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This version was current from November 6, 2020 to February 25, 2022 .
Note: It does not reflect any retroactive amendment enacted after February 25, 2022.
To find out if an amendment is retroactive, see the coming-into-force provisions
at the end of the amending Act.
The Mental Health Act
(Assented to June 29, 1998)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
"clinical record" means the clinical record compiled and maintained in a facility respecting a patient, and includes a part of a clinical record and any document prepared for the purpose of a disposition under Part XX.1 of the Criminal Code (Canada); (« dossier médical »)
"committee" means a committee appointed under this Act; (« curateur »)
"common-law partner" means
(a) with respect to a patient,
(i) a person who, with the patient, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or
(ii) a person who, not being married to the patient, cohabited with him or her in a conjugal relationship for a period of at least six months immediately before the patient's admission to the facility, and
(b) with respect to any other person,
(i) a person who, with the other person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or
(ii) a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship and has so cohabited for a period of at least six months; (« conjoint de fait »)
"court", for the purpose of an appeal under Part 7 and in Parts 8 to 10, means the Court of Queen's Bench; (« tribunal »)
"director" means the psychiatrist appointed under section 114 as Director of Psychiatric Services for the province; (« directeur »)
"enduring power of attorney" means an enduring power of attorney as defined in The Powers of Attorney Act; (« procuration durable »)
"facility" means a place designated in the regulations as a facility for the observation, assessment, diagnosis and treatment of persons who suffer from mental disorders; (« établissement »)
"family" includes a common-law partner; (« famille »)
"guardian" means the parent of a minor, or a person appointed guardian of a minor by a court of competent jurisdiction; (« tuteur »)
"incapable person" means a person for whom a committee has been appointed under section 41, 61 or 75; (« personne incapable » ou « incapable »)
"medical director" means the psychiatrist responsible for the provision and direction of psychiatric services for a facility; (« directeur médical »)
"mental disorder" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, but does not include a disorder due exclusively to a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act; (« troubles mentaux »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"nearest relative" means, with respect to a patient or other person,
(a) the adult person listed first in the following clauses, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any clause being preferred to the other of those relatives, regardless of gender:
(i) spouse or common-law partner,
(ii) son or daughter,
(iii) father or mother,
(iv) brother or sister,
(v) grandfather or grandmother,
(vi) grandson or granddaughter,
(vii) uncle or aunt,
(viii) nephew or niece, or
(b) the Public Guardian and Trustee, if there is no nearest relative within any description in clause (a) who is apparently mentally competent and available and willing to act on the patient's behalf; (« parent le plus proche »)
"patient" means a person who is admitted to a facility as an in-patient, or is attending as an out-patient for diagnosis or treatment; (« malade »)
"physician", except in section 69, means a physician who holds a valid certificate of practice issued by the College of Physicians and Surgeons of Manitoba under The Regulated Health Professions Act; (« médecin »)
"prescribed" means prescribed in the regulations;
"proxy" means a proxy appointed in a health care directive made in accordance with The Health Care Directives Act who is available and willing to act, but does not include a proxy to the extent he or she is restricted, by the terms of the directive, from making treatment decisions that fall within the scope of this Act; (« mandataire »)
"psychiatrist" means a person registered and certified to practise under The Regulated Health Professions Act and who
(a) is certified as a specialist in psychiatry by the Royal College of Physicians and Surgeons of Canada, or
(b) has practical experience and training in the diagnosis and treatment of mental disorders that the minister accepts as an equivalent qualification for the purpose of this Act; (« psychiatre »)
"Public Guardian and Trustee" means the Public Guardian and Trustee appointed under The Public Guardian and Trustee Act; (« tuteur et curateur public »)
"restrain", with respect to a patient, means to place under control when necessary to prevent harm to the patient or to another person by the minimal use of such force, mechanical means or medication as is reasonable having regard to the patient's physical and mental condition; (« mettre en contention »)
"review board" means the Mental Health Review Board established in section 49; (« Commission d'examen »)
"spouse", with respect to a patient or other person, does not include a spouse from whom the patient or other person is living separate and apart. (« conjoint »)
Mental competence presumed at age 16
In the absence of evidence to the contrary, it shall be presumed
(a) that a person who is 16 years of age or more is mentally competent to make treatment decisions and to consent for the purpose of this Act; and
(b) that a person who is under 16 years of age is not mentally competent to make treatment decisions or to consent for the purpose of this Act.
Meaning of incapacity for personal care
For the purpose of Parts 8 and 9, a person is incapable of personal care if he or she is repeatedly or continuously unable, because of mental incapacity,
(a) to care for himself or herself; and
(b) to make reasonable decisions about matters relating to his or her person or appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Admission as a voluntary patient
A person may be admitted to a facility as a voluntary patient if the admitting physician is of the opinion that the person is suffering from a mental disorder and needs psychiatric assessment and treatment of a kind that can be provided only in a facility.
To be admitted as a voluntary patient, the person must consent to the admission and must be mentally competent to do so in the opinion of the admitting physician.
Patient's right to leave facility
A voluntary patient who wishes to leave a facility contrary to medical advice must first sign a request for discharge.
Patient may be detained if danger
A person on the treatment staff of a facility may detain and, if necessary, restrain a voluntary patient requesting to be discharged, if the staff member believes on reasonable grounds that the patient
(a) is suffering from a mental disorder;
(b) because of the mental disorder, is likely to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration, if he or she leaves the facility; and
(c) needs to be examined by a physician to determine if an application for an involuntary psychiatric assessment should be made under subsection 8(1).
Examination within 24 hours
A patient who is detained under subsection (2) must be examined by a physician within 24 hours.
Change of patient's status to involuntary
The attending physician of a voluntary patient may apply to change the patient's status to that of an involuntary patient by completing and filing an application for an involuntary psychiatric assessment under subsection 8(1).
Psychiatric assessment within 72 hours
A psychiatrist shall make an assessment within 72 hours after an application is made under subsection (1). However, if the patient has already been a patient for more than 72 hours, the assessment must be made within 24 hours.
If the psychiatrist making the assessment is of the opinion that the requirements for involuntary admission under subsection 17(1) are met, he or she shall complete an involuntary admission certificate and file it with the medical director.
INVOLUNTARY ASSESSMENT
AND ADMISSION
Description of involuntary admission procedures
A person may be admitted to a facility as an involuntary patient only in accordance with the following procedures:
The person must be examined by a physician under section 8, whether under the general authority of that section or in accordance with a court order under section 11 or the power of a peace officer under section 12.
The physician must apply for an involuntary psychiatric assessment of the person in accordance with section 8.
A psychiatric examination and assessment must be made of the person's mental condition in accordance with sections 16 and 17.
The psychiatrist who makes the assessment must complete and file an involuntary admission certificate for the person in accordance with section 18.
PHYSICIAN'S APPLICATION FOR AN
INVOLUNTARY PSYCHIATRIC ASSESSMENT
Physician may apply for involuntary psychiatric assessment
When a physician examines a person and is of the opinion that he or she
(a) is suffering from a mental disorder;
(b) because of the mental disorder, is likely to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration; and
(c) is unwilling to undergo or is not mentally competent to consent to a voluntary psychiatric assessment;
the physician may apply to the medical director of a facility for an involuntary psychiatric assessment of the person.
Determining competence to consent
In determining whether a person is mentally competent to consent to a voluntary assessment under clause (1)(c), the physician shall consider whether the person understands the nature and purpose of an assessment and whether the person's condition affects his or her ability to appreciate the consequences of giving or withholding consent.
Application within 2 days of examination
The application must be made within two days after the examination.
Content of application
The application must be in the prescribed form and must indicate
(a) that the physician personally examined the person;
(b) the date of the examination;
(c) the facts on which the physician formed the opinion that the criteria under subsection (1) are met, distinguishing the facts the physician observed from the facts communicated to him or her by others; and
(d) that the physician inquired carefully into the facts necessary to form the opinion.
Application authorizes detention and assessment
The application by a physician under section 8 is sufficient authority
(a) for any peace officer to take the person into custody as soon as possible, and then promptly to a hospital, all or part of which is designated as a facility;
(b) for the person to be detained, restrained and observed in a facility for not more than 72 hours; and
(c) for a psychiatrist to examine and assess the person's mental condition to determine whether involuntary admission is necessary under section 17.
Application valid for 7 days
The authority to take a person into custody under clause (1)(a) expires at the end of the seventh day after the day the physician signs the application.
COURT ORDER FOR AN INVOLUNTARY
MEDICAL EXAMINATION
Justice may order examination by a physician
Any person may apply to a justice for an order that another person be examined involuntarily by a physician.
The application must be made in writing, under oath, and must state reasons for the request.
The justice shall consider the application as well as the evidence of any witnesses, and may do so without notice to the person named in the application.
Order for an involuntary medical examination
After considering an application made under section 10 and the evidence of any witnesses, the justice may issue an order that the person named in it be examined involuntarily by a physician, if the justice believes on reasonable grounds that the person
(a) is apparently suffering from a mental disorder;
(b) because of the mental disorder, is likely to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration;
(c) needs a medical examination to determine whether he or she should undergo a psychiatric assessment; and
(d) refuses to be medically examined.
Order to take into custody
An order under this section
(a) may be directed to an individual peace officer or to all peace officers of the area in which the justice has jurisdiction; and
(b) is authority for a peace officer to take the person named in the order into custody as soon as possible, and then promptly to a place where the person may be detained and examined involuntarily by a physician.
Order valid for 7 days
An order under this section expires at the end of the seventh day after the day it is made.
PEACE OFFICER'S POWER TO TAKE INTO CUSTODY
Peace officer's power to take into custody
A peace officer may take a person into custody and then promptly to a place to be examined involuntarily by a physician if
(a) the peace officer believes on reasonable grounds that the person
(i) has threatened or attempted to cause bodily harm to himself or herself,
(ii) has behaved violently towards another person or caused another person to fear bodily harm from him or her, or
(iii) has shown a lack of competence to care for himself or herself;
(b) the peace officer is of the opinion that the person is apparently suffering from a mental disorder of a nature that will likely result in serious harm to the person or to another person, or in the person's substantial mental or physical deterioration; and
(c) the urgency of the situation does not allow for an order for an examination under section 11.
A peace officer may take any reasonable measures when acting under this section or section 9 or 11 or subsection 44(1) or 48(2), including entering any premises to take the person into custody.
GENERAL REQUIREMENTS
FOR INVOLUNTARY EXAMINATIONS
AND ASSESSMENTS
Examination within 24 hours
A person who is taken into custody for an involuntary medical examination under section 11 or 12 must be examined as soon as reasonably possible, but not later than 24 hours after the person arrives at the place of examination.
Place of examination
When practicable, the medical examination must take place in an appropriate health care setting.
Peace officer's duty to inform patient about examination
A peace officer who takes a person into custody for an involuntary medical examination under section 11 or 12 or an involuntary psychiatric assessment under section 9 shall promptly inform the person in writing as to
(a) where the person is being taken;
(b) that the person is being taken for an involuntary medical examination or psychiatric assessment and the reason why; and
(c) the person's right to retain and instruct counsel.
Peace officer's duty during examination
A peace officer who takes a person into custody for an involuntary medical examination under section 11 or 12 or an involuntary psychiatric assessment under section 9 shall remain with the person and retain custody of them, or arrange for another peace officer or a qualified person to do so, until the examination or assessment is completed or the person is admitted to the facility.
Subsection (1) does not apply if the physician conducting the examination or assessment advises the peace officer that continuing custody is not required.
