This Practice Direction addresses the timelines and the process when a physician renews a Community Treatment Order (CTO) for the second time and every second renewal thereafter and where the person subject to the CTO elects not to apply or participate in the hearing.

The intent of the Practice Direction is to ensure that such deemed applications are reviewed in a manner consistent with the legislation in a manner that supports the Board’s ability to conduct fair, timely, cost effective and efficient hearings.

The Legislation and Principles:

• A person subject to a CTO shall be deemed to have applied to the Board for a review of the CTO “when a community treatment order is renewed for the second time and on the occasion of every second renewal thereafter” (section 39.1(3), Mental Health Act (MHA)). These are commonly referred to as “deemed applications.”
• The physician who is so renewing the CTO “shall give notice of the renewal to the Board in the approved form” (section 39.1(4), MHA). The approved form is a Form 48, part 2.
• A deemed hearing only occurs after the person subject to the CTO has received rights advice and declined to apply to the Board themselves.
• Absent consent, hearings before the Board shall commence within 7 days of application. However, giving notice within such a timeline, to a person who resides in the community, who has not themselves applied for a review and who may have elected to not participate in the hearing is impractical and often impossible.
• Balancing the need to provide adequate Notice of Hearing to the parties with the spirit of the legislation for a prompt review, the below timelines will be followed for deemed hearings when the person subject to the CTO does not wish to participate or have counsel participate on their behalf.

Process and Timelines for deemed applications:

• Notice to the Board of the requirement to schedule a hearing for a deemed application must be provided to the Board within seven days from the date that the CTO was issued.
• When notice is provided to the Board within seven days, and the physician has also provided their availability for the hearing within four weeks of the application date, the Board will make every effort to schedule the hearing to their availability.
• If notice of the requirement to schedule a hearing for a deemed application is provided beyond the seven-day timeframe, the hearing will be scheduled, without consultation, within seven days of the application date.
• Where a Notice of Hearing has been issued to the parties, any request to reschedule that hearing must be made no later than five business days before date to allow notice of the rescheduled date to be given to all parties.
• If an application is made within seven days from the date that the CTO was issued, any rescheduling request must be for no later than four weeks from the original hearing date. If the application is made beyond seven days from the date that the CTO was issued, the rescheduling request must be for no later than seven days from the original hearing date.
• If, prior to the scheduling of the deemed hearing or at any point thereafter, the person subject to the CTO indicates a wish to apply themselves for a review or to contest the CTO, the hearing of the matter will be scheduled on the basis of the person-initiated application, whether received in writing or by an oral request to participate in the deemed hearing before or at the hearing. This may require a change in hearing date, time or method. Counsel will be appointed in accordance with Policy Guideline 2.

Information to be provided with the notice of the renewal:

• When notice is provided by the physician of the need to schedule a deemed application to review the CTO, the physician shall provide:
  • The current mailing address, telephone number and, if possible, the email address of the person subject to the CTO.
  • Three dates and times the physician is available to conduct the hearing. The Board will make efforts to schedule the hearing to the physician’s availability.

Documents to be provided prior to the hearing:

• The parties shall provide documents in accordance with Policy Guideline 4 as will notice of any preliminary issue(s).

Effective Date: This Policy Guideline is effective September 1, 2023.