Better Know a Court: The Consent and Capacity Board

Amber Neumann (3L) and Matt Howe (3L)

Every day across Ontario, a little-known tribunal gathers in nondescript hospital meeting rooms to adjudicate high stakes personal issues involving physical and mental health care, involuntary psychiatric detention, and end-of-life disputes.

The Consent and Capacity Board (CCB, or “the Board”) hears disputes arising from the exercise of powers granted to physicians, capacity assessors, and substitute decision-makers under the Health Care Consent Act (HCCA), the Mental Health Act, the Substitute Decisions Act, the Personal Health Information Protection Act, and the Mandatory Blood Testing Act.

The most frequently adjudicated issues before the CCB are physicians’ decisions to involuntarily detain individuals in psychiatric hospitals under the Mental Health Act, and decisions that individuals are incapable of consenting to psychiatric treatment under the Health Care Consent Act. Other common areas for consideration include assessments of a person’s capacity to manage property, make decisions related to their personal care, or consent to health treatment.

The CCB in Practice

CCB hearings must begin within seven days of an application being received by the Board. (This means, in effect, that a person may be involuntarily detained for up to seven days with no recourse to challenge the detention.) The parties in attendance will be, at minimum, the panel members, an attending physician or Capacity Assessor, the person whose capacity is in question, and his or her counsel. The CCB panel will consist of a lawyer, a psychiatrist, and a lay person from the community. Hearings operate in accordance with the Statutory Powers and Procedures Act and the Board’s own Rules of Practice. Like a lot of administrative tribunals, the hearings tend to be informal.

Hearings focus very specifically on the legal test for capacity, as it applies to the issue at hand. Though it varies somewhat depending on the relevant legislation, the standard is typically whether the person can “understand and appreciate” their situation. The onus is on the party raising the issue to establish that the person whose capacity is in question is unable to understand the pertinent information related to the decision, or is unable to appreciate the consequences of either making a decision or failing to do so. In presenting evidence, it is important to know the legal test and the language of the legislation, and to use both carefully and specifically.

Failure on the part of physicians or Capacity Assessors to identify the proper test and to substantiate it with evidence can lead to unfortunate outcomes. Consider the following example. Betty is an elderly woman living alone and suffering from worsening dementia. She has not paid her rent for several months, and she does not understand that her income is no longer enough to cover her expenses, let alone her rental arrears. When confronted by her landlord, she maintains against all evidence that there is no problem. Betty is assessed by a Capacity Assessor (a designation given to health care professionals who have undergone some training in capacity issues) to be incapable of managing her property, and is appointed a substitute-decision maker (SDM) who can get her finances in order and help her move into an affordable apartment.

Unfortunately, the Capacity Assessor, in this case an overworked social worker with no legal training, did a sloppy job in her assessment of Betty. Instead of applying the facts to the proper legal test (and starting from a presumption of capacity), she simply stated her conclusion that Betty was incapable and needed help. This might not be objectionable from a social work perspective, but it means that the Board will likely remove Betty’s SDM because of a lack of evidence regarding her legal incapacity. Without her SDM, Betty remains in the apartment she cannot afford until she is forcibly removed by the Sheriff and rendered homeless.

(The above situation is loosely based on our experiences as summer students with the Public Guardian and Trustee, a government agency which serves as an SDM ‘of last resort’ for individuals like Betty, and is not altogether uncommon.)

Clearly, it can be just as important that a person in need of support be accurately assessed as lacking in decision-making capacity as it is to ensure that a person’s liberty is not compromised based on a weak assessment of their capacity.

Recent Appeals Point to an Expanding Role for the CCB

Two recent cases heard by the CCB before making their way up the chain for review by courts illustrate the Board’s evolving role.

In Cuthbertson v. Rasouli [2013 SCC 53], the Supreme Court ruled that a decision to remove life support falls under the jurisdiction of the CCB. Mr. Rasouli’s attending physicians sought to remove him from life support. His wife, as his substitute decision-maker, refused. It was the physician’s position that the continuation of life support did not fall within the statutory definition of treatment.  Mr. Rasouli’s wife argued that withdrawal of life support under the circumstances constituted treatment under the HCCA, thereby falling within her purview as substitute decision-maker, and that any disagreement the physicians had with her decision should be resolved by the CCB. The Court agreed, further expanding the role for the CCB in a growing and contentious area of health law.

P.S. v. Ontario [2014 ONCA 900] dealt with the Board’s role and powers regarding long-term involuntary civil psychiatric detention. Prior to the P.S. decision, the Board was limited in its ability to influence the conditions of detention. The Ontario Court of Appeal found that the MHA provisions which deal with indefinite detention resulted in a breach of P.S.’s Section 7 Charter rights, because the legislation failed to give the CCB the powers required to “ensure that the conditions of a person’s long-term detention are tailored to reflect the person’s actual level of risk, moving towards their ultimate integration.” As such, the provisions were rendered of no force and effect. The anticipated outcome of the decision is that the Board will have greater input when it comes to patients’ rights to meaningful avenues for recovery, in order to work towards release from detention and reintegration into the community.

Where to Learn More

With growing awareness of mental health advocacy, and a rapidly aging population, the CCB is an important part of Ontario’s health law infrastructure. You can learn more about it by visiting its website (www.ccboard.on.ca), which has a considerable amount of information the Board’s mandate, practices, and decisions. You can also find reported decisions on CanLII.

CCB hearings are open to the public. If you would like to attend, the best way to arrange it is to contact the Board by phone at (416) 327-4142 or email (ccb@ontario.ca) to explain your interest and request the times and locations of upcoming hearings.