Consent and Capacity Board

The Consent and Capacity Board (CCB) is a tribunal created by the Ontario government pursuant to the Health Care Consent Act. The CCB addresses a range of capacity and health care decisions, conducting hearings under the Mental Health Act, the Health Care Consent Act, the Substitute Decisions Act, the Personal Health Information Protection Act and the Mandatory Blood Testing Act.

Typically, the CCB deals with issues of involuntary detention in psychiatric facilities, community treatment orders, capacity to consent to treatment, capacity to manage property and capacity to consent to admission to a care facility. The CCB also addresses applications from health care providers and substitute decision makers in respect of decision-making for incapable persons, as well as applications to address the appointment and removal of substitute decisions makers for incapable persons.

Patients who are held involuntary in psychiatric facilities under the Mental Health Act are by right entitled to apply for a hearing before the CCB. Likewise, individuals who have been found incapable of making treatment, financial or admission decisions under the Mental Health Act or Health Care Consent Act have the right to a hearing before the CCB.

Following an involuntary admission or a finding of incapacity, patients meet with a rights advisor from the Psychiatric Patient Advocate Office (PPAO) who explains patients’ legal rights, including the right to a hearing to them, and completes the appropriate paperwork to commence the hearing procedure.

In an application by a patient, the responding party in a CCB hearing is the treating psychiatrist or other health care professional who has made the finding on involuntary status or incapacity or treatment. Patients are entitled to representation by counsel as are the treating psychiatrists or other health care providers. Other parties, such as family members may also attend hearings and retain counsel for representation.

Physicians and family members who are substitute decision-makers may also bring applications to the CCB in respect of treatment decision-making pursuant to the Health Care Consent Act. In those cases, the patient is a responding party. All parties may be represented by counsel.

In cases where patients or incapable persons do not wish to have their own counsel at the hearing, the CCB has authority to appoint counsel as amicus curiae, that is as a “friend of the Board” to assist the CCB with legal issues that may affect the patient or incapable person.

Once an application for a hearing is made, the hearing must be held before the CCB within seven days, unless the parties agree otherwise. CCB hearings are usually held in the facility in which the patient or incapable person is treated. At other times, CCB hearings can be held at CCB offices. CCB hearings are convened by a panel of members of the CCB who are appointed by the provincial government. In most CCB hearings, the hearing panel consists of three members: a lawyer-chair, a psychiatrist and a community member. In some cases, hearings are convened by a single senior lawyer member.

Decisions of the CCB must be delivered to the parties within one day of the hearing. Parties who seek written reasons may make a request in writing for reasons within thirty days of the hearing. Any party to a CCB hearing may appeal a finding of the CCB to the Superior Court of Justice.

Consent and Capacity Board Appeals

Parties to hearings before the Consent and Capacity Board (CCB) have a right to appeal CCB decisions to the Superior Court of Justice. Parties may appeal a CCB decision on the basis of a question of fact or law or both.

Notice of an appeal of a CCB decision must be served on all the parties as well as the CCB within seven days of the CCB decision. Once notice of an appeal is received, the CCB prepares a record for all parties which includes a full transcript of the hearing.

Hearings of CCB appeals are scheduled by the Estates Division of the Superior Court of Justice, and depending on the caseload of the Court, may be scheduled several months after the original hearing.

In cases where parties do not have counsel at the CCB, or wish to act on their own, the Court may appoint counsel as amicus curiae, or “friend of the Court”. The role of amicus counsel is to assist with the presentation of evidence and to highlight relevant legal issues for the presiding judge.

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.