An officer can take a person into custody and take them to a hospital for a psychiatric examination if the officer believes that:
The person has a mental disorder; and
They are acting in a disorderly manner involving violence or athreat of violence to themselves or another person; and
The person’s mental disorder is likely to cause them to harm themselves or another person. Sometimes an officer will take the person to the hospital instead of charging them with a criminal offence (if they have grounds to do so).
The police can also take a person for a psychiatric examination if they have an order signed by a doctor or a justice of the peace. These orders must have been signed within seven days of the date the police take the person to the hospital. These assessments are called “Form 1” (signed by a doctor) or “Form 2” (signed by a justice of the peace) assessments.
Once a person is taken to a hospital for a psychiatric examination, the doctor who examines them must decide within three days (72 hours) whether to release them, or keep them in the hospital for a longer period of time. Until the doctor makes a decision, they are not free to leave the hospital.
If the examining doctor decides the person is not a danger to themselves or anyone else, the person will be released from the hospital, and if they have not been charged with a criminal offence, released from police custody too. This may happen soon after the person is brought to the hospital or it may take the entire three days. If they’ve been charged with a criminal offence, the police will decide to either release the person on an appearance notice [PDF] or a promise to appear [PDF] or hold them for bail.
If the examining doctor decides the person is still a danger to themselves or others, the doctor may keep the person in the hospital for longer than three days. In this situation, the person should be given access to a “rights advisor” who can explain the person’s rights, and may assist in getting a lawyer who deals with mental health law.
Depending on the situation, the police may charge a person who has mental health issues with a criminal offence and hold them for bail.
A person who has been charged with a criminal offence is called an accused. An accused with mental health issues does have a right to a bail hearing, but sometimes they can be ordered by a judge to be assessed by a psychiatrist before their bail hearing occurs. In other situations, the accused may be assessed after they plead guilty or are found guilty after a trial. Some assessments may occur right in the courthouse (if there’s a psychiatrist available), but usually the person is sent to a secure psychiatric hospital.
Most of the time, judges are very careful about making psychiatric assessment orders and do not order them readily. This is true even if an accused is suffering from psychosis, delusions, or is acting in a way that many people would consider to be strange. Simply acting strange or being poorly groomed is usually not enough to be sent for an assessment. In most cases, the Crown or the accused’s lawyer (or duty counsel) may ask for a psychiatric assessment. In some situations, the judge may order an assessment even if it’s not asked for. In all cases, the judge decides whether or not an accused person is sent for an assessment.
Sometimes an accused person with mental health issues can be released on bail with conditions to address mental health concerns, or with a Form 1 or Form 2 order already in place. For example, there may be conditions such as:
A condition requiring a psychiatric assessment to take place at a hospital or other mental health facility;
A condition requiring an accused to see their family doctor (usually for a referral to a psychiatrist);
A condition to take medication prescribed by a doctor. However, it can be difficult for the lawyer (or duty counsel) representing an accused with mental health issues to put a plan in place to get them released on bail.
Because of this, an accused with mental health issues may remain in custody – either in a jail or in a secure psychiatric hospital – while they are being assessed. Often an accused that is ordered to be assessed has not had a bail hearing yet, so they remain in custody while they are being assessed. An in-custody assessment can occur in a jail, but usually occurs at a secure psychiatric hospital. If a judge believes that an accused is unfit to stand trial, an assessment is almost always ordered before an accused has had a bail hearing. This is why most “fitness to stand trial assessments” occur while the accused is in custody, even though there is a presumption in the Criminal Code against doing in-custody assessments.
This section has been created as a public service by Legal Aid Ontario. Every reasonable effort has been made to ensure that the information presented is current and accurate. However, users of this section should verify the information before making decisions or acting upon it. This section contains general legal information. It is not intended to be used as legal advice for a specific legal problem.