Duty to return person
When a peace officer takes a person to a facility or other place for an involuntary medical examination under section 11 or 12 or an involuntary psychiatric assessment under section 9 and
(a) the physician does not apply for an involuntary psychiatric assessment of the person; or
(b) the person is not admitted to the facility;
the peace officer shall, if practicable, arrange for the person to be returned to the place from which he or she was taken, or to another appropriate place.
Definition: "qualified person"
In this section, "qualified person" means a person who holds a position specified in the regulations or who has received training specified in the regulations.
INVOLUNTARY PSYCHIATRIC ASSESSMENT
AND ADMISSION
Involuntary psychiatric assessment
A medical director who receives an application under subsection 8(1) for an involuntary psychiatric assessment of a person shall ensure that a psychiatrist examines the person and assesses his or her mental condition.
Psychiatrist who applies cannot certify
The psychiatrist who examines the person must not be the same physician who applied for an involuntary psychiatric assessment of the person under subsection 8(1).
Duty of psychiatrist to admit or release
After examining the person and assessing his or her mental condition, the psychiatrist shall do one of the following:
(a) admit the person to the facility as a voluntary patient under Part 2;
(b) admit the person to the facility as an involuntary patient under section 17;
(c) release the person under section 20.
Requirements for involuntary admission
After examining a person for whom an application has been made under subsection 8(1) and assessing his or her mental condition, the psychiatrist may admit the person to the facility as an involuntary patient if he or she is of the opinion that the person
(a) is suffering from a mental disorder;
(b) because of the mental disorder,
(i) is likely to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration if not detained in a facility, and
(ii) needs continuing treatment that can reasonably be provided only in a facility; and
(c) cannot be admitted as a voluntary patient because he or she refuses or is not mentally competent to consent to a voluntary admission.
Determining competence to consent
In determining whether a person is mentally competent to consent to a voluntary admission under clause (1)(c), the psychiatrist shall consider whether the person understands the nature and purpose of admission and whether the person's condition affects his or her ability to appreciate the consequences of giving or withholding consent.
Involuntary admission certificate
A psychiatrist who admits a person to a facility as an involuntary patient shall complete an involuntary admission certificate in the prescribed form and file it with the medical director.
Content of certificate
An involuntary admission certificate must indicate
(a) that the psychiatrist personally examined the person;
(b) the date or dates of the examination;
(c) the psychiatrist's diagnosis or provisional diagnosis of the person's mental disorder;
(d) the facts on which the psychiatrist formed the opinion that the criteria under subsection 17(1) are met, distinguishing the facts the psychiatrist observed from the facts communicated to him or her by others; and
(e) that the psychiatrist inquired carefully into the facts necessary to form the opinion.
Medical director to examine certificate
Promptly after an involuntary admission certificate is filed, the medical director shall ensure that it has been completed in accordance with this Act.
Duration of involuntary admission certificate — 21 days
An involuntary admission certificate is authority to detain, restrain, observe, examine and treat an involuntary patient in a facility for not more than 21 days from the date of the certificate.
Release if admission requirements not met
A psychiatrist shall release a person for whom an application has been made under subsection 8(1) if, after examining the person and assessing his or her mental condition, the psychiatrist is of the opinion that neither the requirements for voluntary admission under section 4 nor the requirements for involuntary admission under subsection 17(1) are met.
Release after 72 hours
A person must be released within 72 hours of being first detained in the facility unless, within that time, he or she is admitted as a patient.
Detention under another law
Release under this section is subject to any detention lawfully authorized otherwise than under this Act.
Shortly before an involuntary admission certificate or any renewal certificate expires, the attending psychiatrist shall examine the patient and assess his or her mental condition to determine if the requirements for involuntary admission under subsection 17(1) continue to be met. If so, the psychiatrist may renew the patient's status as an involuntary patient by completing a renewal certificate.
Content of certificate
A renewal certificate must be filed with the medical director and must contain the same information as an involuntary admission certificate under subsection 18(2).
Duty of medical director
Promptly after a renewal certificate is filed, the medical director shall ensure that it has been completed in accordance with this Act.
Duration of renewal certificate — 3 months
A renewal certificate is authority to continue to detain, restrain, observe, examine and treat an involuntary patient in a facility for not more than three months from the date of the certificate, and each subsequent renewal certificate is authority for a further period of not more than three months.
Patient's status if no renewal certificate issued
A psychiatrist who assesses a patient under subsection (1) and does not renew the patient's status as an involuntary patient shall promptly inform the patient that he or she is now a voluntary patient.
Patient's status on expiry of involuntary admission certificate
An involuntary patient whose authorized period of detention under an involuntary admission certificate or a renewal certificate has expired is deemed to be a voluntary patient.
CHANGE OF PATIENT'S STATUS
TO VOLUNTARY
Change of status of involuntary patient to voluntary
The attending physician of an involuntary patient shall change the patient's status to that of a voluntary patient if at any time he or she is of the opinion that the requirements for involuntary admission under subsection 17(1) are no longer met but the requirements for voluntary admission under section 4 are met.
Change of status certificate
The attending physician referred to in subsection (1) shall complete and file a certificate of change of status with the medical director, who shall ensure that the patient is promptly informed of the change.
CRIMINAL CODE ADMISSION
Admission under the Criminal Code
A person admitted to a hospital under Part XX.1 (Mental Disorder) of the Criminal Code (Canada) is deemed to be an involuntary patient, and while detained under that Part is subject to the provisions of this Act that concern involuntary patients, except that, notwithstanding any other provision of this Act,
(a) the provisions respecting the status of a patient do not apply to the person; and
(b) the person may leave or be discharged from the hospital only in accordance with Part XX.1 of the Criminal Code (Canada).
When detention expires under the Criminal Code
Shortly before a person's detention under Part XX.1 of the Criminal Code (Canada) expires, a psychiatrist on the staff of a facility may examine the person and assess his or her mental condition and may, if the requirements for involuntary admission under subsection 17(1) are met, admit the person to the facility as an involuntary patient in accordance with that subsection.
Definition of "hospital"
In this section, "hospital" means a hospital as defined in section 672.1 of the Criminal Code (Canada).
TRANSFER FROM A
CORRECTIONAL FACILITY
Transfer from correctional facility
When, in the opinion of a physician, a person confined in a correctional facility and charged with or convicted of an offence is mentally disordered, the director may have the person admitted to a facility for observation, assessment, diagnosis and treatment. The person must not be discharged from the facility or returned to the correctional facility unless, in the opinion of the director or the medical director, he or she is fit to be discharged or returned.
No discharge of prisoner
Except to return a patient to a correctional facility, nothing in this section authorizes the discharge of a patient who is imprisoned for an offence and whose sentence has not expired.
PATIENT'S RIGHT TO MAKE
TREATMENT DECISIONS
Right to refuse treatment
Except as provided in this Act, a patient of a facility has the right to consent to or refuse psychiatric and other medical treatment.
Competence to make treatment decisions
As soon as reasonably possible after a patient is admitted to a facility, the attending physician shall determine whether the patient is mentally competent to make treatment decisions.
In determining a patient's mental competence to make treatment decisions, the attending physician shall consider
(a) whether the patient understands
(i) the condition for which the treatment is proposed,
(ii) the nature and purpose of the treatment,
(iii) the risks and benefits involved in undergoing the treatment, and
(iv) the risks and benefits involved in not undergoing the treatment; and
(b) whether the patient's mental condition affects his or her ability to appreciate the consequences of making a treatment decision.
Certificate of incompetence
A physician who is of the opinion that a patient is not mentally competent to make treatment decisions shall complete a certificate to that effect, with reasons for the opinion, and file it with the medical director.
On receiving a certificate under subsection (3), the medical director shall, if satisfied that the physician's opinion is supported by the reasons given, send a copy to the patient and the person authorized to make treatment decisions on the patient's behalf under subsection 28(1) and inform them, in writing, of the right to apply to the review board for a review of the physician's opinion.
Review of certificate
After a certificate is filed under subsection (3), the attending physician shall periodically review the patient's condition to determine if the patient has regained the mental competence to make treatment decisions. If so, the physician shall file with the medical director a statement of his or her opinion, with reasons, that the patient has regained the competence to make treatment decisions.
On receiving a statement under subsection (5), the medical director shall, if satisfied that the physician's opinion is supported by the reasons given, cancel the certificate and notify the patient and the person authorized to make treatment decisions on the patient's behalf under subsection 28(1) of the cancellation.
Duration of certificate
A certificate under this section continues in effect until it is cancelled under this section or under Part 7, or until the patient is discharged.
TREATMENT DECISIONS BY OTHERS
Treatment decisions by others
If a patient is not mentally competent to make treatment decisions, treatment decisions may be made on the patient's behalf by
(a) the patient's proxy;
(b) if there is no proxy, the patient's committee of both property and personal care appointed under subsection 75(2);
(c) if there is no proxy or committee of both property and personal care, the patient's nearest relative; or
(d) if the patient is a minor, the patient's guardian.
Person must be available and willing
To make a treatment decision on a patient's behalf, a person referred to in subsection (1) must be apparently mentally competent and available and willing to make the decision.
Requirements for nearest relative
A patient's nearest relative, other than the Public Guardian and Trustee, shall not make treatment decisions on the patient's behalf under subsection (1) unless he or she
(a) has been in personal contact with the patient within the previous 12 months;
(b) is willing to assume the responsibility for making treatment decisions; and
(c) makes a statement certifying his or her relationship to the patient and the facts mentioned in clauses (a) and (b).
Decisions on patient's behalf
A person who makes treatment decisions on a patient's behalf under subsection (1) shall do so
(a) in accordance with the patient's wishes, if the person knows that the patient expressed such wishes when apparently mentally competent; or
(b) in accordance with what the person believes to be the patient's best interests if
(i) the person has no knowledge of the patient's expressed wishes, or
(ii) following the patient's expressed wishes would endanger the physical or mental health or the safety of the patient or another person.
Determining best interests
In determining the patient's best interests regarding treatment, a person referred to in subsection (1) shall have regard to all the relevant circumstances, including the following:
(a) whether the patient's condition will be or is likely to be improved by the treatment;
(b) whether the patient's condition will deteriorate or is likely to deteriorate without the treatment;
(c) whether the anticipated benefit from the treatment outweighs the risk of harm to the patient;
(d) whether the treatment is the least restrictive and least intrusive treatment that meets the criteria set out in clauses (a), (b) and (c).
Physician may rely on nearest relative's statement
When a patient's nearest relative makes treatment decisions on a patient's behalf under subsection (1), the physician may rely on the person's statement as to his or her relationship with the patient and as to the facts mentioned in clauses (3)(a) and (b).
If a physician acting on a treatment decision makes reasonable inquiries within a 72-hour period for persons entitled to make the decision, that physician is not liable for failure to request the decision from the person entitled to make the decision on the patient's behalf.
No onus to inquire into existence of proxy or directive
Nothing in subsection (7) requires a physician to inquire as to whether a patient has appointed a proxy or made a health care directive.
No treatment without consent
Except as provided in this section, an attending physician shall not administer treatment to a patient
(a) who is mentally competent to make treatment decisions, without the patient's consent;
(b) who is not mentally competent to make treatment decisions, without the consent of a person authorized to make treatment decisions on the patient's behalf under subsection 28(1); or
(c) unless the review board or the court has made an order under subsection 30(3) or Part 7 authorizing the treatment to be given.
Exception for psychiatric treatment to prevent harm
Pending consent on a patient's behalf or an order of the review board or the court, psychiatric treatment may be given without consent to a patient in order to prevent harm to the patient or to another person.
Method of psychiatric treatment
Psychiatric treatment may be given under this section by the use of such force, mechanical means or medication as is reasonable having regard to the patient's physical and mental condition.
