Mismanagement of Clients’ Rights

Claims involving allegations that a client’s rights were breached in the course of receiving mental health and addiction care can take a variety of forms. Examples of these include allegations of:

• Failure to obtain consent to treatment;

• Failure to adequately assess capacity to consent to treatment;

• Providing inadequate notice of detention;

• Failure to provide rights advice;

• Denial of civil rights;

• False imprisonment.

These claims often occur when there has been a perception by the client that the healthcare practitioner improperly treated or detained them in a mental health facility. Claims, whether meritorious or not, may be pursued vigorously by the client.

Expected Outcomes

Adopt a standardized current legislation compliant consent to treatment and capacity protocol.

Implement formal strategies to support and enhance the interprofessional and cross-departmental team’s knowledge, skills (technical and non-technical), and practical experience surrounding interpretation and application of consent to treatment and capacity-related legislation.

Implement formal strategies to monitor and measure adherence to client rights related processes.

Definitions and Acronyms

• Client – includes all persons who receive healthcare and related services including patients, residents and persons in-care
• SDM – substitute decision-maker

Common Claims Themes and Contributing Factors

Frequently involve

• Heightened sensitivity by courts to ensuring access to justice for vulnerable claimants.
• Claims not focused or complaints about variety of issues pursued.
• Scrutiny of specialized documentation and records (e.g., forms under the Mental Health Act).
• Infrequent and small indemnity (i.e., awards to the client) payments, if any.
• Significant resources spent by legal counsel and psychiatric facility staff to defend claim.

Knowledge and Judgement

• Individual practitioner and team biases resulting in:
  • The underestimation of the mental health crisis from the client’s perspective;
  • Disregard or dismissal of the client’s concerns or complaints.
• Insufficient staff education and practical experience with mental health legislation related to client rights.
• Challenges balancing safety practices and client’s rights and autonomy.

Client

• Client’s perception that:
  • Consent was not obtained;
  • Civil rights were denied;
  • Libel, slander, and / or defamation occurred;
  • The client was falsely imprisoned or detained;
  • Was not provided information about the detention and process.

Mitigation Strategies

Care Processes

• Adopt a standardized current legislation compliant consent to treatment and capacity protocol and decision aid to assist practitioners (Alberta Health Services, 2020) (Byrick & Walker-Renshaw, 2016). 

Additional Considerations

Examples of elements to consider within the consent to treatment and capacity protocol and decision aid:

• Conducting an evaluation of the client’s capacity where appropriate and document the findings;
• Providing clear and documented (or verbal where permitted) notice to the client of a finding of incapacity and the right to challenge the finding;
• Arranging for client rights advice where required;
• Ensuring the client understands that Mental Health Act privacy provisions apply to psychiatric records that supersede provincial privacy legislation;
• Obtaining informed consent from a capable person for their own treatment, or from the appropriate substitute decision-maker for an incapable person;
• Obtaining informed consent from a capable person for disclosure of their personal health information outside the circle of care, or from the appropriate SDM for an incapable person.

• Adopt processes to oversee procedural requirements related to admission status.
• Adopt a standard process to track when various forms are expiring and who is accountable for review.
• In collaboration with internal client rights advisor and / or client relations, develop a formal process to review client , family, and SDM complaints; ensure access to legal counsel is available where required.

Team Training and Education

• Implement formal strategies to support and enhance the interprofessional and cross-department team’s knowledge, skills (technical and non-technical), and practical experience surrounding interpretation and application of consent to treatment and capacity-related legislation that includes (but not limited to):
  • Applicable legislation and how it affects processes;
  • Legal requirements for treatment and admission;
  • The need to ensure clients are aware of their rights and how to access supports.
• In collaboration with client and family advisors, adopt standardized education and training for clients , families, and SDMs to foster an understanding of consent to treatment and capacity-related legislation (Ontario Human Rights Commission, n.d.).

Documentation    

• Ensure complete, timely, and judicious documentation of:
  • Assessments relating to the client's admission status and evaluations of capacity;
  • Reassessments required for forms due to expire;
  • Consent discussions;
  • The client’s receipt of notice of a finding and rights advice;
  • The client’s expressed understanding of their status, if appropriate;
  • The filing and review of forms, as required.

Monitoring and Measurement    

• Engage in a scheduled compliance review of applicable client rights legislative requirements.
• Implement formal strategies to monitor and measure adherence to, and effectiveness and efficiency of client rights related processes.
• Incorporate learning from local, provincial, and national client rights-related incidents, complaints, and data into local protocols as well as staff, client , SDM, and family education and training. 

References

• Alberta Health Services. (2020). Consent to treatment/procedure(s): Adults with impaired capacity and adults who lack capacity. 
• Byrick, K., & Walker-Renshaw, B. (2016). A Practical Guide to Mental Health and the Law in Ontario. Ontario Hospital Association.
• Ontario Human Rights Commission. (n.d.). 16. Consent and capacity. Retrieved from https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/16-consent-and-capacity