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The Mental Health Act
The Mental Health Act

Mental Health Act examinations What is the Mental Health Act?

Ontario’s Mental Health Act, like the Criminal Code, gives courts certain powers to have an accused person sent to a hospital for a psychiatric examination. It also gives police officers and doctors certain powers to have someone sent for a psychiatric assessment.

At the same time, the Mental Health Act protects the rights of persons with mental health issues who are in a psychiatric facility. Judges can sometimes use the Mental Health Act instead of the Criminal Code to order an accused person to a psychiatric facility for an examination by a doctor.

Mental health:

Can a judge use the Mental Health Act to order the psychiatric examination of an accused who is in jail?

Yes. Under section 22 of the Mental Health Act (MHA) a judge can order an accused who is in custody to be admitted to a psychiatric facility for an examination.

If the accused has not been released on bail, the accused will remain in custody during the examination. A judge can also use section 21 of the MHA to order an accused who is not in custody to attend a psychiatric facility for an examination.

Mental health:

What has to happen before a judge can order an accused to be examined under the Mental Health Act?

For a judge to make an order under section 21 or 22 of the Mental Health Act, two things must happen:

  • the judge must have reason to believe that the accused has a mental disorder; and
  • the psychiatric facility where the examination will take place must agree to do the examination.

Mental health:

How long is an examination under the Mental Health Act for?

An examination under s. 22 cannot be longer than two months.

The judge can make the examination for a shorter period if he or she wishes. This is usually only an issue if an in-custody examination order is made under section 22 of the MHA.

Mental health:

What happens after an examination under the Mental Health Act is finished?

The senior physician (doctor) at the facility where the examination occurred must report, in writing, on the mental condition of the accused. The judge, the accused (or his/her lawyer) and the Crown all get a copy of the report.

The report is often used to assist with sentencing the accused, but may be used for other purposes.

Mental health:

Why aren’t Mental Health Act examinations used more often in criminal court?

Hospitals and psychiatric facilities are often full or nearly full of patients, so it is usually difficult to get a facility to agree to examine the accused. Also, fitness assessments and not criminally responsible assessments are often given priority at facilities over Mental Health Act (MHA) examinations.

Unlike other types of assessments (such as fitness assessments), the statements made to the examining psychiatrist during a MHA examination may not be “protected statements.” This means that the statements made by the accused to the psychiatrist could be used against the accused person if the matter went to a trial. This might be a reason why an accused’s lawyer would not want to ask for this type of assessment.

Mental health:

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