Public Health Act Guidance NoteDRAFT November3, 2014
People Who are in Need of Care
Note: This guidance note is to provide general orientation to thePublic Health Act(PHA) and related legislation for public health officials who are responsible for implementing the PHA and others affected by the PHA. This guidance note is not legal advice and individuals should consult with their legal counsel in determining whether or to what extent the PHA may apply to a particular circumstance. If there is a conflict between the guidance note and the PHA, its regulations or related legislation, this guidance note is superseded by the latter authorities to the extent of any conflict.
Purpose: To provide medical health officers with guidance to deal with people who are in need of care.
Background: In rare circumstances medical health officers may be asked to look into a situation where someone is living in conditions that are a health hazard, the person is not dealing with health hazard, and if the person stays there could be a danger to their health. These requests arise when there are no other means of dealing with the person through the use of an Act that is more appropriate to their circumstance, such as the Adult Guardianship Act or the Mental Health Act. Typically this is a situation in which the person cannot be deemed to be incompetent or be deemed to be a person with a mental disorder as defined under the Mental Health Act, but it is clear that an intervention is necessary to protect the persons’ health, perhaps despite of their wishes.
Relevant Sections:
- PHA 50, 49 (4)
- Public Health Inspections and Orders (PHIO) Regulation 5 (4) (b) (attached)
Issues, Guidance, Questions and Answers:
Prior to taking action under the PHA medical health officers should assure themselves that actions under other statutes more appropriate to the situation are not available.
Prior to taking action the MHO should provide the person with the option of voluntarily complying with the actions that the MHO is contemplating requesting a court order.
An application for an order to apprehend, transport, and detain a person requires approval of the Provincial Health Officer and application to the Supreme Court.
The Rules of Court under the Court Rules Actapply to proceedings. These rules provide a generic framework for court proceedings such as providing notice, holding a hearing, and the necessary forms.
Legal advice should be sought prior to proceeding as lawyers are well familiar with initiating proceedings under the Rules of Court.
In the application the MHO should include a request for apprehension, transport and detention, their recommendation for what should be included in the order including the place of detention and the terms for returning to their residence.
It is important that the MHO request as part of this application to the court that these matters are dealt with in private to preserve the confidentiality of the medical history of the person involved. Personal information about family members should be limited to only that necessary to support the application.
Sometimes alternate care arrangements to facility care can be arranged and if this is an option the person may wish to choose this rather than be detained. In that instance the judge can suspend the order as long as the person is in the alternate care arrangement. However, should the person leave that arrangement, perhaps to return home, the order comes in to effect and the person may be apprehended, transported, and detained as per the judges order.
If a warrant to apprehend, transport, and detain the person is desired that should also be made at the same time to the Supreme Court in the applications, although 49(4) refers to the Provincial Court (as per Interpretation Act s.44).
Legislation excerpts:
Public Health Inspections and Orders Regulation Excerpts
5(4) An application to court for
(b)an order described in section 50 (3) or (4) [protect personal health] of the Act
may be made by filing an application in accordance with the Rules of Court.
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