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Saturday, April 19, 2014
Saskatchewan Justice

The Mentally Disordered Persons Act provides that the chief psychiatrist of a facility may have a patient of that facility examined by a physician to determine whether the patient is competent to manage his or her estate. If he or she considers it advisable, the chief psychiatrist may also make arrangements for any person to be examined to determine that person's competence to manage his or her own estate.

If a patient or any person is found incompetent, the chief psychiatrist shall:

  • issue a certificate of incompetence in respect of that person;
  • forward the certificate to the Public Guardian and Trustee; and
  • notify the patient and his or her nearest relative of the issue of the certificate, and of their right to apply to a review panel for a review of the certificate.

Facility means a mental health centre, psychiatric ward or mental health clinic as defined in The Mental Health Services Act.
Certificates of incompetence lapse one year after their issue unless:

  • a property guardian has been appointed for that person under The Adult Guardianship and Co-decision-making Act;
  • proceedings have begun under The Adult Guardianship and Co-decision-making Act to appoint a property guardian; or
  • the Public Guardian and Trustee is property guardian for that person.

A person found incompetent may be examined to determine whether he or she is competent to manage his or her estate:

  • at the person's request;
  • at the request of the person's nearest relative; or
  • if the chief psychiatrist considers it advisable.

The person to be examined may be examined in the province or state in which he or she lives. The physician designated by the chief psychiatrist to conduct the examination must be a physician in good standing in the province or state in which the examination is made. The examining physician then notifies the chief psychiatrist of the person's competence or incompetence.

A person found incompetent or the person's nearest relative may appeal the decision to issue the certificate of incompetence, in writing, to the chairperson of the review panel. The grounds for appeal are that the certificate ought not to have been issued or that it should be revoked.

The review panel must notify the Public Guardian and Trustee, the chief psychiatrist of the facility in which the person is an in-patient, or the chief psychiatrist who arranged for the examination. The review panel must also immediately carry out any investigation that it considers necessary and may invite any persons affected by the review to testify or give evidence.

The person found incompetent (the appellant) has the right to be present when oral evidence is presented to the review panel or to be represented by any other person if, in the review panel's opinion, appearing would be detrimental to the appellant's health.

The review panel must decide whether the certificate of incompetence is to be revoked or remain in effect. The chairperson shall forward a written report of the review panel's decision, within 14 days of the day the appeal was received, to:

  • the appellant or the nearest relative if he or she brought the appeal;
  • the chief psychiatrist of the facility in which the appellant is an in-patient or the chief psychiatrist who arranged for the examination; and
  • the Public Guardian and Trustee.

Only one appeal to the review panel is allowed with respect to the issuance of a certificate of incompetence, except that an appeal may be made every time an in-patient is to be released and is declared incompetent, or every time a request for re-examination has been made.

An appeal from the review panel's decision is to the Court of Queen's Bench. The person who made the appeal may apply to the Court for an order revoking the certificate of incompetence within 30 days of the date of the review panel's decision. The Court may require the person found incompetent to submit to a medical/psychiatric examination. The Court's decision is appealable to the Court of Appeal, with leave of a judge of the court, on a question of law or jurisdiction.

When a patient is to be released from a facility, he or she must again have a medical examination to determine competence. If the patient is found competent, the chief psychiatrist issues a certificate of competence. The same notification process applies as for a certificate of incompetence except with respect to the review panel.

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