Detailed record of psychiatric treatment
Measures taken under subsection (2) to treat or restrain a patient without his or her consent must be recorded in detail in the patient's clinical record, and must include the following:
(a) where medication is used, an entry of the medication used that includes the dosage and the method and frequency of administration; and
(b) where force or mechanical means are used to restrain the patient, a statement that the patient was restrained that includes
(i) a description of the means of restraint,
(ii) a statement of the period of time during which the patient was or is expected to be restrained, and
(iii) a description of the behaviour that required the patient to be restrained or to continue to be restrained.
Emergency medical treatment
Emergency medical treatment may be given to a patient, without consent, if there is imminent and serious danger to the patient's life or to a limb or vital organ and the patient,
(a) in the opinion of a physician, is not mentally competent; or
(b) is otherwise unable to give consent.
REVIEW OF
TREATMENT DECISIONS
Application by physician
Application to review board by physician
The attending physician of a patient who is not mentally competent may apply to the review board for an order authorizing specified psychiatric and related medical treatment to be given to the patient, if the person authorized to make treatment decisions on the patient's behalf under subsection 28(1) has refused to consent to the treatment.
Content of application
An application under subsection (1) must be accompanied by statements signed by the attending physician and a psychiatrist, each stating that he or she has examined the patient and is of the opinion, each stating his or her reasons, that
(a) the patient's mental condition will or is likely to be substantially improved by the specified treatment;
(b) the patient's mental condition will not improve or is not likely to improve without the specified treatment;
(c) the anticipated benefit from the specified treatment outweighs the risk of harm to the patient; and
(d) the specified treatment is the least restrictive and least intrusive treatment that meets the criteria set out in clauses (a), (b) and (c).
The review board may, by order, authorize the specified treatment to be given to the patient if it is satisfied that the criteria set out in clauses (2)(a) to (d) have been met.
Regard for patient's expressed wishes
Before it makes an order under this section, the review board shall consider any wishes the patient expressed about the treatment while mentally competent, and whether or not the patient would now, given the circumstances, alter those wishes if competent to do so.
Terms and conditions
An order under this section may include terms and conditions and may specify the period of time during which it is effective.
No treatment if order appealed
If an order authorizing treatment under this section is appealed to the court, the treatment must not be administered before the appeal is concluded unless the court, on application, makes an interim order authorizing the treatment.
Application by patient
Application to review board by patient
If a person authorized to make treatment decisions on a patient's behalf under subsection 28(1) makes a decision that is contrary to wishes the patient expressed in a health care directive, the patient may apply to the review board for an order requiring his or her attending physician and the facility to comply with those wishes in administering treatment.
Criteria for order
The review board must make an order under subsection (1) unless
(a) it is satisfied that the treatment decision made contrary to wishes the patient expressed in a health care directive is in the patient's best interests, using the criteria set out in subsection 28(5); and
(b) it has considered all the relevant circumstances, including whether or not the patient would now, given the circumstances, alter his or her expressed wishes if competent to do so.
Subsections 30(5) and (6) apply with necessary modifications to an order made under this section.
INFORMATION AND RECORDS
PATIENT'S RIGHT TO INFORMATION
General information to patients on admission
As soon as reasonably possible after a patient is admitted to a facility, the medical director shall give the patient a written statement of the following:
(a) the functions of the review board, including how and under what circumstances an application can be made;
(b) the patient's right to be provided with reasonable means to communicate with others without the communication being examined, censored or withheld;
(c) the patient's right to communicate with the Ombudsman and, if the patient is a child, the Advocate for Children and Youth; and
(d) the patient's right to retain and instruct counsel.
Posting the information
The medical director shall ensure that the information described in subsection (1) is prominently displayed in all wards of the facility.
Duty to inform patient on admission and change of status
When a patient is admitted to a facility, or a renewal certificate is completed for the patient, or the patient's status is changed, the medical director shall promptly inform the patient in writing of that fact. The medical director shall also inform the patient of the patient's right to apply to the review board for a review of his or her status, if involuntary, and of the right to retain and instruct counsel.
Duty to inform treatment decision maker
If the patient is not mentally competent to understand the information described in subsection (1), the medical director shall also
(a) give the information in writing to the person authorized to make treatment decisions on the patient's behalf under subsection 28(1); and
(b) give the information to the patient as soon as the patient regains the mental competence to understand or requests the information.
Duty of medical director to inform others
Unless a patient who is mentally competent objects, whenever a patient is admitted to a facility, or a renewal certificate is completed for the patient, or the patient's status is changed, the medical director shall inform the person referred to in subsection 28(1) of that fact.
If language difficulty
The medical director shall make every reasonable effort to give a patient in a facility information in a language the patient understands.
PATIENT'S RIGHT TO EXAMINE
CLINICAL RECORD
In this section and in sections 35 to 38,
"maintain", in relation to a clinical record, means to have custody or control of the record; (« tenir »)
"patient" includes a former patient. (« malade »)
Patient's right to examine and copy clinical record
Subject to subsection (4), a patient has a right, on request, to examine and receive a copy of his or her clinical record.
How to make a request
A request must be made in writing to the medical director of the facility that maintains the clinical record.
Application to review board
If the medical director wishes to refuse access to all or part of the clinical record, he or she shall, within seven days after receiving the request, apply to the review board for an order permitting all or part of the clinical record to be withheld.
Order by review board
On receiving an application under subsection (4), the review board shall review the clinical record and order the medical director to permit the patient to examine and receive a copy of it, unless the review board is of the opinion that
(a) disclosure of the record could reasonably be expected to endanger the mental or physical health or the safety of the patient or another person;
(b) disclosure of the record could reasonably be expected to identify a third party, other than a person who is providing or has provided health care to the patient, who supplied the information in confidence under circumstances in which confidentiality was reasonably expected; or
(c) disclosure of the record would reveal information about another person's health or health care history and the disclosure would be an unreasonable invasion of that person's privacy.
Severance of information
If the review board is of the opinion that disclosure of part of the clinical record is likely to have a result mentioned in subsection (5), it shall, to the extent possible, sever the information that cannot be examined or copied and make an order permitting the patient to examine and receive a copy of the remainder of the clinical record.
The patient and the medical director are each entitled to make submissions to the review board before it makes its decision, and each is entitled to do so in the absence of the other.
PATIENT'S RIGHT TO
CORRECT CLINICAL RECORD
Right to request a correction
For purposes of accuracy or completeness, a patient may request the medical director of a facility that maintains the patient's clinical record to correct any part of the record that the patient has a right to examine and copy under this Act.
A request must be in writing.
Medical director's response
As promptly as required in the circumstances but no later than 30 days after receiving a request, the medical director shall do one of the following:
(a) make the requested correction by adding the correcting information to the clinical record in such a manner that it will be read with and form part of the record or be adequately cross-referenced to it;
(b) inform the patient in writing if the clinical record no longer exists or cannot be found;
(c) if the medical director does not maintain the clinical record, so inform the patient in writing and provide him or her with the name and address, if known, of the facility that maintains it;
(d) inform the patient in writing of his or her refusal to correct the record as requested, the reason for the refusal, and the patient's right to add a statement of disagreement to the record.
Refusal to correct
A medical director who refuses to make a correction that is requested under this section shall
(a) permit the patient to file a concise statement of disagreement stating the correction requested and the reason for the correction; and
(b) add the statement of disagreement to the clinical record in such a manner that it will be read with and form part of the clinical record or be adequately cross-referenced to it.
Notifying others of a correction or statement of disagreement
When a medical director makes a correction or adds a statement of disagreement under this section, he or she shall, if practicable, notify any other person or organization to whom the clinical record has been disclosed during the year before the correction was requested about the correction or statement of disagreement.
No fee shall be charged in connection with a request for a correction made under this section.
CONFIDENTIALITY
OF CLINICAL RECORDS
Disclosure prohibited without patient's consent
Except as permitted under subsection (2), no medical director, and no person on the staff of a facility or otherwise involved in the assessment or treatment of a patient, shall disclose information in a clinical record without first obtaining
(a) the patient's consent, if the patient is mentally competent;
(b) the consent of the patient's guardian, if the patient is a minor who is not mentally competent; or
(c) the consent of the patient's committee of both property and personal care.
Disclosure without patient's consent
The medical director of a facility in which a clinical record is maintained may disclose information in the record without the patient's consent or consent on the patient's behalf under subsection (1), if the disclosure is
(a) to a person on the staff of the facility or a student directly involved in the patient's care, for the purpose of assessing or treating the patient;
(b) to the medical director of another facility or other health facility currently involved in the patient's direct care, on that person's written request;
(c) to a person who is providing health care to the patient, to the extent necessary to provide that care, unless the patient, while competent, has instructed the medical director not to make the disclosure;
(d) to the person authorized to make treatment decisions on the patient's behalf under subsection 28(1), for the sole purpose of making treatment decisions on the patient's behalf;
(e) to any person, if the medical director reasonably believes that the disclosure is necessary to prevent or lessen
(i) a risk of harm to the health or safety of a minor, or
(ii) a risk of serious harm to the mental or physical health or the safety of the patient or another person;
(f) to the review board for the purpose of a hearing under Part 7;
(g) to the director for the purpose of carrying out his or her duties under this Act;
(h) to a Review Board established or designated for Manitoba under Part XX.1 of the Criminal Code (Canada);
(i) to a person for research purposes, if the medical director determines that
(i) the research is of sufficient importance to outweigh the intrusion into privacy that would result from the disclosure,
(ii) the research purpose cannot reasonably be accomplished unless the information is provided in a form that identifies or may identify the patient,
(iii) it is unreasonable or impractical for the person proposing the research to obtain the patient's consent,
(iv) the research project contains reasonable safeguards to protect the confidentiality of the information and procedures to destroy the information or remove all identifying information at the earliest opportunity consistent with the purposes of the project,
(v) the research project has been approved by a research review committee acceptable to the medical director, and
(vi) the person proposing the research project has entered into an agreement with the facility in which the person agrees not to publish the information requested in a form that could reasonably be expected to identify the patient, to use the information solely for the purposes of the project, and to ensure that the project complies with the safeguards described in subclause (iv);
(j) required for the planning, delivery, evaluation or monitoring of a program that relates to providing health care to the patient or the payment for health care;
(k) required for the purpose of peer review by the standards committee of the facility, or to a medical staff committee established to study or evaluate medical practice in the facility;
(k.1) required by a critical incident review committee established under Part 4.1 of The Regional Health Authorities Act;
(l) to a body with statutory responsibility for the discipline of members of a health profession or for the quality or standards of professional services provided by members of a health profession;
(m) if the patient has died,
(i) to the executor or administrator of the patient's estate, or
(ii) to a relative of the patient if the medical director is of the opinion that disclosure would not be an unreasonable invasion of the deceased patient's privacy and would not endanger the mental or physical health of another person;
(n) to a lawyer acting on behalf of the facility or on behalf of a person on the staff of the facility.
Limit on amount of information disclosed
Every disclosure under subsection (2) must be limited to the minimum amount of information necessary to accomplish the purpose for which the information is disclosed.
Clinical records kept confidential
Notwithstanding anything in this Act or any other law, when information from a clinical record is used as evidence in an investigatory or disciplinary proceeding by a body referred to in clause (2)(k) or (l),
(a) the information, except by order of a court, must be treated as private and confidential and not be disclosed or made available to any person other than the parties to the proceeding, the members of the body conducting the proceeding and their legal advisors and assistants;
(b) the proceeding, or the part of it that concerns the information, must be held in private; and
(c) on completion of the proceeding, the clinical record must be returned without delay to the medical director.
