Compulsory Care under the Mental Health Act

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic will discuss an application made to the Court for the compulsory care of a dependent adult under the Dependent Adults Act.

A dependent adult is described as a person over the age of 18 years and repeatedly or continuously is unable to care for him or herself and make reasonable judgments on matters that relate to their person. If the dependent adult continues in such a condition to present a danger to themselves or others, then that dependent adult may be confined to a place of care. The confinement of an adult to a place of care is called compulsory care.

Compulsory care under the Adult Guardianship and Trustee Act falls into two categories, and it depends upon where the dependent adult is living and which Order or Certificate of confinement is required:

· Compulsory Care Order, and

· Compulsory Care Certificate

If the dependent is not currently living in a place of care, you may make an application for a Compulsory Care Order at the Court of Queen’s Bench. An application for a Compulsory Care Order can be made by the Public Guardian, the Public Trustee or any adult person who is concerned about the welfare of the dependent adult. You should consult a lawyer if you wish to obtain such an Order from the Court.

You must serve your application for a Compulsory Care Order on the following persons:

· The dependent adult

· The appointed guardian, or trustee

· The nearest relative of the dependent adult living in Canada

· The person in charge of the institution such as nursing home, hospital and lodges where the dependent adult is living

· The Public Guardian

· The Agent appointed under a Personal Directive

· The Attorney appointed under the Power of Attorney Act

· Any other person that the Court may direct.

The dependent adults have the right to legal counsel at any hearing of their case. The Legal Aid Society of Alberta may appoint a lawyer if the dependent adult cannot afford one. The telephone number and address of the Legal Aid Office that is nearest to the Court will appear on any notice of an application regarding compulsory care.

The Court will issue a Compulsory Care Order only if it is satisfied that:

  1. A medical, psychological and social assessment has shown how the dependent adult may present a danger to himself or others
  2. He or she is in a condition that presents a danger to him or others
  3. Mentally incompetent to handle his or her own affairs confinement in a place of care is in their best interest

The Order is a proper means of ensuring the protection and treatment of a dependent adult.

Once you obtain this Order, you have full authority to take the dependent adult to the care center named in the Order. It can be one of the following places of care designated under the Dependent Adults Regulations:

· Alberta Hospital Edmonton

· Alberta Hospital Ponoka

· Claresholm Care Centre, Claresholm

· Michener Centre, Red Deer

· Rosehaven, Camrose

The Compulsory Care Order is issued for a maximum of 3 years. It ends after 3 years unless the Order is cancelled before, or upon the death of the dependent adult. A dependent adult may be granted a temporary leave of absence from the place of care. However if she or he fails to return within the time allowed, or if they leave the place without permission, she or he can be picked up by a police officer without warrant and brought back to the institution.

If the dependent adult, or any other interested person believes it is no longer in the best interest of the dependent adult to be confined in a place of care, an application may be made to the Court for a review of the Compulsory Care Order. Only the guardian of the dependent adult or the Public Guardian may apply to the Court for review of the Compulsory Care Order more than once every 6 months. For each application, service must be made to the same parties that were served for the initial application.

If the dependent adult already lives in a place of care, the person in charge of the institution may issue a Compulsory Care Certificate for an extended stay if she or he is satisfied from a report of a physician or psychologist that the resident is in a condition that presents a danger to him or others. The certificate is issued only as a temporary measure to address an emergency situation. The person in charge of the institution must apply to the Court of Queen’s Bench for a review of the certificate within 96 hours of its issue. At the review, the Court may either issue a Compulsory Care Order to further confinement, or direct that confinement of the dependent adult is no longer necessary.

The dependent adult’s care and treatment in a place of care must be reviewed every three (3) months. When the treatment has ended, the person in charge of the place of care must apply to have the Order reviewed. The Order is first revised by an Appeal Panel who decides if the dependent adult must be confined for a longer period of time, or released.

If the review panel finds that the confinement should be longer, the Public Guardian must make an application to the Court to review the Order of the review panel. The Court may confirm or terminate the Order.