What follows is an excerpt of CBA's Continuing Legal Education article from the Advocacy Centre for the Elderly. The author is base in Ontario, but you proletarian monkeys* in BC should use the precautionary principle when choosing to violate the rights of the sick or the elderly.
There's actually an article on ClickLaw regarding proper admission to a designated mental health facility. If you violate the rules or principles of informed consent you'll probably get away with it unfortunately, as you can see in the article by Jay Chalke extolling the glorious equanimity of British Columbia neglecting legal procedure and protections in nearly 70% of its forcible detentions in a designate facility.
These forcible detentions often result in forcible medication, which might be construed by a litigious individual as kidnapping and unlawful confinement, followed by administration of a noxious substance which may be reasonably expected to cause grievous bodily harm or death.
But, if nobody stands up and says "Stop!" we'll likely see the rate of unlawful detentions under the Mental Health Act increase, with a corollary increase in the number of State-Sponsored Suicides.
* Hear no evil, see no evil...
Judith A. Wahl
Advocacy Centre for the Elderly
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2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3
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Tel - 416-598-2656
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Fax - 416-598-7924
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Email wahlj@lao.on.ca
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Website www.acelaw.ca
Watch your assumptions (so check the authority of why you think what you think)
Watch your assumptions
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Not all old people are incapable
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Physically frailty or disability should not put mental capacity in question automatically
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Just because someone is a doctor or another type of healthprofessional doesn’t mean that they understand how and when todetermine decisional capacity
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Just because someone is a health professional does not mean that they are the right person to give an opinion of capacity for what you need or has the authority to give an opinion for the purpose you need
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Just because someone has a diagnosis of a mental health illness or dementia or Alzheimer's Disease or a related disorder does not mean automatically that they lack decisional capacity
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Just because there is a negative assessmentdoesn’t mean that the person is incapable
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Just because there is an SDM (named in a POA) or even a guardianship order that the person is incapable for all purposes
Need to Understand in Your Jurisdiction
- Capacity specific to issue
- Presumption of capacity
- Capacity – caselaw
- Capacity – statutes
Mental Capacity
- Mental Capacity is a socio-legal construct and its meaning varies over time and across jurisdictions
- Assessment / evaluation refers to a legal assessment not a clinical assessment
- Clinical assessments underlie diagnosis, treatment recommendations and identify or mobilize social supports
- Legal assessments remove from the person the right to make autonomous decisions in specified areas
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Not the score on the MMSE or any other test
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Not a Diagnosis
Consent To Admission To Care Facility On Behalf Of Incapable Person
HCCA s. 40
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Evaluator finds person incapable in respect to admission.
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Consent required by law to admission.
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Consent may be given or refused by SDM (same priority list as for SDM for treatment).
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Principles for giving or refusing consent - wishes, then best interests.
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Person may apply to CCB for review of finding of incapacity or to apply for representative. Other person may apply to CCB to be appointed as representative.
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