Definition of "health profession"
In this section, "health profession" means the practice of medicine under The Regulated Health Professions Act and the practice of any other profession that is prescribed by the regulations.
DISCLOSURE OF CLINICAL RECORD UNDER
SUBPOENA OR COURT ORDER
Disclosure under a subpoena or court order
Subject to subsections (2) to (4), the medical director shall disclose information in a patient's clinical record when required to do so by a subpoena, order or direction of a court.
Statement by attending physician
When a patient's attending physician states in writing that he or she is of the opinion that disclosure of information in the patient's clinical record in response to a subpoena, order or direction of the court could reasonably be expected to endanger the mental or physical health or the safety of the patient or another person, the medical director shall not disclose the information except in accordance with an order of the court.
Hearing by the court
Before making an order requiring disclosure, the court shall hold a hearing, after first giving notice of the hearing to the patient's attending physician.
Matters to be considered by court
On a hearing, the court shall consider whether or not disclosure of the information could reasonably be expected to endanger the mental or physical health or the safety of the patient or another person. For that purpose, the court may examine the clinical record, and, if satisfied that such a result is likely, it shall not order disclosure unless it is satisfied that to do so is essential in the interests of justice.
Clinical record to be returned
When information in a clinical record is required to be disclosed by an order of the court under this section, the clerk of the court in which the clinical record is admitted in evidence, or, if it is not admitted, the person to whom the clinical record is provided, shall return it to the medical director immediately after the matter is concluded.
NO DISCLOSURE OF INFORMATION BY EMPLOYEES OR OTHERS
No disclosure by employees or others
No person shall disclose, in an action or proceeding in any court or before any body, any knowledge or information about a patient obtained while assessing or treating, or assisting in assessing or treating, the patient in a facility, or in the course of employment in the facility, except with the patient's consent or consent on the patient's behalf under subsection 36(1).
Subsection (1) does not apply
(a) if the knowledge or information relates to information in a clinical record that has been admitted into evidence under section 37;
(b) to a proceeding before the review board, the Review Board established under Part XX.1 of the Criminal Code (Canada), or a committee or body referred to in clause 36(2)(k) or (l); or
(c) to a proceeding before a court or any other body begun by or on behalf of a patient that relates to the patient's assessment or treatment in a facility.
ACTS THAT DO NOT APPLY
Acts that do not apply
The Freedom of Information and Protection of Privacy Act and The Protecting and Supporting Children (Information Sharing) Act do not apply to a clinical record to which this Act applies.
CERTIFICATE OF INCOMPETENCE
TO MANAGE PROPERTY
Determining competence to manage property
As soon as reasonably possible after a person is admitted to a facility, the attending physician shall determine if the patient is competent to manage his or her property.
In determining a patient's competence to manage property, the physician shall consider all the relevant circumstances, including the following:
(a) the nature and severity of the patient's mental condition;
(b) the effect of the patient's mental condition on his or her ability to manage property;
(c) the nature of the patient's property and any arrangements known to the physician that the patient made, while competent, for its management;
(d) whether or not decisions need to be made on the patient's behalf about that property.
Certificate of incompetence
A physician who is of the opinion that a patient is not competent to manage his or her property shall complete a certificate of incompetence, with reasons for the opinion, and file it with the medical director.
On receiving a certificate under subsection (3), the medical director shall, if satisfied that the physician's opinion is supported by the reasons given,
(a) send a copy to the Public Guardian and Trustee, the patient and the patient's nearest relative; and
(b) inform the patient and his or her nearest relative, in writing, as to the following:
(i) the effect of the certificate,
(ii) the right to apply to the review board to cancel the certificate,
(iii) that the Public Guardian and Trustee should be informed if the patient has given an enduring power of attorney.
Effect of certificate: Public Guardian and Trustee as committee
On receiving a certificate of incompetence, or on being notified by a physician that one is being sent, the Public Guardian and Trustee becomes committee of both property and personal care for the patient, unless the patient already has another committee appointed under this Act.
Powers and duties of Public Guardian and Trustee
As committee, the Public Guardian and Trustee has the following powers:
(a) with respect to property, the same powers as a committee of property has under Divisions 3 and 5 of Part 9;
(b) with respect to personal care, only the power described in clause 63(2)(d) to commence, continue, settle or defend any claim or legal proceeding that relates to the person.
Duration of certificate
A certificate of incompetence continues in effect until the patient is discharged or until one of the following occurs:
(a) the certificate is cancelled under section 43 or by the review board under Part 7;
(b) the court makes an order under Part 9 appointing someone other than the Public Guardian and Trustee as the patient's committee;
(c) in a case where the patient has given an enduring power of attorney, the Public Guardian and Trustee gives notice under subsection 67(5) that the person appointed as attorney may act under the power.
Cancellation if patient regains competence
The attending physician of a patient for whom a certificate of incompetence has been filed shall periodically review the patient's condition to determine if the patient has regained the competence to manage his or her property. If so, the physician shall file with the medical director a statement of his or her opinion, with reasons, that the patient has regained the competence to manage his or her property.
On receiving a statement under subsection (1), the medical director shall, if satisfied that the physician's opinion is supported by the reasons given, cancel the certificate and notify the patient, the patient's nearest relative and the Public Guardian and Trustee of the cancellation.
UNAUTHORIZED ABSENCE
FROM A FACILITY
Patient absent without permission
If a patient is absent from a facility without the attending physician's permission, the medical director may issue an order to have the patient taken into custody and returned to the facility by a peace officer, and the order is sufficient authority for a peace officer to do so.
Requirements for voluntary patient
An order under subsection (1) must not be issued for a voluntary patient unless there are reasonable and probable grounds for concern, documented by the facility's treatment staff, that the patient
(a) may constitute a danger to himself or herself or to another person; or
(b) may suffer substantial mental or physical deterioration if not detained in a facility.
Examination on return
A physician shall promptly examine a voluntary patient who has been returned under subsection (1) to determine whether the patient's status should be changed to that of an involuntary patient under section 6.
TRANSFER OF INVOLUNTARY PATIENTS
OUT OF AND INTO MANITOBA
Transfer of involuntary patients out of Manitoba
The director may in writing authorize the transfer of an involuntary patient to another jurisdiction if
(a) hospitalization has been arranged in the other jurisdiction;
(b) the director is satisfied that
(i) the patient has come or been brought into Manitoba from elsewhere and the patient's hospitalization is the responsibility of the other jurisdiction, or
(ii) it would be in the patient's best interests to be hospitalized in the other jurisdiction; and
(c) the patient consents to the transfer or, if the patient is not mentally competent to consent, the person authorized to make treatment decisions on the patient's behalf under subsection 28(1) consents.
Transfer of involuntary patient into Manitoba
When an involuntary patient is in a psychiatric facility in another jurisdiction, the director may in writing authorize the patient's transfer to a facility in Manitoba as an involuntary patient if the director is satisfied that
(a) Manitoba is responsible for the patient's hospitalization; or
(b) it would be in the patient's best interests to be in a facility in Manitoba.
To provide a patient with psychiatric treatment that is less restrictive and less intrusive to the patient than being detained in a facility, a psychiatrist may issue a leave certificate that allows the patient to live outside the facility.
Patient for whom a leave certificate may be issued
A leave certificate may be issued for a patient who, during the previous two-year period,
(a) has been a patient in a facility for at least 60 days, whether the days are consecutive or not;
(b) has been a patient in a facility on three or more separate occasions; or
(c) has been the subject of a previous leave certificate.
Collaborative development of treatment plan
A leave certificate may be issued only if
(a) the patient, the patient's representative, if any, the patient's attending psychiatrist and other health professionals and persons involved in the patient's care or treatment, develop a treatment plan for the patient that will form the basis of the leave certificate; and
(b) the patient consents to its issuance and to the proposed treatment plan or, if the patient is not mentally competent to consent, if the person authorized to make treatment decisions on the patient's behalf under subsection 28(1) consents.
Patient to be informed
The patient's attending psychiatrist shall inform the patient of his or her right to have a representative involved in the development of a treatment plan under clause (3)(a).
Criteria for issuing a leave certificate
A psychiatrist may issue a leave certificate for a patient referred to in subsection (2) if he or she has examined the patient during the 72-hour period before the certificate is issued and is of the opinion, based on the examination and any other relevant facts communicated to the psychiatrist, that
(a) the patient is suffering from a mental disorder for which he or she needs continuing treatment or care and supervision while living in the community;
(b) if the patient does not receive continuing treatment or care and supervision while living in the community, he or she is likely, because of the mental disorder, to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration;
(c) the patient is capable of complying with the requirements for treatment or care and supervision contained in the leave certificate; and
(d) the treatment or care and supervision described in the leave certificate exist in the community and can and will be provided in the community.
Content of certificate
A leave certificate must be in the prescribed form and must indicate
(a) the facts on which the psychiatrist formed the opinion that the criteria set out in subsection (5) are met;
(b) a description of the treatment or care and supervision to be provided to the patient;
(c) a description of the patient's obligations under subsection (7); and
(d) the date of the examination.
A patient for whom a leave certificate is issued shall
(a) attend appointments with the attending psychiatrist, or with any other health professional referred to in the certificate, at the times and places scheduled from time to time; and
(b) comply with the psychiatric treatment described in the certificate.
Notice to patient and others
A psychiatrist who issues a leave certificate shall give a copy of it to
(b) any person authorized to make treatment decisions on the patient's behalf under subsection 28(1) who consented to the issuance of the certificate under subsection (3);
(c) the medical director;
(d) the director; and
(e) any other health professional involved in the treatment plan.
Duration of certificate — 6 months
The period of leave under a certificate may not be more than six months but may, if the requirements of clauses (3)(a) and (b) and subsection (5) are met, be extended for additional periods of not more than six months each.
Status of patient on leave
A patient for whom a leave certificate is issued has the status of a voluntary patient.
Review of leave certificate
At the request of the patient or a person involved in the patient's care or treatment, the attending psychiatrist shall
(a) review the patient's condition to determine if the criteria set out in clauses 46(5)(a) and (b) continue to be met; or
(b) review the requirements for treatment or care and supervision contained in the leave certificate.
If criteria are no longer met
If the psychiatrist determines that the criteria are no longer met, he or she shall revoke the leave certificate and notify the patient in writing that he or she may live in the community without being subject to the leave certificate. In addition, the attending psychiatrist shall inform the persons referred to in subsection 46(8) of the revocation.
If requirements need amendment
If the psychiatrist determines that the requirements of the leave certificate should be amended, he or she shall amend the certificate and notify the patient, in writing, and the persons referred to in subsection 46(8) of the amendment.
Cancellation of leave certificate
A patient's attending psychiatrist may, by filing a cancellation certificate with the medical director, cancel a leave certificate if he or she believes on reasonable grounds that
(a) because of the patient's condition, the patient
(i) may constitute a danger to himself or herself or to another person, or
(ii) may suffer substantial mental or physical deterioration if he or she remains in the community; and
(b) the patient has failed to comply with the psychiatric treatment described in the leave certificate or failed to attend the required appointments after reasonable efforts have been made to
(i) locate the patient,
(ii) inform the patient of the failure or, if the patient is not mentally competent, inform the person authorized to make treatment decisions on the patient's behalf under subsection 28(1),
(iii) inform the patient of the possible issuance of a cancellation certificate, which would result in the patient's return to the facility for assessment, and
(iv) provide assistance to the patient to comply with the requirements of the leave certificate.
Return to facility
A cancellation certificate issued under this section is sufficient authority, for 30 days after it is signed, for a peace officer to take the patient named in it into custody and then promptly to the facility where the psychiatrist who completed the cancellation certificate attends.
