Rules of Practice and Procedures
1.0 Purpose of the Rules
3.0 Application of the Rules
4.0 Powers of the Board
5.0 Computing Times
6.0 Filing Applications and other Documents with the Board
7.0 Withdrawal of Request for a Hearing
10.0 Interpreters; Special Needs
11.0 Electronic Hearings
14.0 Procedure at a hearing
15.0 Witnesses at the Hearing
1.1 The purpose of these Rules is to provide a fair, just, accessible and understandable process in proceedings before the Board. The Rules are meant to assist the Board in fulfilling its statutory mandate of delivering a just and fair determination of the matters that come before it.
2.1 In these Rules:
“Act” means the Mental Health Act
“Board” means the Mental Health Review Board
“Board Chair” means the individual who is the Chair of the Mental Health Review Board
“Motion” means a request for the Board’s ruling or decision on a particular issue at any time before a hearing or during a hearing
“Postpone” means to put off or defer (a hearing to another date)
“Review panel chair” means the Board member who has been assigned by the Board Chair to chair the review panel hearing.
“Withdraw” means to unilaterally discontinue a proceeding and it has the same operative effect as a settlement. (A withdrawal from a hearing precludes a hearing until after the next certification renewal.)
3.1 These Rules apply to all proceedings of the Board. Where any of these Rules conflict with any statute or regulation or where the application of these Rules is statutorily excluded, the provisions of the statute or regulation prevail.
3.2 Where these Rules do not encompass a particular set of circumstances, the practice may be decided by referring to a similar provision in these Rules or may be determined by the Board Chair or the review panel on a case by case basis.
3.3 A failure to comply with a requirement in these Rules does not invalidate a proceeding but the Board Chair or the review panel may take action appropriate in the circumstances.
4.1 The powers of the Board are as set out in the Mental Health Act and the Administrative Tribunals Act.
4.2 During any proceeding, the review panel may do whatever is necessary and permitted by law to enable it to effectively adjudicate the matter.
4.3 The Board may waive or vary any of these Rules at any time in order to ensure a fair, just, accessible and understandable determination of the proceeding.
5.1 In computing time periods under these Rules or in an order or decision, except as provided by statute or where a contrary intention is directly expressed:
- Where there is a reference to a number of days between two events, for example - an application date and the last date for a hearing due in 14 days, the days shall be counted starting on the next day after the receipt of the application to day 14 as the final day (if an application is received at the Board office on September 1, on an initial certification, a hearing must be held on or before 4 pm on September 15).
- If the time for holding a hearing falls on a holiday, the time is extended to the next business day.
- If the time for holding a hearing falls on a day when the Board office is not open during regular business hours, the time is extended to the next business day that the office is open.
- If an application is received after 4 pm on a Business Day, it shall be deemed to have been received on the next Business Day.
- “Business Day” is any day other than a Saturday, Sunday or statutory holiday.
6.1 In these Rules, “filing” of any document means the delivery in person, by fax, mail, or e-mail scan of that document to the Board.
6.2 Subject to Rule 5.1, a document is deemed to be filed as of the date and time that it is received by the Board.
7.1 At any time before a hearing begins (but not after the start of a hearing), a patient may withdraw his/her request for a hearing (section 25(2.7) of the Act). This withdrawal must be sent to the Board office in writing signed by the patient/advocate or be requested in person. Upon withdrawal, the patient can only reapply for a hearing after the next certification renewal.
8.1 The Board staff will set a date for the hearing within the prescribed time as required and set out in the Regulations to the Act, section 6. In setting this date, the usual procedure is for staff to determine the availability of the case presenter and then to attempt to find a review panel to preside at the hearing. If the hearing is postponed for lack of advocate availability, the staff will attempt to find a hearing date to accommodate the availability of the patient’s advocate.
8.2 If a hearing has been postponed and (a) the Board has been unable to contact the patient and (b) there has been no communication to the Board from the applicant or his/her advocate for a period of ninety days, the Board staff will close the file and the patient will be required to reapply for a hearing.
9.1 The Board may dismiss an application without a hearing if:
- the application is frivolous, vexatious or is commenced in bad faith;
- the application relates to matters that are outside the jurisdiction of the Board; or
- the statutory requirements for bringing the application have not been met.
