Mental health law and apprehension under the Mental Health Act

By 22:40 on Calder Street, Adam was calmer, but his situation had not changed. He had not slept properly in five days, had eaten almost nothing, still believed the lights were watching him and said that he would 'deal with' the neighbour if the watching did not stop. Morales asked whether he would come to the hospital to talk to a doctor about sleep and the cameras. He said no. His sister Claire, on speakerphone, asked him to go. He said no again, quietly. Kaplan now had a legal decision to make, and Desjardins tells the class that this is the moment where knowing the law exactly matters most.

Voluntary first

The Mental Health Act of Ontario is built on the principle that people should receive care voluntarily wherever possible. Most people admitted to psychiatric units in Ontario are informal or voluntary patients, who came on their own or agreed to admission. A person who agrees to go to hospital with officers, as Maya did in lesson 7, is not apprehended; they are being helped. The Act's powers to take a person to hospital against their will are exceptions, with strict tests, because detaining a person who has committed no offence is one of the most serious things the state can do. Other provinces have their own mental health acts with similar structures but different wording, such as section 28 of British Columbia's Act and section 12 of Alberta's.

Three routes to an assessment

Ontario's Act provides three main routes for bringing a person to a hospital for a psychiatric assessment against their will. Under section 15, a physician who has examined the person within the past seven days can sign an application for psychiatric assessment, known as a Form 1, if the legal criteria are met. A Form 1 authorizes police to take the person to a psychiatric facility, and authorizes the facility to detain the person for up to 72 hours for assessment. Under section 16, any person, often a family member, can go before a justice of the peace and give information under oath; if the justice is satisfied that the criteria are met, they can issue an order for examination, known as a Form 2, which authorizes police to take the person to a physician. A Form 2 is valid for seven days. Under section 17, a police officer can act directly, without any form, when the officer's own observations and information meet the test and it would be dangerous to wait for the section 16 process.

The section 17 test

Section 17 has several parts, and Desjardins insists that officers be able to state each one in their notes. First, the officer must have reasonable grounds to believe that the person is acting or has acted in a disorderly manner. Second, the officer must have reasonable cause to believe that the person has threatened or attempted, or is threatening or attempting, to cause bodily harm to themselves; or has behaved or is behaving violently toward another person, or has caused or is causing another person to fear bodily harm from them; or has shown or is showing a lack of competence to care for themselves. Third, the officer must be of the opinion that the person is apparently suffering from a mental disorder of a nature or quality that will likely result in serious bodily harm to the person or another, or in serious physical impairment of the person. Fourth, it must be dangerous to proceed under section 16. If all parts are met, the officer may take the person into custody to an appropriate place for examination by a physician.

Kaplan walks the class through her reasoning on Calder Street. Disorderly manner: Adam had smashed the hallway light and had been shouting and banging for an hour. Violence or fear: he had damaged property while shouting and had told Mrs. Halverson, through her door, that he would make the watchers stop, which caused her to fear for her safety. Apparent mental disorder likely to result in serious harm: he had a known diagnosis of psychosis, was not taking treatment, had fixed beliefs that his neighbour was watching him, had said he would deal with her, and had not slept or eaten for days, so there was a real risk of serious harm to her and of serious physical impairment to him. Dangerous to proceed under section 16: a Form 2 would take hours, and leaving Adam alone that night with those beliefs, next door to the woman he blamed, was not safe. Morales, as a clinician, agreed with the assessment. Desjardins notes that her agreement helped but did not replace Kaplan's own judgment, because the legal power belonged to the officer.

Desjardins stresses what the test does not allow. A diagnosis alone is not enough. Odd behaviour, being homeless or refusing treatment are not enough. A family member's wish that the person go to hospital is not enough. An officer who uses the power simply because it is late and the person is difficult is acting unlawfully. Courts have treated a mental health apprehension as a detention under the Charter, so section 9 protects against arbitrary detention, the person must be told promptly why they are being taken, and they have the right to retain and instruct counsel, though they may not be able to exercise it until they reach hospital.