Assessment on return
Promptly on the patient's return, the attending psychiatrist shall examine the patient to determine whether
(a) he or she should be admitted to the facility in accordance with Part 2 or 3;
(b) another leave certificate should be issued for the patient; or
(c) the patient should be discharged from the facility without being subject to a leave certificate.
MENTAL HEALTH REVIEW BOARD
Mental Health Review Board
There shall be a Mental Health Review Board to hear and consider applications under this Act.
Roster of members
The Lieutenant Governor in Council shall appoint a roster of psychiatrists, lawyers, and persons who are not psychiatrists or lawyers as members of the review board.
The review board must sit in panels of three members and each panel is to be composed of
(a) a lawyer who is to be chairperson of the panel;
(b) a psychiatrist; and
(c) a member who is neither a lawyer nor a psychiatrist.
Assigning members to panel
The minister, or a person designated by the minister for the purpose, shall assign members to sit on the various panels of the review board from the roster appointed by the Lieutenant Governor in Council.
A quorum for a panel of the review board is the three members referred to in subsection (3).
A decision of a majority of the members of a panel is the decision of the review board.
Panel acts as the board
A reference in this Act to the review board means a panel of the review board.
Persons prohibited as members
A member of the review board is not eligible to sit on a panel of the review board for an application relating to a person if he or she
(a) is the person's spouse;
(a.1) is the person's common-law partner;
(b) is related to the person by blood or marriage;
(b.1) is connected to the person by common-law relationship;
(c) is a psychiatrist or physician who is treating or has treated the person;
(d) is an officer, employee or staff member of the facility in which the person is being treated;
(e) is a lawyer who is acting for or has acted for the person or for the facility in which the person is being treated;
(f) is a member of a law firm who is acting for the person or for the facility in which the person is being treated; or
(g) is a lawyer who is acting for or has acted for a party opposite in interest to the person in any proceeding in which the person was a party.
Meaning of connected by common-law relationship
Persons are connected by common-law relationship if one is the common-law partner of a person who is connected by blood relationship to the other.
The following applications may be made to the review board:
(a) an application by a patient to cancel an involuntary admission certificate filed under section 18 or a renewal certificate filed under section 21;
(b) an application by a patient to review a physician's opinion under section 27 that the patient is not mentally competent to make treatment decisions;
(c) an application by a patient under section 31 for an order requiring his or her attending physician and the facility to comply with wishes the patient expressed in a health care directive when administering treatment;
(d) an application by a patient to review a physician's opinion under section 40 that the patient is not competent to manage property;
(e) an application by a patient to review the extension of a leave certificate under section 46;
(f) an application by a patient to review the cancellation of a leave certificate under section 48;
(g) an application by a physician under section 30 for an order authorizing specified treatment to be given to a patient;
(h) an application by a medical director under section 34 for an order permitting all or part of a patient's clinical record to be withheld from the patient.
Application on patient's behalf
An application may be made to the review board by a person on a patient's behalf.
Application in prescribed form
An application must be in the prescribed form.
Deemed application for long term patients
An involuntary patient is deemed to have applied to the review board under clause (1)(a) on the filing of the third renewal certificate, and annually thereafter if the patient has remained an involuntary patient during that period.
Deemed application for patients on leave
A patient who is the subject of a leave certificate under section 46 is deemed to have applied to the review board under clause (1)(e) when the certificate is extended for the second time and annually thereafter.
Determination to be made as of the day of the hearing
In considering an application, it is the responsibility of the review board to determine whether or not the criteria or requirements of this Act continue to be met in relation to the patient at the time of the hearing.
The parties to an application are the patient, any person who has applied on the patient's behalf, and the patient's attending physician. The medical director is also entitled to be a party.
Treatment decision maker a party
In the case of an application under section 30 or 31 to review a treatment decision made on a patient's behalf, the person who made the treatment decision is also a party.
Board may add parties
The review board may add as a party any person who in its opinion has a substantial interest in the application.
Each party may be represented by counsel or an agent at the hearing.
There shall be a hearing in every proceeding before the review board.
Notice of hearing
The review board shall give seven days written notice of the date, time and place of the hearing to the parties and the medical director, and to any person who in its opinion has a substantial interest in the application.
When hearing must begin
A hearing must begin as soon as reasonably possible after an application is received, and in any case within the period of time prescribed by regulation.
Record of hearing
A hearing must be recorded, and copies of documents filed in evidence or a transcript of the oral evidence are to be given only to the parties on the same terms as in the court.
A hearing must be held in private, but the review board may permit the public to be present during all or part of a hearing if the patient consents and the board is of the opinion that there is no risk of serious harm or injustice to any person.
Parties may examine evidence
Before a hearing, each party shall be given an opportunity to examine and copy any recorded information that will be produced and any report the contents of which will be given in evidence at the hearing.
Parties may present evidence
Each party may present any evidence that the review board considers relevant and may question witnesses.
Powers and duties of the board
The review board shall inform itself fully of the facts concerning each application for which a hearing is held, and for this purpose it may require the attendance of witnesses and the production of documents in addition to the witnesses called and documents produced by the parties, and it has the powers of a commissioner appointed under Part V of The Manitoba Evidence Act.
For the purpose of a hearing, the review board may arrange for the patient to be examined by a second psychiatrist.
After a hearing, the review board may make an order as to the following:
If the application is to cancel an involuntary admission certificate or a renewal certificate, the review board may cancel the certificate and change the patient's status to that of a voluntary patient, or may refuse to do so.
If the application is to review a physician's opinion that the patient is not mentally competent to make treatment decisions, the review board may cancel the certificate of incompetence filed under section 27, or may refuse to do so.
If the application is to order a patient's attending physician and the facility to comply with wishes the patient expressed in a health care directive when administering treatment, the review board may order the physician and the facility to comply with the patient's wishes, or may refuse to do so in the circumstances described in section 31.
If the application is to review a physician's opinion that a patient is not competent to manage his or her property, the review board may cancel the certificate of incompetence filed under section 40, or may refuse to do so.
If the application is to review a leave certificate, the review board may revoke the leave certificate and allow the patient to live in the community without being subject to the leave certificate, or may refuse to do so.
If the application is to review the cancellation of a leave certificate, the review board may confirm the cancellation or may refuse to do so.
If the application is to authorize specified treatment under section 30, the review board may make an order under that section or may refuse to do so.
If the application is to withhold all or part of a patient's clinical record under section 34, the review board may make an order under that section or may refuse to do so.
Notice of order and right to appeal
The review board shall give the patient and other parties a copy of its order and inform them of their right to appeal it to the court.
The review board shall provide written reasons for its order.
Standard of proof
In a hearing before the review board or the court under this Part, the standard of proof is proof on the balance of probabilities.
Patient deemed able to instruct counsel
A patient is deemed to have the capacity to instruct counsel for the purpose of a hearing before the review board or the court under this Part.
APPEAL TO COURT
Appeal to court
A party to an application before the review board may appeal an order of the review board to the court on a question of law or fact or both.
Time for appeal
An appeal must be made within 30 days after the party receives a copy of the review board's order.
Powers of court on appeal
On hearing an appeal, the court may
(a) make any order that in its opinion ought to have been made;
(b) quash, vary or confirm the order of the review board;
(c) refer the matter back to the review board for further consideration in accordance with any direction of the court.
Appeal heard in private
An appeal under this section shall be heard in private unless the Court directs otherwise.
COMMITTEESHIP WITHOUT
A COURT ORDER
PHYSICIAN'S CERTIFICATE OF INCAPACITY
Physician's certificate of incapacity
When a physician examines a patient who is about to be discharged from a facility, or a person who is not a patient in a facility, and is of the opinion that
(a) because of a mental condition, the person is incapable of managing his or her property or of personal care; and
(b) the incapacity is not due exclusively to a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act;
the physician may complete a certificate of incapacity, with reasons for the opinion.
In forming an opinion under subsection (1), the physician shall consider all the relevant circumstances, including the following:
(a) the nature and severity of the person's mental condition;
(b) the effect of the person's mental condition on his or her ability to manage property and capacity for personal care;
(c) the nature of the person's property and personal care requirements and any arrangements known to the physician that the person made, while competent, for the management of property and the appointment of a proxy; and
(d) whether or not decisions need to be made on the person's behalf about that property or with respect to personal care.
Certificate of incapacity
A physician who completes a certificate of incapacity shall file it with the director as soon as reasonably possible but not later than 30 days after the person is examined.
Review of certificate
The director shall review each certificate filed under subsection (3).
Director may require information
To assist the director in deciding whether to give notice of an intent to issue an order under subsection (6), the director may require any person with relevant information about the person who is the subject of the certificate of incapacity to provide that information to the director.
Notice of intent to issue an order
If the director is satisfied from a review of the certificate and any information provided under subsection (5) that a committee should be appointed, he or she shall inform the person who is the subject of the certificate of incapacity, and his or her proxy and nearest relative, of the following:
(a) that the director intends to issue an order appointing the Public Guardian and Trustee as committee of both property and personal care;
(b) what the effect of such an order will be; and
(c) that the person and his or her proxy and nearest relative may make a written objection to the director within seven days after receiving the notice.
Director to consider any objections
The director shall consider any objection received and review all of the information that the person or someone on his or her behalf, and the person's proxy or nearest relative, wishes to provide as to why an order should not be issued.
ORDER APPOINTING PUBLIC GUARDIAN
AND TRUSTEE AS COMMITTEE OF
BOTH PROPERTY AND PERSONAL CARE
Order appointing Public Guardian and Trustee as committee
If, after considering any objection and any additional information, the director is satisfied that it would be in the best interests of the person, he or she shall make an order appointing the Public Guardian and Trustee as committee of both property and personal care for that person.
Before making an order, the director must be satisfied that the person's incapacity is not due exclusively to a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act.
Notice to the Public Guardian and Trustee
The director shall send the order and a copy of the certificate of incapacity completed by the physician to the Public Guardian and Trustee.
Notice to person and person's proxy
In addition, the director shall send a copy of the order and certificate to the person and the person's proxy and nearest relative, and shall inform them of the right to apply to the court to cancel the order under section 62. The notice may be sent by ordinary first class mail, and is deemed to have been received five days after it is sent.
Duration of order
On receiving an order under this section, the Public Guardian and Trustee becomes the committee of both property and personal care for the person until the court orders otherwise under section 62 or 62.1, or the order is cancelled under section 66 or subclause 67(5)(b)(ii).
Order cancelled if substitute decision maker appointed
An order under this section is deemed to be cancelled if a substitute decision maker is subsequently appointed for the incapable person under The Vulnerable Persons Living with a Mental Disability Act.
If the director believes on reasonable grounds that a person for whom a certificate of incapacity has been completed under subsection 60(1) needs a committee on an urgent basis because
(a) there is immediate danger of death or serious harm or deterioration to the physical or mental health of the person, or of serious loss to his or her property; and
(b) the person needs decisions to be made on his or her behalf to prevent that danger;
the director may make an order appointing the Public Guardian and Trustee as committee under this section without giving notice under subsection 60(6) or considering objections under subsection 60(7).
Application to court to cancel order
A person who is notified under subsection 61(4) that the Public Guardian and Trustee has been appointed as committee, or any other person with leave of the court, may apply to the court for an order
(a) cancelling the order; or
(b) appointing a person other than the Public Guardian and Trustee as committee under Part 9.
When application must be made
The application must be made within 30 days after the order is received, or within such further period as the court allows.
Notice to the Public Guardian and Trustee
Notice of the application must be served on the director and the Public Guardian and Trustee at least 10 days before the application is heard.
