More Than a Change in Privileges: Form 5, Voluntary Status, and the Right to Leave
Melissa Lukings, JD, BA
Barrister, Solicitor, and Notary Public
Lukings Law / CARE Law Collective
Wednesday, August 19, 2026
A Form 5 can easy to misunderstand. On a busy psychiatric unit, the change from involuntary to voluntary status may appear relatively minor. The patient remains in the same hospital, on the same unit, under the care of the same treatment team. What changes may be most immediately noticeable are the patient's privileges: they may be permitted to leave the unit, go outside, smoke, or have greater freedom within the hospital.
But a Form 5, Change to Informal or Voluntary Status, does much more than change a patient's privileges.
It changes the patient's legal status.
And Ontario's Mental Health Act is remarkably clear about what voluntary status means.
Section 14 of the Mental Health Act provides:
“Nothing in this Act authorizes a psychiatric facility to detain or to restrain an informal or voluntary patient.”
That provision should be at the centre of any discussion about a Form 5.
When an attending physician completes a Form 5 for an involuntary patient, the physician ends that patient's involuntary status. The hospital is no longer relying on the patient's involuntary certificate as authority to detain them. Section 14 then matters in a very practical way: the patient is voluntary, and the Mental Health Act does not authorize the psychiatric facility to detain or restrain a voluntary patient.
The patient may choose to remain in hospital. Their psychiatrist may strongly recommend that they remain. Their family may desperately want them to stay. The treatment team may believe that continued hospitalization is the safest or most clinically appropriate choice.
But recommending that someone stay and having legal authority to make them stay are different things.
There is another significant consequence. If an involuntary patient has applied to the Consent and Capacity Board (CCB) using a Form 16 to challenge their involuntary status, the issuance of a Form 5 ends that involuntary status and the Form 16 hearing is cancelled.
These consequences matter because involuntary psychiatric admission is fundamentally about liberty. A Form 5 is not simply paperwork documenting that a patient now has more freedom around the hospital. It marks the end of the involuntary status under which the patient had been detained.
What Does a Form 5 Actually Do?
Ontario's Mental Health Act establishes the circumstances in which a person can be detained in a psychiatric facility as an involuntary patient.
While a valid involuntary certificate is in effect, section 20(4) of the Mental Health Act provides authority for the patient to be detained, restrained, observed, and examined in the psychiatric facility during the applicable period.
Sometimes, however, the attending physician concludes before that period expires that the patient should no longer remain involuntary.
That does not necessarily mean the patient has recovered or no longer needs psychiatric care. The physician may continue to believe that hospitalization is clinically appropriate.
But needing psychiatric care and meeting the legal requirements for involuntary detention are different questions.
Section 20(7) permits an involuntary patient whose authorized period of detention has not expired to be continued as an informal or voluntary patient when the attending physician completes the approved form.
That is the Form 5.
The significance of the physician's decision is not that the patient has earned additional privileges.
The physician has ended the patient's involuntary status.
Section 14 then draws the important distinction. The Mental Health Act does not authorize a psychiatric facility to detain or restrain an informal or voluntary patient.
A voluntary patient is therefore not involuntary with better privileges. They are not involuntary until they try to leave. And they are not involuntary until their psychiatrist decides that they are ready for discharge.
They are voluntary.
Form 5 = More Than Smoking or Grounds Privileges
The distinction between status and privileges can easily become blurred.
An involuntary patient may have restrictions on leaving the unit or hospital grounds. When that patient becomes voluntary, some of those restrictions may change at the same time. They may suddenly be permitted to go outside, smoke, or move around the hospital more freely.
Those practical changes may be the first thing the patient notices. They may also be how the Form 5 is explained.
But a Form 5 is not a smoking pass or a grounds-privilege form.
If a patient is told:
“We're making you voluntary so you can go outside to smoke,”
Then the patient might reasonably understand that to mean:
“You still have to stay in hospital, but now you have more privileges.”
That is very different from explaining:
“Your involuntary status has ended. We recommend that you remain in hospital, but you are now here voluntarily.”
The second explanation communicates what has actually changed.
The difference is about liberty.
What Patients Need to Know
If you receive a Form 5, the most important change is not what you are now permitted to do on the unit.
A Form 5 means that your involuntary status has ended.
You may choose to remain in hospital voluntarily. You may agree with your psychiatrist that continued hospitalization is helpful. Nothing about becoming voluntary requires you to leave.
