This paper is a brief overview and investigation of the Public Guardian and Trustee (PGT) of Manitoba and the legislation which directs people under the care and committeeship of the PGT. We have focused primarily on The Mental Health Act (MHA) and The Vulnerable Persons Living with a Mental Disability Act (VPA). Our focus is directed in this way because committeeship as provided for via the MHA and the VPA leads to the greatest possibility of infringement on individual rights and freedoms as protected under the Canadian Charter of Rights and Freedoms. While the MHA and the VPA serve a valid and important social and health care purpose for Manitobans any legislation which serves to take away individual rights and freedoms deserves to be highly scrutinized. We briefly describe the relevant law, investigate gaps in the system, theorize failures with committeeship, and explain the options for people under an order of committeeship.
The Mental Health Act and The Vulnerable Persons Living with a Mental Disability Act are Manitoba’s guidelines for services and protections regarding people dealing with mental health concerns. These Acts created the rules and regulations not only for people who qualify under the Acts, but also the care facilities, medical personnel, and substitute decision makers (SDM). While these Acts are important in creating the standard of care for people dealing with mental health concerns, the legislation also has the ability to take away individual rights and freedoms. The MHA, as stated by the government, “ aims to strike a balance between two principles: the rights given to all citizens under The Canadian Charter of Rights and Freedoms; and, society's obligation to provide care and treatment to those individuals who, at times, may not appreciate their need for treatment due to their mental illness.” This is an admirable and lofty goal, but it also demands a lot of scrutiny.
The MHA dictates requirements for treatment and mental health assessments. It lays out all aspects of care for individuals whether voluntary or involuntary. The Act defines mental disorder as, “ a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, but does not include a disorder due exclusively to a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act.” Parts 8 through 10 of the Act lay out the role of the PGT in the care and oversight of individuals who have been deemed unable to make decisions for themselves and have no other proxy.
The VPA is a more recent and cautious piece of legislation that replaced part two of The Mental Health Act. It defines mental disability as “significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years but excludes a mental disability due exclusively to a mental disorder as defined in section 1 of The Mental Health Act.” The VPA is legislation that is protective in nature, it establishes support services for people with mental disabilities as well as protection and emergency intervention policies. Similar to the Mental Health Act, the VPA creates the procedure for appointing substitute decision makers. However, the VPA creates a more involved process, which requires scheduled renewals and justification appointing power to a SDM. The VPA does a better job than the MHA, at quantifying what a substitute decision can do for the vulnerable person by specifically stating powers of SDMs in specific areas.
Both The Mental Health Act and The Vulnerable Persons Living with a Disability Act provide for appointment of committees or substitute decision makers via the office of the Public Guardian and Trustee. These provisions allow for oversight and management of individuals and their estates who qualify under the Acts. In theory committeeship acts in the best interest of qualifying individuals. Under the MHA, once an order of committeeship is issued an individual has to challenge the order for review to have it reviewed. Committeeship under the MHA gives control to the PGT to manage an individual's personal care and property. Committeeship under the VPA is slightly less intrusive on an individual’s rights and freedoms. The VPA requires justification for every decision making capacity taken away from an individual and mandates a review of orders of committeeship every five years. The office of the Public Guardian and Trustee holds executive power of individuals who qualify under the MHA and the VPA, which demands review and oversight.
It is important to recognize that the needs, lifestyles, and supports for the two main groups under the PGT are vastly different: aging individuals and those deemed mentally incompetent. While it is speculated and recognized that there is a high overlap between these groups, this report focuses on the gaps of analysis and research regarding those deemed mentally incompetent individuals (also known as ‘mental health clients’).
The 2017-2018 Annual Report from the Public Guardian and Trustee of Manitoba reports that in 2018 the PGT acted as committeeship for almost 2300 mental health clients (classified under the Mental Health Act), which represents an 8% increase from approximately 2100 in 2014. While this number may represent a small sector of those who are under committeeship in general, and an even smaller sector of the Manitoban population, the effects of being under the very impacting for mental health clients. The Mental Health Act does not structure the PGT to re-evaluate the necessity of their services for each client every five years as is the mandate of SDMs under the VPA. This lack of structure motivated towards independent living and empowered living is not necessarily realistic for aging individuals, but for mental health clients, the lack of accessibility to ‘take back’ authority in their lives is not easily attained, or even a case worker’s goal in the current PGT system.
Anecdotal evidence suggests that each PGT caseworker can have as high as 200 to 300 clients to be responsible for, and that most caseworkers are unable to meet or speak with their clients in person, given the limited size and capacity of the department. Caseworkers then rely primarily on social workers and other community support workers to supply adequate information on their clients. This chain of command can become very subjective and disconnected from the client, focusing on current basic necessities, rather than rehabilitating clients towards independent living.
Based on these facts and anecdotal information, we have some key areas of research that we highlight in regards to the current lack of analysis and research in the area of mental health clients under the PGT: (a) representation of visible minorities, (b) types of mental illness, (c) gender dynamics, and (d) income levels. Considering that committeeship under the PGT in Manitoba becomes a ‘last resort’ option when no family member or other closely connected individual is willing and able to fill the role, we recommend that research be done based on the above-mentioned categories, so that PGT caseworkers, social workers, and other related individuals are better informed and able to address the relevant issues for their clients.