Carrying out the apprehension

Kaplan explained her decision to Adam before acting. 'Adam, I'm worried about you and about your neighbour. You haven't slept in days and you're frightened. I'm going to take you to the hospital tonight to see a doctor. This isn't an arrest, and you haven't been charged with anything. You have the right to talk to a lawyer, and I'll help you do that when we get there.' She asked whether he wanted to bring his jacket and his phone, and whether he wanted Claire to meet them there. He was upset, but he put on his jacket.

Port Ardent policy allows officers to transport a person taken under mental health law without handcuffs when an assessment shows it is safe, and requires officers to record their reasons either way. Kaplan judged that Adam was calm and cooperative, conducted a pat-down search for safety with his agreement, explaining each step before she did it, and transported him in the back of the co-response car with Morales following. Desjardins tells the class that handcuffs on a person who has committed no crime and is cooperating can feel deeply humiliating and can damage trust for years, but that officers must also protect themselves and the person. The decision should be made thoughtfully, not by habit.

At the hospital: section 33 and the transfer of custody

Under section 33 of the Act, an officer who takes a person to a psychiatric facility must remain there and keep the person in custody until the facility takes custody of them. In practice, that has often meant officers waiting for hours in emergency departments. Ontario's Police-Hospital Transition Framework, developed by health and justice partners, encourages hospitals and police to agree on a quick, safe handover, with a target of transferring custody within about half an hour of arrival where possible. Many hospitals have since adopted transfer protocols, though waits remain long in some places.

Kaplan and Adam arrived at Port Ardent General at 23:05. A triage nurse saw him within ten minutes, but the emergency physician did not accept custody until 01:40, two hours and 35 minutes later. Kaplan and Morales stayed with him the whole time. Claire arrived at midnight. Morales says the wait was not wasted: Adam talked with his sister and became calmer, and the doctor who saw him at 01:40 knew a great deal about him from Morales's notes.

Port Ardent hospital waits

Waiting at hospital is one of the largest costs of mental health calls. The program below summarizes the time from arrival at hospital to the hospital accepting the person, for Port Ardent's mental health transports in 2025.

# Minutes from arrival at hospital to handover, Port Ardent mental health transports, 2025
# (minutes rounded up to the group's upper limit, number of transports)
groups = [(30, 41), (60, 73), (120, 118), (180, 96), (240, 52), (360, 31), (480, 9)]
n = sum(c for m, c in groups)
cum = 0
for limit, count in groups:
    cum += count
    print(f"within {limit:3} minutes: {cum:3} of {n}  ({cum / n:.2f})")
officer_hours = sum(limit * count for limit, count in groups) / 60 * 2   # two officers each
print("upper estimate of officer-hours spent waiting:", round(officer_hours))

within  30 minutes:  41 of 420  (0.10)
within  60 minutes: 114 of 420  (0.27)
within 120 minutes: 232 of 420  (0.55)
within 180 minutes: 328 of 420  (0.78)
within 240 minutes: 380 of 420  (0.90)
within 360 minutes: 411 of 420  (0.98)
within 480 minutes: 420 of 420  (1.00)
upper estimate of officer-hours spent waiting: 2167

Only about one transport in ten was handed over within half an hour, and about one in four within an hour. Almost half waited more than two hours. Desjardins says that hospitals face real pressures, including crowded emergency departments and a shortage of psychiatric beds, and that the solution is a shared protocol, not blame. Port Ardent and the hospital signed a new transfer agreement in January 2026, and the course will look at its early results in lesson 10.

Other powers and duties

Ontario's Act also allows a physician to issue a community treatment order, which lets a person with a history of repeated admissions live in the community on a treatment plan. If the person does not comply, the physician can issue an order for examination, known as a Form 47, which authorizes police to bring the person for examination. Officers should also know that a person taken under the Act keeps their rights at hospital, including the right to be told why they are being held, to contact a lawyer and, if they become an involuntary patient, to apply to the Consent and Capacity Board.