Consent and Capacity - The Hearing

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Preparing for a Consent and Capacity Hearing: for Families
Lawyers
Witnesses
The Hearing Process
The Decision
 


Preparing for a Consent and Capacity Hearing: For Patients

There may not be a lot of time between when you send in your application form and when you go to your hearing. This means you will need to prepare quickly. The following information will help you prepare for your hearing, and explain what to expect during the hearing.

There are different types of application forms, and each one is based on different legal guidelines. To learn more about the specific legal tests for each type of hearing, see the legislation and case law sections of this resource (found in the Key Forms section). In general, all applicants are seen by the panel as having capacity. This is true even if the panel has earlier found an applicant to be incapable. It is up to the other side to prove otherwise. The panel will listen to all the evidence and decide, using something called the balance of probabilities, whether a patient can make health care decisions, manage property, etc.

In most cases, the Board will have to review a decision of incapacity made by your doctor assessor. This may mean that you, or your lawyer, will have to question your doctor.

Each type of hearing tries to answer a specific legal question. Often, the panel will decide whether you can understand the relevant information and grasp the impact of decisions you want to make. To make your case you can call witnesses and/or show official documents.

Remember: there is a lot happening at a CCB hearing – both legally and emotionally. It’s important to prepare!

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Preparing for a Consent and Capacity Hearing: For Families

As a family member, your involvement in the hearing will vary depending on whether or not you are a party to the proceeding. In some types of CCB cases, family members are automatically parties. If not, you will have to request party status in accordance with the CCB’s Rules of Procedure.

If you become a party, you will then have the right to submit evidence and call witnesses before the panel. You are not required to have a lawyer, but it might be a good idea.

If you are not a party, there are still other ways to influence the process and make your concerns known, like:

  • Asking the counsel for the doctor or care facility's lawyer if you can testify
  • Talking with the doctor to ensure that he or she has the complete context for the patient’s circumstances and knows all the relevant details.
  • Finding any documents, such as letters or reports, that may shed light on the patient’s condition and sharing these with the lawyers. Keep in mind that any document you share with the lawyer for one party will also have to go to all the others.
  • Asking the panel to permit you to make a statement. The presiding member can consider your remarks as a part of their decision-making process.
  • Talking with the patient; try to express your concerns and listen to the patient's point of view.

Documents

You can give any document that relates to the specific issues you have raised. Examples might be email, doctor’s charts, nurse’s notes or interview records. Remember: general documents that are not about the patient’s issues or the alleged incapacity (e.g., found on the Internet or in a newspaper) are not usually allowed as evidence. The Board has the power to accept hearsay evidence (e.g. nurse’s notes or letters from family members).

Make sure to gather and prepare any medical documents that are important in proving your capacity and/or ability to consent. Letters from your family doctor, psychologist, or social worker should be considered. You should ask your health-care professionals for these letters before you apply to the CCB, or right after you submit your application form.

Documents should be gathered ahead of time and then presented at the CCB hearing. You should present the CCB with any relevant documentation that will help prove capacity. Also, you should gather any documents or notes that show flaws in the doctor’s process. Such documents might include proof of shortcuts in carrying out an assessment or evidence that the needed steps were not taken. Three copies of any type of written evidence should be made, and brought to the hearing: 1 for the presiding member, 1 for the other side to the case, and 1 for you.

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Lawyers

Although you do not need a lawyer to present your case to the CCB, it may be a good idea to speak to one before your CCB hearing. You can obtain free legal advice by obtaining a Legal Aid certificate. You can contact the Lawyer Referral Service at 1-800-268-8326, or obtain a lawyer through Legal Aid Ontario at 1-800-668-8258.

In some cases, the CCB may order that legal representation be provided to you before your hearing is scheduled. In this case, if you come to the hearing without a lawyer, the Board may arrange for you to meet with a lawyer before proceeding with the hearing.

If you are currently living in a psychiatric facility, you should speak with a rights advisor about your legal rights in the hearing process.

Getting to Know the Law

It is important for your story to be supported by the rules and the law and the other decisions made by the CCB.  Links to the legislation, and some key decisions are contained in the Key Forms section of this web page.

  • Read these sections and think about ways in which the other side’s request/order goes against the law and/or the other CCB decisions.
  • Write down the names of these cases and sections of the law.

