‘Keep fighting’ for change in flawed public trustee system, says Manitoban who spent years in guardianship

Manitobans placed under the control of the province’s public guardian deserve more than a week to fight for their independence — and a better way to appeal the decision.

Those are among several recommendations experts and those in the system say would improve Manitoba’s flawed public guardian and trustee agency. 

“We can definitely do better as a province,” said Lisa Engel, an associate professor in the University of Manitoba’s department of occupational therapy.

The Public Guardian and Trustee of Manitoba is an arm’s-length government agency that makes the personal and financial decisions for more than 2,700 Manitobans deemed mentally incompetent by a doctor.

A recent CBC News investigation found Manitoba’s public guardian and trustee system is full of gaps, leaving many inside it feeling they have no way out.

‘Not in Canada’

Winnipegger Lorne Kiss, 58, was under the public trustee for over two and a half years. His experience illustrates how a person can fall through the cracks, he said.

“If someone told me this story, I would not believe them. I would say, ‘You’re crazy. There’s no way that could happen to a human being. Not in Canada, anyway,'” said Kiss.

He was working full time as a forklift operator, but fell on hard times and was living at Siloam Mission’s shelter, struggling to find housing and spending all his money gambling. 

In 2018, one of his support workers asked him to see a psychiatrist. That doctor decided he was mentally incompetent, signing what is called a Form 21, or certificate of incapacity — which indicates a person is “incapable of managing his or her property or of personal care.”

Kiss said he had no idea that was the reason for the appointment.

WATCH | ‘There’s no way that could happen to a human being,’ says Lorne Kiss:

Documents provided by Kiss show concerns were raised by Siloam Mission staff about his compulsive gambling, arguing he was incapable of managing his own money and had threatened suicide. 

After the psychiatrist signed the Form 21, it went to Manitoba’s chief psychiatrist for final approval. 

By the time Kiss learned he’d been deemed mentally incompetent, it was too late to object.

7-day deadline

Under Manitoba’s Mental Health Act, a person is only given seven days to respond to an order of committeeship — the language used to describe putting someone under the care of the public guardian.

After that deadline, a person must either fight the order in court or get themselves reassessed to get out of the guardianship. Under the legislation, there is no automatic review of a person’s capacity and no end date. 

“One letter was mailed Dec. 3, and the other one was Dec. 18. And I don’t get them till Christmas Eve. How does that happen?” Kiss said.

Dr. Jim Simm, Manitoba’s current chief psychiatrist — who wasn’t in that role when Kiss was assessed — said he’s not sure how the seven-day deadline was chosen, and said he’s open to hearing arguments for why the deadline should be extended.

Experts CBC spoke to said a better way is needed to communicate with someone who has been found mentally incompetent, including clarity about what that means for their future and their options to contest the assessment.

In 2013, British Columbia’s ombudsperson released an investigation into that province’s public guardianship. That led to changes to B.C.’s legislation, to ensure a person is notified they have been placed under guardianship and to allow  adequate time to respond to the notice.

In Manitoba, the only provision in the legislation is that the person affected must be sent a letter.

Stuck in guardianship more than 2 years

After his guardianship order, Kiss got housing with the help of a support worker. Once housed, he said he was able to address his gambling problem, because he wasn’t getting kicked out of a shelter every day with nowhere to go.

Five months later, a psychiatrist wrote a letter to the chief psychiatrist stating Kiss wasn’t mentally incompetent.

“This does not appear to be a matter of impaired cognitive capacity, but rather an issue related to [gambling] addiction,” the doctor wrote on May 20, 2019. 

The doctor questioned the validity of the order, considering Kiss never got the letters stating he was incompetent because Siloam Mission “misplaced” them.

Even after that letter, it took Kiss more than two years to gain his freedom. He waited months for a cognitive test, after which it was decided he could skip that part and just meet with a psychiatrist.

After a 10-minute meeting, he was released from guardianship on Aug. 12, 2021.

“Took 32 months. Caused me to have a heart attack,” said Kiss, who believes the stress of the situation caused his health to deteriorate.

The three people CBC profiled in its investigation into the public guardian all struggled with getting reassessed, finding that difficult to navigate because no one explained to them what needed to be done.

Manitoba’s chief psychiatrist said he is open to legislation that allows for an automatic review of mental capacity — but that could also strain the system’s resources.

 “There’s cases where people are younger, and have a mental condition that may improve with treatment,” and so should be reassessed, said Simm.

But automatic reassessments would require additional resources, and “the Mental Health Act doesn’t create resources if there’s a shortage,” he said. 

Simm said he has never put someone under guardianship because of a gambling addiction.

Brandon Trask, an assistant professor in the University of Manitoba’s faculty of law, said it’s time for the Mental Health Act to get a “comprehensive review” around the public guardian.

There should be a provision where people facing guardianship are given a lawyer, he said.

“That would streamline the entire process and, I think, build in some procedural safeguards that perhaps don’t exist at present,” he said.

Kiss also says people under guardianship need legal representation. 

“If I would have gotten a lawyer, I would have gone to court to get myself off the public trustee,” he said. 

Look at Ontario model: occupational therapist

In Ontario, the public guardianship process is not doctor-led. The form that indicates someone is mentally incompetent has to be completed by qualified capacity assessors, rather than any doctor.

The Ontario assessors are doctors, nurses, occupational therapists or social workers who have completed training on capacity assessment. 

The U of M’s Engel, who trained as an occupational therapist in Ontario and worked in British Columbia, says Manitoba needs better training on assessments and more options for staff. She supports looking at Ontario’s model, which mirrors what’s happening across Canada.

“Most jurisdictions in Canada have actually changed to a multidisciplinary, specialized area where it’s not that you have a certain degree.… Different professionals can get extra training,” she said.

The Manitoba government said it couldn’t comment on any plans to change the Mental Health Act, citing a blackout on announcements due to a June 18 byelection in Winnipeg’s Tuxedo constituency.

Bernadette Smith, the provincial minister responsible for mental health, said in a prepared statement the province “recognize[s] our responsibility for the safety of some of Manitoba’s most vulnerable and improving legislation to make this possible.”

Lorne Kiss urges anyone under guardianship to keep fighting for that change. 

“Don’t give up. Keep fighting. Keep knocking on every single door you can. Because sooner or later, one of those doors might open,” he said.

“Ask for answers, ask for accountability, and know the system.”