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Location: Consent and Capacity Board  > Policy Guidelines > Policy Guidelines No 1

Policy Guideline 1

March 31, 2022

Right to Apply When Certificate of Involuntary Status or Renewal or Continuation is Renewed Before the Board Renders a Decision


  1. Purpose:
    1.1 This Policy Guideline addresses the right of patients to apply to the Board for a hearing when a Certificate of Renewal (Form 4) or Certificate of Continuation (Form 4A) comes into force prior to the Board's decision confirming or rescinding their involuntary status.

    1.2 The Board publishes this Policy Guideline to inform all interested persons of the Board's legal obligations regarding scheduling and the process to be followed by the Board.
  2. Legislation:
    2.1 Section 39(1) of the Mental Health Act (MHA) allows an involuntary patient, or any person on their behalf, to apply to the Board to inquire into whether or not the prerequisites set out in the Act for admission or continuation as an involuntary patient are met.

    2.2 Section 39(2) of the MHA provides that applications to the Board may be made:

    1. ) when a certificate of involuntary admission respecting the patient comes into force;
    2. ) when any certificate of renewal respecting the patient comes into force; or
    3. ) when any certificate of continuation respecting the patient comes into force.

    2.3 Section 41(1) of the MHA requires that the Board review the patient's status to determine whether or not the prerequisites set out in the MHA for admission as an involuntary patient continue to be met at the time of the hearing of the application.

    2.4 Section 41(2) of the MHA provides that the Board may confirm the patient's status as an involuntary patient if the Board determines that the prerequisites set out in the MHA for admission as an involuntary patient were met at the time of the hearing of the application.

    2.5 Section 41(3) of the MHA states that the Board shall rescind the certificate if the Board determines that the prerequisites set out in the MHA for admission as an involuntary patient were not met at the time of the hearing of the application.

    2.6 Section 41(4) of the MHA sets out that a decision of the Board confirming or rescinding a certificate applies to the certificate of involuntary admission, the certificate of renewal or the certificate of continuation in force immediately before the making of the decision.

  3. General Principles:
    3.1 A Certificate of Renewal (Form 4) or Certificate of Continuation (Form 4A) puts an end to the Certificate of Involuntary Admission (Form 3), a previous Certificate of Renewal (Form 4), or a previous Certificate of Continuation (Form 4A).

    3.2 This principle applies even if the Certificate of Renewal or Certificate of Continuation is issued after the hearing ended and prior to the Board issuing its decision (Note: in accordance with the MHA, the Board has one day after the hearing is completed to render its decision).

  4. Process:
    4.1 Absent an order of the hearing panel, the Board, upon receipt of an application in circumstances where s.41(4) of the MHA is applicable such that a panel of the Board had already made a Decision on the existing Certificate, the Board will use the following procedures in scheduling hearings:

        4.1.1 Upon receipt of an Application to Review a Patient's Involuntary Status (Form 16), the Board will issue a Notice of Intention to Dismiss Without a Hearing under Rule 12 of the Board's Rules of Practice.

        4.1.2 Rule 12 establishes the procedures to be followed by the parties and the Board when a Notice of Intention to Dismiss is issued.

  5. Remedies:
    5.1 In the ordinary course of an admission, the underlying detention document may change between the time of an application and the Board's Decision being released. Any number of valid reasons may underlie this result.

    However, in some narrow and exceptional circumstances, this may result in the unfair deprivation of a second hearing. In such a case, the applicant may ask the panel hearing the substantive matter to order a new application be permitted over the course of the certificate in place at the time of the panel's Decision, notwithstanding subsection 39(2).

    5.2 In making such a determination, the hearing panel must first determine that the certificate will be confirmed in the present case; only if the certificate is upheld will the panel then consider whether or not fairness demands that a new application be permitted. Factors which may be considered include:

    • delay of the application due to later delivery of rights advice which prejudiced the applicant where the involuntary status is otherwise upheld;
    • delay of the Hearing as a result of factors outside of the applicant's control (Board availability, adjournment request by another party, illness);
    • significantly early renewal of involuntary status without reasonable explanation;
    • any other factor the panel may find relevant.

    6. 5.3 If the panel finds that there are exceptional reasons for which fairness considerations must apply, it may consider allowing a second hearing by setting this out in an Order/ Endorsement accompanying the Decision.

  6. Effective Date:
    6.1 This Policy Guideline is effective March 31, 2022.

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