9.2 Before dismissing an application, the Board shall give notice of its intention to dismiss the application to the party who commenced the application and shall set out the reasons for the intended dismissal and inform the party of his/her right to make submissions to the Board with respect to the dismissal within seven days of service of the notice.
10.1 If a patient or witness requires an interpreter, he/she or a representative on his/her behalf should notify the Board as soon as possible and the Board shall, at its own expense, arrange for an interpreter as it deems necessary for the proper conduct of the hearing.
10.2 Advocates, agents and witnesses must notify the Board as soon as possible of their request for accommodation of any special needs of the patient during the hearing process. The Board will determine in its discretion whether those special needs can be met.
11.1 In appropriate cases (usually when the Board is unable to find a review panel member available for travel or when the hearing location has inclement weather conditions making travel there dubious), the Board Chair may decide to conduct all or any part of the hearing by way of electronic means.
11.2 If circumstances are submitted to the Board by the patient/advocate - that electronic participation in a review panel would result in an unfair hearing for the patient - the Board Chair will arrange for a hearing with review panels members in person to be held at the next available opportunity which may not be within the statutory time period for a hearing. However, the patient retains the right to proceed with the hearing within the statutory time period with electronic participation by the review panel .
12.1 A Motion may be made by a person or entity with an interest in the proceeding and does not need to be in any particular form.
13.1 Once commenced, a hearing may be adjourned at the discretion of the review panel on its own initiative or at the request of a party at the hearing. After considering the reasons for an adjournment request, if the review panel grants an adjournment, the review panel may impose such conditions as it considers appropriate and the review panel will be seized of the matter.
13.2 If at any time before a hearing commences, the Board office receives information that the patient does not have notice of the hearing date and Board staff/facility staff have attempted on several occasions to contact the patient without success, the Board Chair may postpone the scheduled hearing.
13.3 If a patient requests a postponement of a hearing more than 48 hours before the scheduled commencement of the hearing, no reasons for the postponement are required.
13.4 If a patient requests a postponement of a hearing within 48 hours of the scheduled hearing time, a reason must be given or a satisfactory reason must be apparent to the Board for the postponement to be granted. The factors to be considered by the Board in granting a postponement include the following:
- the reason for postponement;
- whether the postponement would cause unreasonable delay ;
- the impact of the refusal or granting of the postponement on the parties and on the public interest.
13.5 If (a) the Board office receives notice that the patient applicant is absent without leave from the facility or fails to appear at the facility as required by a condition of his/her extended leave and (b) a Director’s warrant has been issued for their apprehension, and (c) the patient has not returned or appeared 72 hours before the scheduled hearing time, his/her application for a hearing will be postponed unless exceptional circumstances are brought to the attention of the Board.
14.1 The review panel controls its own process and determines its own practices and procedures during the hearing according to legislation and principles of common law.
14.2 The review panel may require that evidence be given under oath or affirmation.
14.3 Evidence at a hearing shall be presented in the order as directed by the review panel to ensure the fairness of the hearing.
14.4 The review panel shall give the patient or his/her advocate and the case presenter an opportunity to make a final submission in support of the decision or order they want the review panel to make. The review panel may allow or order written submissions.
14.5 Unless the Board otherwise decides, the hearing will be held as close as possible to the place where the patient, who is the subject of the application, is physically located at the time of the hearing.
15.1 Unless the review panel chair excludes the patient from attendance at the hearing or any part of it under section 25(2.6) of the Act, the Board requires the patient to attend the hearing and give evidence if so asked.
15.2 Unless the review panel otherwise orders, a representative from the detaining facility (a “case presenter”) must attend the hearing in order for the review panel to receive evidence on the patient’s history of mental disorder and other factors as described in section 25(2.1) of the Act (which necessarily includes details set out on the most recent Form 4 or Form 6). It is the responsibility of the detaining facility to select the case presenter (the patient’s treating psychiatrist is often an appropriate case presenter). Case presenters are not required to prepare a written case note for the hearing but are free to use such as speaking notes. The case presenter should be knowledgeable about the patient and be prepared to answer questions about the patient and his/her treatment and questions that pertain to the criteria that the panel must consider in deciding whether the detention should continue. If the case presenter wishes to present the review panel with any documentation, he/she must provide a copy for each member of the panel and for the patient and his/her advocate.