NOTE: Places where this finding of incapacity doesn’t line up with the law should be central to your case and to the questions you ask your witnesses.

Laying Out the Issues

Think about any facts or arguments that might help prove something did or did not happen.

Think about the doctor’s side of the story: In what ways do you disagree? What did the doctor leave out? How do you respond?

Think about the purpose for each type of hearing and make a checklist. Depending on the type of hearing, these questions might include:

  • Has your condition been explained?
  • Were the reasons for the guardianship explained to you?
  • If you have been admitted to a facility, and you think there is a better place for you to get your treatment, say why, and make your suggestion for a better place.
  • What you find wrong or unfair about the facility into which you have been admitted?
  • What other, more suitable, plan for treatment do you have?

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Witnesses

  • If you are the only person with first-hand information about your side of the story, you may NOT need other witnesses. Also, it's fine if you and your lawyer decide that you should not testify.
  • If you do testify, what you say will be important. Stay calm and answer questions honestly and directly. You will likely not face cross-examination from the doctor or the doctor's lawyer. The CCB, however, may ask you some questions.
  • If someone else has experience or information that supports your side, then you may want to bring that person as a witness.
  • Remember: people with good reputations and information about your specific case make the best witnesses.
  • Write down questions you want to ask your witness(es). These questions should help the witness to talk about what you think is important for making your case.
  • Meet with the witness(es), tell them why you have asked them to speak for you, and practise asking them your list of questions.

Each party, as well as the CCB panel members, will take turns asking questions of each witness. Your doctor and/or substitute decision-maker will try to explain why the decision that was made is right and fair.

Watch for inconsistent or outdated assessments. You and your lawyer may also cross-examine your doctor and any other witnesses. When cross-examining the doctor, consider:

  • What is the doctor's justification for the decision they have made about you?
  • What notes does the doctor talk about?
  • Is the doctor confused about any details?
  • Is the doctor rude or disdainful?

To cross-examine the doctor, you can ask tough questions and questions that challenge what he or she is saying. Focus on any hearsay evidence or contradictory statements. But remember, you cannot "put words into a witnesse's mouth" or be rude at any time.

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The Hearing Process

There are 3 panel members at a CCB hearing; a psychiatrist, a community member and a lawyer (the presiding member). Both the applicant and the other side can bring people with them for emotional or moral support. You can bring a family member or a trusted friend to support you at your hearing.

The presiding member starts the hearing by introducing all the parties and explains how the hearing will happen. The presiding member also explains the sequence in which each party gets to speak. These rules can be found in the CCB practice directions.

If you are making your case without a representative, begin by telling the panel who you are, why you are there and what decision you would like the panel to make.

Each party, as well as the CCB panel members, takes turns asking questions of each witness. Your doctor will give information to help the panel decide the questions about your consent and/or capacity.

At the end of the hearing each party is invited to summarize and the presiding member will then end the hearing. Each side is asked to explain, based on the information that came out at the hearing, and on the law, why a decision should be made in their favour.

  • Be prepared in advance with an outline of what you want to say.
  • This is not the time to testify all over again.
  • Instead, go over the best evidence that supports your side of the story and review the reasons why the other side’s case is weak.
  • Focus on the places where the other side’s order or request is not in line with the law.
  • Tell the CCB what you would like them to remember as they leave to make their decision.

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The Decision

After the hearing ends, the presiding member will look at all of the evidence that both parties presented at the hearing. The presiding member will issue a decision in writing one day after the hearing. Remember, the presiding member also has to follow the law in making his or her decision.

The presiding member will look at all of the facts and the evidence presented, and will make a decision based on the very specific facts and evidence in each case. The decision will go in favour of the side that proved their case on a balance of probabilities.

If you are unsuccessful, you may need to continue to work with the doctor and/or the person who gave the order.

If you are not happy with the CCB’s decision, you can appeal the decision to the Superior Court of Justice. It is a good idea to talk to a lawyer before taking this step. 

Ombudsman Ontario

The Ombudsman does not have the power to overturn decisions or change tribunal decisions, but if you believe an administrative tribunal treated you unfairly you can make a formal complaint with the Ombudsman.  If the Ombudsman agrees, he can make recommendations to the tribunal to address the problem, and he can also make recommendations about government legislation, policies or programs.  For more information on the powers of the Ombudsman over tribunals, go to: Ombudsman Ontario.

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