(a) Representation of Visible Minorities
Unfortunately, currently people of colour and specifically Indigenous Manitobans are overrepresented among those living below the poverty line. Analysis of who is represented as mental health clients under committeeship of PGT may show data reflecting other systemic issues. We believe from a human rights perspective it is very important to understand how systemic barriers impact mental health and lack of relevant support.
(b) Types of Mental Illness
As each individual mental health client is unique, how a client experiences and is able to live through a mental illness diagnosis is unique also. However, gathering data and analyzing trends on which diagnoses are most represented among mental health clients could guide how mental health clients are supported by their PGT case workers.
(c) Gender Dynamics
As a matter of interest, we suggest that gathering data analyzing which genders are most represented in mental health clients, may help caseworkers to tailor their support and services in a more meaningful way, and address systemic issues of gender discrimination.
(d) Income Levels
Anecdotal evidence suggests that there are high numbers of those under the committeeship of the PGT who are living below the poverty line. Considering that economic instability negatively and disproportionately affects those suffering from mental health issues, we suggest it is imperative to invest in understanding the connections between these two challenges. By addressing income and basic material needs, we hypothesize that this could help those living with mental health issues to be more supported in a holistic way, which could potentially prevent unnecessary diagnoses.
By filling these four gaps of research and statistics, correlations between these areas could be identified which would lead to a more thorough understanding of the challenges and impacts mental health clients face. We suggest that supporting caseworkers, social workers, and other related individuals to address these other factors would help facilitate greater understanding of their clients under the PGT, and could shape and promote a more rehabilitated and empowering structure for mental health clients long term.
Options for Those Under PGT
For those under an order of Committeeship, there are a few different instances when a Committee’s authority will end. First, the incapable person regains capacity. The committee or previously incapable person needs to bring a motion to court requesting that they be declared capable and to remove the committee. In this situation, a court will require affidavits from two doctors stating the Committee is no longer needed, and the reasons for this.
The second instance is the death of the Committee, or inability or unwillingness to continue. In a situation of death, a new Committee must be appointed. It is the duty of the executor or administrator of the estate to pass the Committee’s accounts and arrange for a transfer of assets to the new Committee. When the situation is inability or unwillingness to continue, they must apply to court to be removed and have someone else appointed. Here, the rules for appointment of a committee apply.
The final instance is the removal or replacement of a Committee. An application to remove a Committee can be made by an interested family member or friend, or the PGT themselves. This typically comes with an application to appoint a new Committee. A court might remove or replace a Committee in the following situations:
i. Accounts are not approved by the Master
ii. Committee has not complied with provisions of committeeship order
iii. Committee has not acted in best interests of person or is in conflict of interest with them
iv. Committee has neglected their duties to the person or acts improperly
v. Committee is unable or unwilling to continue
vi. Incapable person regained capacity, no longer needs a committee
If a Committee is removed, they will need to pass their accounts. If there has been mismanagement of assets resulting in a loss to the incompetent person, the former committee may be called upon to compensate for their losses.
For those under the Mentally Incompetent Adults Act, the PGT may be removed as Committee when the client regains capacity to manage on their own, or the court chooses to appoint another person to replace them as Committee. In order to appoint another person replacing the PGT as Committee, an application can be made to the Court of Queen’s Bench naming someone as Committee of just the property, or the property as well as the personal care of a person. This is called a Court Appointed Committee, or a Private Committee, and typically requires the services of a lawyer. A court order appointing someone as a Committee may state that it will only be valid for a certain time period.
For those under the Vulnerable Adults Act, the Committee can be entirely taken away when the adult shows they have built a support network that is now able to help them as well as teach them how to manage more independently, such as having an understanding of money.
What to Look for as a Social Worker
As a social worker working with people under the care of PGT and under an order of Committeeship, there are a few things to keep in mind.
Many times, the Committee does not meet or ever speak to the incapable person. As such, the information given by the social worker to the Committee is very important. Social workers must be transparent in the information given and maintain professionalism at all times. They must ensure that if there is the possibility that the incapable person does not really have to be in the system and under an order of Committeeship, this option is explored and communicated to the PGT and the Committee. As stated earlier in this report, there are many people who are placed under an order of Committeeship who never should have been placed there or have through time outgrown this order. Social workers must work hard to ensure the number of people in these situations declines.
Removal of Committee by family member or friend might occur when
- Accounts are not approved by Master
- Committee has not complied with provisions of committeeship order
- Committee has not acted in best interests of person or is in conflict of interest with them
- Committee is unable or unwilling to continue
- Incapable person regained capacity, no longer needs a Committee
Under Mental Health Act
- The Committee or previously incapable person needs to bring a motion to court requesting that they be declared capable
- Requires affidavits from two doctors stating the Committee is no longer needed, and why
- Application needs to be made to Court of Queen’s Bench
Under Vulnerable Persons Living with a Mental Disability Act
- Committee can be taken away when adult shows they have built a support network that is able to help them and teach them how to manage more independently