Public Guardian and Trustee's role when application pending
After receiving notice of an application, the Public Guardian and Trustee shall not administer the person's property pending the court's decision, except to the extent necessary to
(a) gather in the assets and preserve the property;
(b) pay debts; and
(c) provide for the person's maintenance and that of his or her family.
On hearing the application, the court may make any order under this Act that it considers appropriate.
Public Guardian and Trustee may apply to court to cancel order
If the Public Guardian and Trustee has been appointed as the committee under section 61, the Public Guardian and Trustee may apply to the court for an order
(a) cancelling the order; or
(b) appointing a person other than the Public Guardian and Trustee as the committee under Part 9.
Notice to the director
Notice of the application must be served on the director at least 10 days before the application is heard.
On hearing the application, the court may make any order under this Act that it considers appropriate.
POWERS OF PUBLIC GUARDIAN
AND TRUSTEE
Powers of Public Guardian and Trustee as committee
As committee of both property and personal care under section 61, the Public Guardian and Trustee has the following powers, without reference to the court:
(a) with respect to property, the same powers as a committee of property has under Division 3 of Part 9;
(b) with respect to personal care, the powers described in subsections (2) to (5) and section 64;
(c) the powers under Division 5 of Part 9.
Powers re personal care
The Public Guardian and Trustee may, for a person for whom an order is issued under section 61,
(a) determine where and with whom the incapable person shall live, either temporarily or permanently;
(b) subject to subsections (3) and (4), consent or refuse to consent to medical or psychiatric treatment or health care on the incapable person's behalf, if a physician informs the Public Guardian and Trustee that the person is not mentally competent to make treatment decisions using the criteria set out in subsection 27(2);
(c) make decisions about daily living on the incapable person's behalf; and
(d) commence, continue, settle or defend any claim or legal proceeding that relates to the person.
Limitation re treatment and health care
The Public Guardian and Trustee may not give or refuse consent to treatment or health care under clause (2)(b) if the incapable person, when capable, made a health care directive that appoints a proxy to exercise that power or expresses a decision of the incapable person about the proposed treatment or health care.
Treatment decisions: best interests
When exercising the power conferred by clause (2)(b), the Public Guardian and Trustee shall do so in accordance with the person's best interests as described in subsections 28(4) and (5).
When Public Guardian and Trustee are nearest relative
For greater certainty, nothing in clause (2)(b) affects the Public Guardian and Trustee's right to make treatment decisions under Part 4 on behalf of a patient in a facility when the Public Guardian and Trustee is acting as the patient's nearest relative.
Limitations on personal care powers
Sections 93 to 96 apply to the Public Guardian and Trustee when acting as committee under this Part.
Public Guardian and Trustee may intervene in emergency
As committee under section 61, the Public Guardian and Trustee may take any emergency intervention action that is necessary to protect the incapable person, including removing him or her to a place of safety, if the Public Guardian and Trustee believes on reasonable grounds that
(a) the incapable person is or is likely to be abused or to suffer neglect; and
(b) there is immediate danger of death or serious harm or deterioration to the physical or mental health of the person.
Authority to enter
When taking action under this section, the Public Guardian and Trustee may enter any place and take any steps necessary to protect the incapable person, and may use reasonable force to do so, if required.
Peace officer to assist
The Public Guardian and Trustee may request the assistance of a peace officer when taking action under this section, and the peace officer shall provide such assistance.
Court order not required
The Public Guardian and Trustee may take action under this section without a court order.
As committee under section 61, the Public Guardian and Trustee is entitled to be provided with all of the incapable person's personal and financial records, whether made before or after the Public Guardian and Trustee becomes committee, and every person who has custody or control of such records shall provide them to the Public Guardian and Trustee on request.
REVIEW OF
PERSON'S CONDITION
Physician to review person's condition
At the director's request, a physician shall review the condition of a person for whom an order has been made under section 61 and, if appropriate, file with the director a statement of his or her opinion, with reasons, that the person is no longer incapable.
Review at patient's request
In addition, a physician may review the person's condition under subsection (1) at any time at the request of the person or his or her proxy or nearest relative.
Review of statement
The director shall review each statement filed under subsection (1).
Director may require information
To assist the director in deciding whether to cancel the certificate of incapacity, the director may require any person with relevant information about the person who is the subject of the certificate to provide that information to the director.
Director to cancel certificate and order
If the director is satisfied from the review of the statement and any information provided under subsection (4), he or she shall cancel the certificate of incapacity and the order appointing the Public Guardian and Trustee as committee, and notify the person, the person's proxy and nearest relative and the Public Guardian and Trustee of the cancellation.
RELATIONSHIP BETWEEN
COMMITTEESHIP AND AN ENDURING
POWER OF ATTORNEY
Power of attorney suspended
The operation of an enduring power of attorney is suspended from the day the Public Guardian and Trustee is appointed committee under section 41 or 61 for the person who gave the power. The suspension continues until the Public Guardian and Trustee makes a decision about the person's best interests under clause (3)(b).
Public Guardian and Trustee to inquire about enduring power of attorney
On becoming a person's committee under section 41 or 61, the Public Guardian and Trustee shall make reasonable enquiries to determine if the person has given a valid enduring power of attorney.
Duty of Public Guardian and Trustee if attorney exists
If the person has given a valid enduring power of attorney, the Public Guardian and Trustee shall
(a) notify the person, the person's nearest relative, and the person appointed as attorney under the power about the effect of this section; and
(b) decide whether the person's best interests would be better served by the Public Guardian and Trustee acting as committee or by the attorney acting under the power.
Attorney acting in good faith
Any action taken by an attorney under an enduring power of attorney after the Public Guardian and Trustee is appointed committee is valid if
(a) the attorney reasonably believed the power of attorney was in effect when the action was taken; and
(b) the action would have been lawful had the Public Guardian and Trustee not been appointed.
Notice of decision
On making a decision under clause (3)(b), the Public Guardian and Trustee shall give notice to the persons referred to in clause (3)(a), and to either the physician who completed the certificate under section 40 or, if the Public Guardian and Trustee was appointed under section 61, to the director, as to the following:
(a) that the Public Guardian and Truste will continue to act as committee, in which case the power of attorney is terminated when the notice is given; or
(b) that the Public Guardian and Trustee will not continue to act as committee, in which case
(i) the attorney may act under the power as of the day the notice is served on the attorney, or any later day specified in the notice or agreed on by the attorney and the Public Guardian and Trustee, and
(ii) the physician shall cancel the certificate of incompetence filed under section 40 or the director shall cancel the order made under section 61.
More than one attorney
For the purpose of subclause (5)(b)(i), if the power of attorney names more than one attorney as joint attorneys or alternate attorneys, and the Public Guardian and Trustee wishes to terminate the power with respect to one of the attorneys ("former attorney") and the other attorney wishes to act under the power, the other attorney may do so and the power with respect to the former attorney is terminated.
Public Guardian and Trustee protected from liability
No action or proceeding may be commenced against the Public Guardian and Trustee respecting a decision made under this section.
Application to court
A person to whom a notice is given under subsection (5), or any other person with leave of the court, may apply to the court for
(a) an order cancelling the termination of the enduring power of attorney, and confirming the attorney's appointment; or
(b) subject to the power, an order appointing another person as the attorney under the power.
Time for application
The application to the court must be made within 30 days after the person receives the notice under subsection (5), or within such further period as the court allows.
Objection, application to court
A person to whom a notice is given under subsection (5) may object to the Public Guardian and Trustee's decision under clause (3)(b) if the person does so in writing and within 30 days after receiving the notice (which is deemed to have been received five days after it has been sent if sent by regular mail). The Public Guardian and Trustee must then apply to the court for an order seeking direction as to whether the person's best interests would be better served by the Public Guardian and Trustee continuing to act as the committee or by the attorney acting under the valid enduring power of attorney.
COMMITTEE OF PERSON
OUTSIDE MANITOBA
Order cancelled if committee appointed in another jurisdiction
On the recommendation of the Public Guardian and Trustee, the director shall cancel an order appointing the Public Guardian and Trustee as committee under section 61 if a committee or a person having similar authority is appointed for the incapable person in another jurisdiction.
Order cancelled if person regains competence outside Manitoba
The director shall cancel an order appointing the Public Guardian and Trustee as committee under section 61 if the incapable person is residing in another jurisdiction and a physician licensed to practice medicine in that jurisdiction completes a statement acceptable to the director which indicates that the person is now capable of managing property and of personal care.
In this Part, "committee" means a committee of property appointed under subsection 75(1) or a committee of both property and personal care appointed under subsection 75(2).
APPLICATION AND APPOINTMENT
Application to court for committee
Any person resident in the province may apply to the court for an order appointing, in respect of another person,
(a) a committee of property; or
(b) a committee of both property and personal care.
Criteria for committee of property
An application for an order appointing a committee of property may be made for a person who,
(a) because of mental incapacity, is incapable of managing his or her property; and
(b) needs decisions to be made on his or her behalf about that property.
Criteria for committee of both property and personal care
An application for an order appointing a committee of both property and personal care may be made for a person who meets the criteria set out in clauses (2)(a) and (b) and, in addition,
(a) is incapable of personal care; and
(b) needs decisions to be made on his or her behalf concerning personal care.
If another person is already committee
An application may be made even though the Public Guardian and Trustee or another person is already committee.
Form of application: required documents
Unless the court directs otherwise, an application under section 71 shall include the following:
(a) an affidavit by the applicant, the proposed committee, or another knowledgeable person, stating
(i) the name and address of the person alleged to be incapable,
(ii) the circumstances that give rise to the application,
(iii) the name and address of the proposed committee,
(iv) the relationship, if any, of the proposed committee to the person,
(v) if the proposed committee is related to the person, the name and address of the person's spouse, common-law partner, children and any other relatives who are of equal or closer relationship than the proposed committee,
(vi) if the proposed committee is not related to the person, the name and address of the person's spouse, common-law partner, children, parents and siblings,
(vii) the proposed committee's consent to act as committee,
(viii) evidence, including age, showing the proposed committee's capacity to act, and
(ix) the value of the person's property;
(b) if the person alleged to be incapable is competent to consent, a signed consent from that person to the appointment of the proposed committee and to dispensing with security under section 77;
(c) a signed consent from each person mentioned in subclause (a)(v) or (vi) to the appointment of the proposed committee and to dispensing with security under section 77;
(d) affidavits by at least two physicians describing the mental condition of the person alleged to be incapable.
Notice of application
Unless the court directs otherwise, at least 10 days before an application is heard, the applicant shall serve notice of the application, and a copy of the affidavit in clause (1)(a), on
(a) the person alleged to be incapable;
(b) each person mentioned in subclause (1)(a)(v) or (vi) who has not consented under clause (1)(c);
(c) the Public Guardian and Trustee; and
(d) any other person the court requires to be served.
Court may dispense with notice
The court may dispense with the requirement for service on a person referred to in clauses (2)(a) and (b).
Public Guardian and Trustee entitled to be heard
The Public Guardian and Trustee has a right to be heard respecting an application under section 71.
Before making an order appointing a committee, the court may require the person alleged to be incapable to submit to an examination by a physician or a psychiatrist, at a time and place to be directed by the court.
ORDER APPOINTING COMMITTEE
Order appointing committee of property
The court may make an order appointing a committee of property for a person named in an application under subsection 71(2) if it is satisfied that the person,
(a) because of mental incapacity, is incapable of managing his or her property; and
(b) needs decisions to be made on his or her behalf about that property.
Order appointing committee of both property and personal care
The court may make an order appointing a person as committee of both property and personal care for a person named in an application under subsection 71(3) if it is satisfied that the person meets the criteria set out in clauses (1)(a) and (b) and, in addition,
(a) is incapable of personal care; and
(b) needs decisions to be made on his or her behalf concerning personal care.