But the reverse is equally important.
While you remain voluntary, you can also choose to leave.
Section 14 matters here. The Mental Health Act does not authorize the psychiatric facility to detain or restrain you simply because you remain a psychiatric patient.
Patients should not be left with the impression that they remain legally detained but have simply been given additional privileges.
What Families and Caregivers Need to Know
If your loved one has been involuntary, you may have understood that the hospital could prevent them from leaving even if they wanted to go home.
If you then learn that they have been made voluntary, something significant has changed.
The hospital is no longer relying on their involuntary certificate as authority to hold them there.
Your loved one may still be very unwell. Their psychiatrist may strongly recommend continued hospitalization. You may strongly believe they should stay. The treatment team may believe that remaining in hospital is the safest option.
Those concerns can all be genuine.
But a recommendation to stay is different from legal authority to make someone stay.
For families and caregivers, a Form 5 may therefore affect planning. If the patient decides to leave while they remain voluntary, the fact that others would prefer them to stay does not itself authorize continued detention.
What Physicians and Hospital Staff Need to Know
A Form 5 should not be thought of merely as a mechanism for loosening restrictions.
When a physician completes a Form 5, the physician is ending the patient's involuntary status.
That means the patient can exercise the choice that comes with voluntary hospitalization, including the choice to leave.
A patient may appear willing to remain in hospital when the Form 5 is completed and then change their mind. Perhaps they speak with family, a lawyer, or a rights adviser. Perhaps they simply learn what “voluntary” means.
That does not mean the patient has discovered a loophole.
Voluntary cannot mean voluntary only for as long as the patient agrees to stay.
This is where section 14 becomes particularly important. It does not create an exception simply because the treatment team would prefer another assessment before the patient leaves. If some other lawful authority is being relied upon to restrict the patient's liberty, that authority must actually exist.
If the intention is that the patient is free to go outside but not free to leave the hospital, that is no longer simply a question about privileges.
It raises a question about whether the patient is actually being treated as voluntary.
A Form 5 Cancels a Pending Form 16 CCB Hearing
A Form 5 also has an important consequence for a patient who has challenged their involuntary status before the Consent and Capacity Board.
An involuntary patient may use a Form 16, Application to Review Involuntary Status, to ask the CCB to review whether the statutory requirements for their involuntary detention have been met.
The hearing is an important safeguard. It allows an independent tribunal to review the physician's decision. The patient may have legal representation, challenge the evidence supporting their detention, present evidence, and make submissions.
But if the attending physician completes a Form 5 before the hearing, the patient is no longer involuntary.
The Form 16 hearing is cancelled.
On one level, the patient has obtained the immediate result they were seeking: they are no longer involuntary.
But the Board will also not determine whether the involuntary status the patient challenged should have been confirmed or rescinded.
In practice, a Form 5 may sometimes be issued after a Form 16 has been filed but before the scheduled CCB hearing. There can be entirely appropriate reasons for changing the patient's status at that point. The patient's circumstances may have changed, or the physician may conclude that the statutory criteria for involuntary detention are no longer met.
It is not necessary to speculate about why a Form 5 is issued in any particular case.
The consequence remains the same:
the patient becomes voluntary, the Form 16 hearing is cancelled, and the CCB does not decide whether the involuntary status should have been confirmed or rescinded.
That should be explained to the patient, particularly if the Form 5 is presented primarily in terms of privileges.
“You Have to Wait for the Psychiatrist”
One of the clearest tests of whether voluntary status is being understood properly arises when the patient actually decides to leave.
The patient says:
“I want to go home.”
Staff respond:
“You can't leave until the psychiatrist assesses you.”
There is an important difference between asking a voluntary patient to wait and requiring them to wait.
The hospital can ask the patient to remain. Staff can explain their concerns. The psychiatrist can ask to assess the patient. The treatment team can strongly recommend that the patient stay and discuss the risks of leaving.
The patient may agree.
That is voluntary decision-making.
But:
“We would like you to wait for the psychiatrist”
is different from:
“You are not allowed to leave until the psychiatrist sees you.”
If staff tell a voluntary patient that they are not permitted to leave, or physically prevent them from leaving, the issue is detention.
That brings us directly back to section 14:
What legal authority permits the hospital to detain this voluntary patient?
The fact that the psychiatrist would like to conduct another assessment does not, by itself, answer that question.
