Certificates of Incapacity - Form 21 of the Mental Health Act

A message from the Office of the Chief Provincial Psychiatrist of Manitoba, Dr. Jim Simm

Certificates of Incapacity can be completed by a physician (at this time no other health care professional can complete the form) when a client is repeatedly or continuously unable, because of a mental disorder, care for themselves and/or to make reasonable decisions about matters relating to their person or property.

Last year, the office of the Chief Psychiatrist received 450 of these Forms from hospitals, nursing homes, psychiatric facilities, and the community. The completion of a Form 21 is a first step in taking away a client's constitutional rights and should generally be a last resort taken by the health care team.

Unfortunately, many of the forms that arrive at our office are incorrectly completed or do not contain adequate collateral information resulting in Forms being returned to the physician. This results in frustration to the health care team, to the patient and their families and can often lead to delays in patient care. The following are some common errors our office sees in the completed Form 21s. At the end of this article is a link which provides more detail on the correct completion of these forms.

1.    The Form must be dated correctly and received by the Office of the Chief Provincial psychiatrist within 30 days of the examination of the patient.

2.    The Form must be legible and completed in the physician's own handwriting.

3.    The five lines on the Certificate of Incapacity under Section 4 do not have to contain a complete history of the patient but needs to show evidence of a mental disorder causing repeated and continued marked difficulties in managing one's affairs. Some common examples are

a)    Ongoing confusion, disorientation, memory deficits

b)    Profound difficulties in executive functioning, lack of judgement and/or insight

c)    Lack of realistic thought (e.g. delusional) regarding personal care or financial matters

d)    Repeated inability to adequately care for self 

4.    Section 4 of the Form 21 cannot simply say “see attached”. There must be enough information on the Form to indicate that the person has a mental disorder that makes them incapable of managing their personal affairs or property.

5.    A psychiatry consult is often requested before the Form 21 is completed. We receive many Forms in our office that simply state “psychiatry says patient is incompetent”. While the psychiatric consult is welcome as part of the collateral information accompanying the Form 21, the actual completion of the Form 21 must be based on your examination.

Having the consultant complete the Form 21 would be most expedient, however this does not always occur. If a consultant is called to see the patient, there should be a direct discussion about what needs to be on the Form and who is going to complete it. The consultant should also advise of the necessity of including a ‘social history’ with the Form.

If a consultant is asked to see a patient to assess for competency or capacity, in almost all cases there have been observations made during your direct examination of the patient that has led to questioning their ability to manage their affairs, and your direct observations can inform section 4.

6.    The accompanying social history with the Form 21 is often completed by a social worker or other allied healthcare professional.  More information about the social history can be found at the link at the bottom at the bottom of this article.

7.    In some cases, our office receives copies of the entire patient’s chart. This is not required and is quite time consuming. If information is sent with the Form 21 it cannot be judged as to its importance and relevance until it is read in its entirety.  A reasonable concise social history, perhaps accompanied by any copies of consultations done to assess the patient’s capacity is sufficient.

8.    Residents of all specialties can complete a Form 21. If this is the case, it is most helpful to include the attending physician’s information. We receive many Forms that have been completed by residents, and if we need to contact them, not infrequently they have moved onto another rotation and are difficult to locate, and unable to make any corrections in submitted Forms.

Click here for further information on Form 21s and the accompanying social history. 

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Dr. Jim Simm

Chief Provincial Psychiatrist