15.3 As per the authority given in section 24.3 of the Act, a review panel may make an order compelling a person to give evidence at a hearing or to produce a document or other thing in a person’s possession or control that is admissible and relevant to an issue in an application.
15.4 Case presenters are not required to stay for the duration of the hearing after they have given their evidence and answered any questions from the review panel or from others as the review panel so determines. However a case presenter may be asked by the review panel to leave their cell phone number/pager (or number where they will be at) in case a pivotal question arises that only he/she can answer.
15.5 Witnesses other than the patient and the case presenter must not be present in the hearing room before they give their evidence and answer questions from the review panel except in exceptional circumstances. It is in the discretion of the review panel, after hearing submissions from the patient and the case presenter, to allow such witnesses to remain in the hearing room after giving evidence.
15.6 If a patient or a case presenter does not appear at the scheduled hearing time and place, the review panel shall ask for evidence from appropriate persons for possible reasons for the “no show”. The review panel may decide to proceed after waiting 30 minutes if there is convincing evidence that the absent patient or case presenter was duly notified of the hearing. If the hearing proceeds in the absence of the patient, the review panel must delay giving a determination in the matter for 48 hours to allow the patient or his/her representative to provide a reason for the “no show” and to submit evidence and/or submissions to the review panel. If the review panel decides not to proceed with the hearing, the hearing is regarded as postponed.
16.1 Only the case presenter and the patient with their respective advocates, if any, are authorized to attend the hearing as it must be held in private unless the review panel otherwise orders. Observers may be authorized by the review panel to attend after consideration of submissions from the patient, case presenter and/or their advocates.
16.2 The hearing is often taped/digitally recorded by the review panel as the record of the proceeding required under section 25(9) of the Act. However, if that is not possible, the review panel chair may direct review panel members to make a written record of the hearing evidence.
16.3 No other recording devices of any sort are permitted at the hearing.
16.4 A request for a record of the hearing may only be granted to a patient or the case presenter or their respective advocate unless otherwise consented to by the Board Chair. The request must be in writing and sent to the Board office within one year of the hearing date along with a fee of $20.00. In special circumstances, the fee may be waived by the Board Chair.
17.1 The review panel may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The review panel may exclude anything unduly repetitious.
17.2 At a hearing, the review panel must consider all reasonably available evidence concerning the patient’s history of mental disorder. The review panel chair may make orders respecting the taking, hearing or reproduction of evidence that he/she considers necessary to protect the interests of the patient or any witness.
17.3 As set out in 15.3 above, the review panel may make an order compelling a witness to give evidence or to produce a document that is admissible and relevant.
17.4 Generally, documents sent to the Board office will not be shared with review panel members before the hearing. However there may be exceptional circumstances requiring prior circulation of documents in the discretion of the Board Chair or review panel chair (for example - where a Board member or review panel member will be participating in the hearing by teleconference or videoconference.)
18.1 The review panel usually gives its decision (“determination”) orally at the hearing and a synopsis of the reasons if the patient so wishes. Regarding the written form of the determination, the review panel may serve or deliver a determination (Form 8) by any method it deems appropriate in the circumstances. The usual Board practice is to make five copies of the determination, retain one copy for Board records, and send the four remaining copies of the determination by mail to the facility for: the patient, the facility’s social work department, the patient’s records, and the patient’s physician or charge nurse. In addition, a copy is faxed to the patient’s advocate. The Form 8 may be signed in counterpart by the review panel members.
18.2 Unless the review panel determines otherwise, an amendment to correct a decision for a clerical or typographical error, an accidental or inadvertent error, omission or other similar mistake must not be made more than 30 days after the final decision has been rendered. A party may apply within 30 days of receiving a decision, to the review panel for clarification of the final decision and the review panel may amend the final decision only if the review panel considers that the amendment will clarify the final decision (section 25.1(1-4) of the Act).
18.3 A review panel, on its own initiative or at the request of a party, may reopen an application in order to cure a jurisdictional defect (section 25.1(5) of the Act). The patient or facility representative may do so by sending such a request in writing to the Board Chair.