Nor does voluntary status itself create a general authority to detain a patient until the psychiatrist has had another opportunity to examine them.
If some other lawful authority applies, that is a different question. But the hospital cannot simply continue relying on an involuntary status that the physician has already ended.
Trying to Leave Does Not Reactivate the Old Form
A patient's decision to leave may create genuine clinical concerns. Circumstances can change, new information can emerge, and the Mental Health Act contains mechanisms that may become available if their statutory requirements are met.
Section 19, for example, addresses circumstances in which an attending physician may change an informal or voluntary patient's status to involuntary.
But that is a new exercise of statutory authority.
The patient's previous involuntary certificate does not simply reactivate when the patient says:
“I want to leave.”
Nor does wanting to leave, by itself, establish that the patient meets the requirements for involuntary detention.
If the hospital intends to restrict the patient's liberty again, there must be lawful authority to do so.
Until then, the patient remains what the physician made them:
voluntary.
Voluntary Does Not Mean “Well” or Necessarily “Capable”
A Form 5 does not mean that a patient has recovered. A voluntary patient may remain significantly unwell and may still benefit from continued hospitalization.
There is nothing inconsistent about a psychiatrist saying:
“I strongly recommend that you remain in hospital.”
while also recognizing:
“You are voluntary, and your former involuntary certificate no longer authorizes the hospital to make you stay.”
Clinical judgment asks whether the person should stay.
Legal status asks whether the person can be made to stay.
Those are different questions.
Voluntary status is also separate from capacity to consent to treatment. A patient may be voluntary and incapable with respect to a particular treatment, or involuntary and capable of making their own treatment decisions. A Form 5 changes the patient's admission status. It does not automatically decide other legal issues concerning treatment or capacity.
Patients Should Not Discover Their Liberty by Accident
There is a significant information and power imbalance in psychiatric hospitalization.
Hospital staff work with mental-health legislation and forms regularly. Patients generally do not.
For days or weeks, a patient's understanding may be very simple:
“I am on a form. I cannot leave.”
Then a physician signs a Form 5.
Legally, something fundamental changes.
Practically, almost nothing may look different.
The patient may remain in the same room on the same locked unit. The same nurses may control access through the doors. The same psychiatrist may remain responsible for their care.
Unless someone explains the Form 5, the patient may have no reason to understand that their involuntary status has ended.
A patient should not have to discover their liberty by accident.
They should not have to learn it from another patient, a family member, or only after speaking with a lawyer or rights adviser.
And they should not first discover what “voluntary” means when they try to leave and are told that they cannot.
More Than a Change in Privileges
The central point is simple.
For patients:
a Form 5 is not simply an increase in privileges. Your involuntary status has ended. You can choose to stay, but while you remain voluntary, you can also choose to leave.
For families and caregivers:
a Form 5 means that the hospital is no longer relying on the patient's involuntary certificate to hold your loved one there. They may still need treatment, and everyone involved may strongly recommend that they stay, but recommendation and detention are different things.
For physicians and hospital staff:
a Form 5 ends involuntary status. It is not a way of giving an involuntary patient additional freedom while preserving the ability to prevent them from leaving if they change their mind.
And if the patient has a pending Form 16 application, the Form 5 also means that their involuntary-status hearing before the CCB is cancelled.
Section 14 provides the clearest starting point: nothing in the Mental Health Act authorizes a psychiatric facility to detain or restrain an informal or voluntary patient.
A Form 5 therefore cannot mean “voluntary for privileges, involuntary for leaving.”
A patient may choose to stay. Their physician may strongly recommend that they stay. Circumstances may change and new lawful authority to detain the patient may arise.
But while the patient remains voluntary, the possibility that they may actually choose to leave is not a loophole, a technicality, or an unintended consequence.
It is what voluntary means.
If you or a loved one is receiving psychiatric care in Ontario and you have questions about a Form 5, involuntary or voluntary status, a Form 16 application, a Consent and Capacity Board hearing, or your rights under the Mental Health Act, Lukings Law can help you understand your legal status, your rights, and the options available to you. Contact Lukings Law to discuss your situation and how we may be able to assist.
This article provides general legal information about Ontario law and is not legal advice. Mental health law is highly fact-specific, and the legal rights and options available in any particular situation will depend on the circumstances.
If you or someone else is in immediate danger, call 911. Lukings Law is not a crisis-response service and cannot provide emergency medical or safety assistance.
