the review board is considered to be an investigating body for the purposes of the Public Investigations Evidence Act, and there shall be full right to examine and cross-examine all witnesses called and to adduce evidence in reply and the provisions of section 3 of the Public Inquiries Act applies to all those witnesses.

(4) The administrator or the medical director of the appropriate treatment facility shall, for the purposes of a review, furnish the review board with information and reports respecting the patient affected by the review as the review board requests.

(5) Nothing in this section shall require the attendance of the patient at a hearing of the review board if the review board so directs, but the review board, or a member of the review board may interview the patient in private for the purpose of assisting it in reaching a decision.

1971 No80 s18

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Report of proceedings

18. (1) Upon the conclusion of an inquiry under section 17, the review board shall prepare a written report on the proceedings of the review which report shall contain the decision of the review board and be signed by the chairman.

(2) Where the members of the review board are not unanimous, the decision of a majority is a decision of the review board.

(3) The review board shall have power to order the discharge of a patient from a treatment facility and, if the order is made, it shall be recorded in the decision of the review board.

(4) The report and decision of the review board shall be communicated to the applicant for the review, the deputy minister, the medical director, the next of kin and another person on whom service of the application for review has been made, and the medical director shall, if the decision contains an order of discharge, immediately discharge or direct to have discharged the patient from the treatment facility.

(5) The findings of the review board on questions of fact are final and are not subject to appeal to a court of law.

(6) Notwithstanding subsection (5), nothing in this Act shall affect the right of a person aggrieved by a decision of the review board

(a) to appeal to the Trial Division against the decision on a question of law, and for the purpose of the appeal the rules applicable to appeals made under the Judicature Act, shall apply, or

(b) to apply to the Trial Division for a review under writ of mandamus, certiorari or other prerogative writ.

1971 No80 s19; 1974 No57 s38 Sch C;
1986 c42 Sch B

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Duty of physician

19. (1) It shall be the duty of the physicians who grant a certificate to ensure that the medical director of the treatment facility named by them in the certificate has consented to the admission of the person to that treatment facility.

(2) Nothing in this Act shall require a medical director to admit a person to a treatment facility unless

(a) upon an order of a Provincial Court judge, or

(b) in the case of a person in respect of whom a certificate has been issued, prior consent to the admission has been given by the medical director or a member of the staff of the treatment facility.

1971 No80 s20

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Neglect of patients

20. Where the administrator, medical director, or an officer or other person employed in a treatment facility maltreats, abuses or neglects a patient, or neglects a patient, or obstructs patients from communication with the review board, the administrator, medical director, officer or other person is guilty of an offence and is liable on summary conviction to a penalty not exceeding $500, or in default, to imprisonment for a period not exceeding 6 months.

1971 No80 s21

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Advisory officers

21. The minister may designate or appoint medical and other officers and employees of the Department of Health or of a Crown board, agency, commission or corporation created by or under an Act of the province and the administration of which is under his or her control, to advise and assist persons or bodies having control of, and physicians, health officers and other persons employed at, treatment facilities in all matters pertaining to mental health, and the officers and employees so designated or appointed shall have the duties which may be assigned to them by the regulations.

1971 No80 s22

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Grants

22. Without limitation of the powers and privileges conferred by an Act or law of the province, grants or advances for the operation and maintenance of psychiatric divisions of treatment facilities and equipment in the treatment facilities may be made by the Lieutenant-Government in Council out of money voted by the Legislature for treatment facilities in the manner and subject to the conditions, limitations and scales that may be prescribed by the regulations.

1971 No80 s23

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Regulations

23. (1) The Lieutenant-Governor in Council may make regulations

(a) subject to subsection 5(5), prescribing the form and content of certificates, certificates of renewal, orders, warrants and other forms and documents necessary or desirable for the proper administration of this Act;

(b) respecting the method of transferring from 1 treatment facility to another or otherwise the case papers and records of patients and persons suffering from mental disorder;

(c) governing the admission, detention, leave of absence, absence without authorization, transfer, discharge and placement of patients;

(d) exempting a treatment facility or class of treatment facility from the application of this Act;

(e) respecting grants or advances by way of aid for a psychiatric division of a treatment facility and equipment in the treatment facility, including the manner of making the grants or advances, the amounts, conditions and limitations under which grants and advances will be made and the scales of payment;

(f) prescribing the duties of the review board and the individual members of the review board;

(g) providing for the remuneration, travel expenses and other outlays incurred by the members of the review board in performing their duties under the Act and the regulations;

(h) governing and regulating hearings and other proceedings of the review board, providing the form of application for review and the contents of the form of application for review, respecting the decision of the review board and the order of discharge and notification of the review board;

(i) providing for the creation, establishment, construction, alteration, renovation, maintenance, and control of accommodation of psychiatric divisions of treatment facilities, prescribing essential equipment and services in those treatment facilities, regulating the standards of construction, operation and use and making provision for employment of officers and staff and prescribing qualifications and terms of service;

(j) prescribing additional duties of medical and other officers and servants designated or appointed under section 20;

(k) respecting the receipt by persons suffering from mental disorder within treatment facilities of communications, imposing conditions when correspondence addressed to the persons may be opened and examined prior to delivery, and prescribing the circumstances when communications may be withheld from the person in their own interest; and

(l) generally, to give effect to the purpose of this Act.

(2) Regulations made under paragraphs (1)(b), (c), (e), (i) and (j) may make different provisions for or in respect of different treatment facilities or classes of treatment facilities, or for the same classes of treatment facility in different circumstances or locations.

1971 No80 s24; 1973 No93 s2

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