Court to consider enduring power of attorney
In considering whether a person needs decisions to be made on his or her behalf about property, the court shall have regard to any enduring power of attorney the person has given.
Court to consider health care directive
In considering whether a person needs decisions to be made on his or her behalf concerning personal care, the court shall have regard to whether the person has made a health care directive appointing a proxy.
No order for a vulnerable person
The court shall not make an order appointing a committee for a person whose incapacity is due exclusively to a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act.
Contents of order
An order appointing a committee under this section may
(a) be for a limited period as the court considers appropriate; and
(b) contain any other conditions that the court considers appropriate.
When order takes effect
An order takes effect immediately unless security is required, in which case the order, or the part of it for which security is required, takes effect when the security is provided.
Service of order
A committee appointed by an order under this section shall serve a copy of the order on
(a) the incapable person, unless the court dispenses with service;
(b) each person served with notice of the application under subsection 72(2); and
(c) any other person the court requires to be served.
Costs and expenses
The court may order the costs and expenses of an application under this Division to be paid by a party to the application or out of the property of the person who is or is alleged to be incapable, or partly in one way and partly in another.
Court may delegate power to a master
The court may delegate the power to make an order under this section, and any other power it has under this Part, to a master of the court.
Two or more committees
The court may appoint two or more persons jointly as committees of property, or as committees of both property and personal care.
In the event of the death of a joint committee, the surviving committee may exercise all the powers that were granted jointly.
The court may appoint an alternate committee to act
(a) in the event of the death of the committee; or
(b) during the temporary absence of the committee.
Unless the court orders otherwise, a committee shall provide security, with at least two sureties, in an amount double the value of the incapable person's property.
The security shall be in the form of a bond or other security and be provided on any terms and conditions imposed by the court.
Public Guardian and Trustee need not provide security
This section does not apply if the committee is the Public Guardian and Trustee.
POWERS AND DUTIES OF
COMMITTEES OF PROPERTY
POWERS OF COMMITTEE OF PROPERTY
Power to manage property
A committee of property shall take into his or her custody or control all of the incapable person's property that is subject to the committeeship order and may, subject to this Part and the committeeship order, manage, handle, administer and otherwise deal with the property in the same manner as the incapable person could if he or she were capable.
Duty of others to provide information and deliver property
Any person who has custody or control of property belonging to an incapable person shall
(a) provide the incapable person's committee of property with any information the committee requests about the property that is known to the person who has custody or control of it; and
(b) deliver the property to the committee when required to do so by the committee.
Powers of committee
A committee of property may, in respect of the property of the incapable person that is subject to the committeeship order, and without obtaining the authority or direction of the court, do any or all of the following:
(a) receive, deposit and invest money;
(b) purchase, sell, dispose of, encumber or transfer personal property having a fair market value that is not greater than $10,000. or any higher amount prescribed by the regulations;
(c) transfer property held in trust by the incapable person, either solely or jointly with another, to the person beneficially entitled to it;
(d) execute any document on behalf of the incapable person that is necessary to comply with The Homesteads Act;
(e) commence, continue, settle or defend any claim or proceeding respecting the incapable person's property;
(f) draw, accept and endorse bills of exchange and promissory notes, endorse bonds, debentures, coupons and other negotiable instruments and securities, and assign a right of action;
(g) give or receive a notice on behalf of an incapable person that relates to his or her property;
(h) grant or accept a lease of real property for a term not exceeding three years;
(i) give a consent to the transfer or assignment of a lease if the consent is required;
(j) pay periodically, as may be required, a reasonable amount for the maintenance of the incapable person;
(k) perform a contract entered into by the incapable person before he or she became incapable.
Restrictions and conditions
The powers granted by subsection (1) are subject to any restrictions or conditions imposed by the court.
Powers of committee specifically conferred by court
The court may, on application by a committee of property, authorize the committee to do any or all of the following in respect of the property of an incapable person under his or her committeeship:
(a) purchase, sell, dispose of, encumber or transfer personal property having a fair market value greater than the amount referred to in clause 80(1)(b);
(b) purchase, sell, dispose of except by way of lease, mortgage, encumber, or transfer real property;
(c) grant or accept a lease of real property for more than three years;
(d) exchange or partition property or give or receive money for equality of exchange or partition;
(e) surrender a lease, with or without accepting a new lease, or accept a surrender of a lease;
(f) carry on the incapable person's trade or business;
(g) exercise a power or give a consent required for the exercise of a power vested in the incapable person;
(h) exercise a right or obligation to elect belonging to or imposed on the incapable person;
(i) compromise or settle a debt owing by or to the incapable person;
(j) make expenditures from the incapable person's property for gifts, donations or loans;
(k) with or without consideration, surrender, transfer or otherwise dispose of onerous real property of the incapable person.
Restrictions and conditions
The powers under subsection (1) may be granted subject to any restrictions and conditions that the court considers appropriate.
A committee of property may, out of the incapable person's property, receive compensation for services rendered, if he or she has obtained approval to do so from the court. The Public Guardian and Trustee is entitled to compensation without such approval.
DUTIES OF COMMITTEE OF PROPERTY
A committee of property is a fiduciary whose powers and duties must be exercised and performed diligently, with honesty and integrity and in good faith, for the benefit of the incapable person.
Subject to any terms and conditions imposed by the court, a committee of property shall make the following expenditures from the incapable person's property:
(a) expenditures that are reasonably necessary for the incapable person's support, education and care;
(b) expenditures that are reasonably necessary for the support, education and care of the incapable person's dependants;
(c) expenditures that are necessary to satisfy the incapable person's other legal obligations.
The following rules apply to expenditures:
(a) the value of the property, the accustomed standard of living of the incapable person and his or her dependants and the nature of other legal obligations shall be taken into account;
(b) expenditures under clause (1)(b) may be made only if the property is and will remain more than sufficient to provide for expenditures under clause (1)(a);
(c) expenditures under clause (1)(c) may be made only if the property is and will remain more than sufficient to provide for expenditures under clauses (1)(a) and (b).
ACCOUNTING BY
COMMITTEE OF PROPERTY
Filing of inventory on appointment
Unless the court directs otherwise, a committee of property shall,
(a) within six months after being appointed, file with the court an inventory and account of the incapable person's property, including debts and liabilities, for which he or she is appointed committee;
(b) immediately file a revised inventory and account if any property, including debts and liabilities, is discovered after the inventory and account is filed under clause (a); and
(c) bring in and pass his or her accounts when required to do so by the court.
Public Guardian and Trustee need not file inventory, etc.
Subsection (1) does not apply if the committee is the Public Guardian and Trustee.
A creditor or a relative of an incapable person, or another interested person with the approval of the court, may, not more often than once a year, apply to the court for an order that the committee of property do one or more of the following:
(a) bring in and pass his or her accounts;
(b) file an inventory of the incapable person's property, including debts and liabilities;
(c) pay into the court the balance of any property in his or her hands;
(d) do some other thing that the circumstances require.
Separate account in a financial institution
A committee of property who deposits money shall open and keep a separate account in his or her name in a bank, trust company or credit union for each incapable person for whom the money so deposited is held.
If committee is the Public Guardian and Trustee or a trust company
Subsection (1) does not apply if the committee is the Public Guardian and Trustee or a trust company, who may, pending the investment of money held for an incapable person or persons, deposit it in a single account in their own name in a bank, trust company or credit union. The Public Guardian and Trustee may also deposit money in a single account with the Minister of Finance.
Accounting on death of committee
If a committee of property dies, the executor under the committee's will or the administrator of his or her estate shall
(a) pass the committee's accounts; and
(b) deliver any property of the incapable person in his or her custody or under his or her control, and any relevant documents or information, to the incapable person's new committee of property or as directed by the court.
Accounting on death of incapable person
If an incapable person dies, the committee of property shall
(a) provide an accounting to the executor under the incapable person's will or the administrator of his or her estate; and
(b) deliver any property of the incapable person in his or her custody or under his or her control, and any relevant documents or information, to the executor or administrator.
POWERS AND DUTIES OF COMMITTEE OF
BOTH PROPERTY AND PERSONAL CARE
Powers re property
A committee of both property and personal care appointed under subsection 75(2) has the same duties and powers concerning the incapable person's property as does a committee of property under Division 3.
Powers re personal care
Subject to this Division, a committee of both property and personal care appointed under subsection 75(2) has the following powers concerning an incapable person's personal care:
(a) to determine where and with whom the incapable person shall live, either temporarily or permanently;
(b) subject to section 91, to consent or refuse to consent to medical or psychiatric treatment or health care on the incapable person's behalf, if a physician informs the committee that the person is not mentally competent to make treatment decisions using the criteria set out in subsection 27(2);
(c) to make decisions about daily living on the incapable person's behalf; and
(d) to commence, continue, settle or defend any claim or legal proceeding that relates to the incapable person.
Restrictions and conditions
The powers under subsection (1) are subject to any restrictions or conditions imposed by the court.
LIMITATIONS ON POWERS
Limitation re treatment and health care
A committee of both property and personal care may not give or refuse consent to treatment or health care under clause 90(1)(b) if the incapable person, when capable, made a health care directive that appoints a proxy to exercise that power or expresses a decision of the incapable person about the proposed treatment or health care.
Limitation re custody and divorce
A committee of both property and personal care may not
(a) change arrangements in respect of custody of or access to a child; or
(b) commence divorce proceedings on behalf of the incapable person;
unless the court has specifically granted that power at the committee's request.
Matters excluded absolutely
A committee of both property and personal care may not give consent on the incapable person's behalf
(a) to medical treatment for the primary purpose of research, if the treatment offers little or no potential benefit to the person;
(b) to sterilization that is not medically necessary for the protection of the incapable person's health;
(c) to the removal of tissue for transplant or medical education or medical research;
(d) to voluntary admission to a facility; or
(e) to the adoption or guardianship of a child.
DUTIES OF COMMITTEE RESPECTING
PERSONAL CARE
A committee of both property and personal care shall exercise his or her powers and perform his or her duties relating to personal care diligently and in good faith.
Least restrictive and intrusive course of action
A committee of both property and personal care shall choose the least restrictive and least intrusive course of action relating to personal care that is available and is appropriate in any particular situation.
Criteria for making health care decisions
A committee of both property and personal care shall exercise the power to give or refuse consent to treatment or health care under clause 90(1)(b) in accordance with the incapable person's best interests as described in subsections 28(4) and (5).
Criteria for making other personal care decisions
In making decisions about personal care, other than treatment or health care decisions under subsection (1), a committee of both property and personal care shall be guided by the following considerations:
(a) the incapable person's wishes;
(b) the incapable person's values and beliefs, if the committee has no knowledge of the incapable person's wishes and has used reasonable diligence to ascertain whether there are such wishes;
(c) the best interests of the incapable person, if
(i) the committee has no knowledge of the incapable person's wishes, values and beliefs, and has used reasonable diligence to ascertain whether there are such wishes, values or beliefs, or
(ii) the committee cannot follow those wishes, values or beliefs without endangering the health or safety of the incapable person or another person.
COMMON PROVISIONS RESPECTING
ALL COMMITTEES
Effect of decision by committee
Any decision made, action taken, consent given or thing done by a committee in accordance with the order appointing the committee and the requirements of this Part is deemed for all purposes to have been decided, taken, given or done by the incapable person as though he or she were capable.
When a committee enters into a contract on behalf of an incapable person, the contract is binding on the incapable person after the committee's appointment ends in the same manner and to the same extent as if the incapable person had made the contract when capable.
Completion of transactions
A committee has the power to complete a transaction that the incapable person entered into before becoming incapable.
A committee may do whatever is necessarily incidental to the exercise of any powers conferred on the committee by or under this Part.
TERMINATION, REPLACEMENT AND
VARIATION OF APPOINTMENT
Application for termination, replacement or variation
Any person may apply to the court for one or more of the following:
(a) termination of a committee's appointment;
(b) appointment of a person to replace a committee whose appointment has been terminated or who has died;
(c) variation of the committee's appointment.
At least 10 days before an application is heard, the applicant shall serve notice of the application on
(a) the committee, if the applicant is not the committee;
(b) the Public Guardian and Trustee; and
(c) any other person the court requires to be served.
Decision to terminate
On an application under clause 101(1)(a), the court
(a) shall make an order terminating the committee's appointment if it is satisfied that any of the criteria for the appointment of a committee of property under subsection 75(1), or a committee of both property and personal care under subsection 75(2), as the case may be, are no longer met; and
(b) may make an order terminating the committee's appointment if it is satisfied that terminating the appointment would be in the best interests of the incapable person or that the committee
(i) is unable or unwilling or refuses to act or to continue to act as committee,
(ii) has failed to act in accordance with this Act or the terms and conditions of the appointment,
(iii) has acted in an improper manner or in a manner that has endangered or that may endanger the well-being or property of the incapable person, or
(iv) is no longer a suitable person to act as a committee.
Court to be satisfied about alternative arrangements
Before making an order under subsection (1), the court shall satisfy itself that, if necessary,
(a) suitable arrangements have been made regarding the incapable person's property or personal care, as the case may be; or
(b) an application has been made to appoint another committee.
Accounting on termination of appointment
When the court terminates a committeeship order under section 102, it shall direct the committee to pass his or her accounts. However, the court may dispense with the requirement to pass accounts if the termination is ordered because the incapable person has regained capacity.
Time for providing accounting
An accounting required under subsection (1) must be provided within 30 days after the appointment is terminated, or within such further time as the court allows.
Delivery of property
A committee whose appointment is terminated shall, as soon as reasonably possible, deliver any property of the incapable person in his or her custody or under his or her control and any relevant records or information to the incapable person if he or she has regained capacity, or to the incapable person's new committee.
Order to appoint replacement committee
If, on application under clause 101(1)(b), the court is satisfied that the criteria for the appointment of a committee of property under subsection 75(1), or of both property and personal care under subsection 75(2), as the case may be, continue to be met, the court may appoint a person to replace a committee
(a) whose appointment has been terminated under clause 102(1)(b); or
(b) who has died, where there is no surviving joint committee and where no alternate committee has been appointed.
Powers of replacement committee
Unless the court directs otherwise, a committee appointed under subsection (1) has the same powers and duties as the committee he or she replaces, and the appointment is subject to the same terms and conditions as the original appointment.
Decision to vary appointment
On an application under clause 101(1)(c) to vary an appointment, the court may, in accordance with this Part, make a decision to do one or more of the following:
(a) vary the powers conferred or the duties imposed on the committee in the appointment;
(b) vary the terms and conditions of the appointment;
(c) vary the duration of the appointment;
(d) appoint an additional or alternate committee in accordance with section 76 on any terms and conditions that the court considers appropriate.
GENERAL PROVISIONS CONCERNING THE
PUBLIC GUARDIAN AND TRUSTEE
AS COMMITTEE
CONVEYING TITLE TO LAND
Conveying title to land
If the Public Guardian and Trustee, acting as an incapable person's committee of property, sells land on the person's behalf, the Public Guardian and Trustee may convey title even if he or she no longer acts as committee or the person dies before a conveyance or transfer is executed or registered.
Evidence in documents of sale
If the Public Guardian and Trustee executes a conveyance of land under subsection (1) after the registered owner's death, a statement in the conveyance that the land has been sold while the Public Guardian and Trustee was appointed committee for the owner is evidence of the stated facts.
For the purpose of registration in a land titles office, a conveyance under this section is deemed to have been executed during the person's lifetime.
[Repealed] S.M. 2013, c. 46, s. 45.
NON-RESIDENT INCAPABLE PERSONS
Administration of estates of persons detained in other provinces
When a person who has been declared incapable of managing his or her property in another province or territory of Canada has property in Manitoba, the court, upon application by the Public Guardian and Trustee, may appoint, as committee of the person's property in Manitoba, an official who is administering the person's property in that other province or territory.
Duties and powers of person appointed
A person appointed under an order in council under this section has the same powers, duties and protections as does the Public Guardian and Trustee under this Act.
Evidence of Public Guardian and Trustee's committeeship
A statement in a lease, mortgage, conveyance or other document that the Public Guardian and Trustee acts as committee for a person is evidence of the fact stated.
Unclaimed money held by Public Guardian and Trustee
Money that has remained in the Public Guardian and Trustee's possession or control as committee of property for six years because, in his or her opinion, no person is entitled to it, must be paid over to the Minister of Finance to be paid into the Consolidated Fund.
Payment over of money claimed
If a person claims to be entitled to money paid over under subsection (1), the Minister of Finance shall, if satisfied as to the claimant's right and if authorized by an order of the Lieutenant Governor in Council, pay the money to the claimant with any interest that is specified in the order.
DIRECTORS AND OTHER STAFF
Appointment of director and others
A Director of Psychiatric Services and any other employees required for the administration of this Act may be appointed under The Civil Service Act.
Authority of Director of Psychiatric Services
The director may
(a) authorize in writing the transfer of a patient from one facility to another;
(b) interview relatives of patients and any other persons as to the history and circumstances of a patient or a person for whom a committee may be appointed under Part 8;
(c) require any person to provide information to the director when the information is required for the purpose of carrying out the director's duties under this Act;
(d) consult with any medical and other experts that he or she considers advisable concerning a patient or a person for whom a committee may be appointed under Part 8;
(e) direct that a person be admitted to a facility when the requirements for admission under this Act are met;
(f) delegate to any suitably qualified person any of the director's powers, duties or functions under this Act; and
(g) perform any other duties assigned by the minister.
Appointment of medical directors
Each facility shall appoint a medical director for the facility and advise the director promptly of the appointment.
Authority of medical director
The medical director of a facility has responsibility for the provision and direction of psychiatric services for that facility, and may
(a) admit and detain mentally disordered persons for examination and treatment in the facility;
(b) consult with any medical and other experts that he or she considers advisable concerning patients in the facility;
(c) unless otherwise directed by the director, refuse to admit or detain any person as a voluntary patient;
(d) delegate to any suitably qualified person any of the medical director's powers, duties or functions under this Act.
STANDARDS COMMITTEES FOR FACILITIES
When the minister considers it desirable that a standards committee be established for a facility or facilities, he or she may in writing request the College of Physicians and Surgeons of Manitoba to appoint members of the College to a standards committee for the facility or facilities. The council of the College shall then appoint the members of the committee, as well as appoint members to fill vacancies, and advise the minister of the names of the committee members.
REPORTS BY FACILITIES
The medical director of a facility shall, when requested to do so by the director, provide the director with any information the director requests concerning the detention, care and treatment of persons in the facility and concerning the operation of the facility.
Form of information
Information requested under subsection (1) shall be provided in the form and at the time required by the director.
PROTECTION FROM LIABILITY
Protection from liability
No action for damages or other proceeding lies or may be brought personally against the director, a medical director, a psychiatrist, a physician, a member of the review board or of the Review Board established or designated for Manitoba under Part XX.1 of the Criminal Code (Canada), or any other person acting under the authority of, or engaged in the administration of this Act or the regulations for anything done or omitted in good faith in the performance or exercise, or the intended performance or exercise, of any duty or power under this Act or the regulations, or for any neglect or default in the performance or exercise, or intended performance or exercise in good faith of such a duty or power.
Supply of intoxicants forbidden
A person who, having been warned by a person under whose charge a patient of a facility has been placed not to supply intoxicants to the patient, knowingly gives or otherwise supplies an intoxicant to the patient is guilty of an offence.
Definition of "intoxicant"
In subsection (1), "intoxicant" means liquor as defined in The Liquor, Gaming and Cannabis Control Act, cannabis (marijuana) and a controlled substance as defined in the Controlled Drugs and Substances Act (Canada).
Assisting a patient to leave a facility without permission
A person who knowingly assists a patient in a facility to leave the facility without permission is guilty of an offence.
A person who obstructs the director, a medical director or any other person in the exercise of powers conferred on him or her by or under this Act, is guilty of an offence.
Ill-treating mentally disordered persons
A person employed by or on the staff of a facility, or any person having charge, care, control, or supervision of a person with a mental disorder who ill-treats or wilfully neglects the mentally disordered person is guilty of an offence.
Giving wrong information
A person who, for the purpose of obtaining a certificate, the renewal of a certificate or an order under this Act, wilfully supplies the director, a medical director, a psychiatrist, a physician, or any person having the custody, care, control, or supervision of a person with a mental disorder, with any untrue or incorrect information, is guilty of an offence.
A person who contravenes any provision of this Act is guilty of an offence and is liable, on summary conviction, to a fine of not more than $2,000. or to imprisonment for a term not exceeding one year, or to both a fine and imprisonment.
The minister may make regulations
(a) designating facilities for the observation, assessment, diagnosis and treatment of persons who are mentally disordered;
(b) governing the operation of facilities;
(c) respecting the cost of maintenance of, and charges to be paid by or on behalf of, patients of facilities;
(d) prescribing forms for use under this Act;
(d.1) for the purpose of the definition "qualified person" in subsection 15(4), specifying a position or category of positions that a person may hold in order to be qualified, or the training required to be qualified;
(e) prescribing health professions for the purpose of subsection 36(5);
(f) respecting the maximum fees that may be charged to patients for the examination and copying of their clinical records, including providing for circumstances in which fees may be waived;
(g) respecting the accuracy, retention and destruction of clinical records and security safeguards for such records;
(h) governing the review board, including but not limited to,
(i) prescribing the manner in which applications may be made to the review board,
(ii) prescribing the period of time within which a hearing of the review board must begin for the purpose of subsection 53(3),
(iii) prescribing the period of time within which decisions of the review board must be made,
(iv) providing for the remuneration and expenses of members of the review board;
(i) prescribing the fair market value of personal property for the purpose of clause 80(1)(b);
(j) respecting any matter the minister considers necessary or advisable connected with the duties of the Public Guardian and Trustee under this Act;
(k) defining any word or expression used in this Act but not defined in this Act;
(l) generally for the purpose of carrying out the provisions of this Act.
Regulations prescribing charges
A regulation under clause (1)(c) may prescribe or determine different charges to be paid by different classes of persons.
TRANSITIONAL,
CONSEQUENTIAL AMENDMENTS,
REPEAL AND COMING INTO FORCE
Transitional: definition of "former Act"
In this section, "former Act" means The Mental Health Act, R.S.M. 1987, c. M110.
On the coming into force of this Act,
(a) a person who is a committee of the estate of a person under the former Act is deemed to be a committee of property appointed under this Act; and
(b) a person who is a committee of the estate and of the person under the former Act is deemed to be a committee of both property and personal care appointed under this Act.
A certificate filed or issued under the former Act and in effect on the coming into force of this Act continues in effect as if filed or issued under this Act.
NOTE: These sections contained consequential amendments to other Acts which are now included in those Acts.
REPEAL AND COMING INTO FORCE
The Mental Health Act, R.S.M. 1987, c. M110, is repealed.
This Act may be cited as The Mental Health Act and referred to as chapter M110 of the Continuing Consolidation of the Statutes of Manitoba.
Coming into force
This Act comes into force on a day fixed by proclamation.
NOTE: S.M. 1998, c. 36 came into force by proclamation on October 29, 1999.