Consent and Capacity - Overview

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Health Care Consent Act

The information presented in this overview aims to help people understand how the Consent and Capacity Board (CCB) deals with appeals under several acts relating to medical treatment, mental health treatment, guardianship, and substitute decision-making.

There is also an overview of the more common forms used in appeals.

More detailed information is available on the CCB website.

If your issue is complicated or difficult to explain, you may want to see a lawyer to help you with your appeal.

To obtain free legal advice, you can contact:

Legal Aid Ontario
Toronto Line: 416-979-1446
Toll-free: 1-800-668-8258

The Lawyer Referral Service
Toronto Line: 416-947-3330
Toll-free: 1-800-268-8326

Is The Consent and Capacity Board for you?

The CCB oversees issues involving decision-making ability, terms of treatment and control of property. The CCB tries to balance the rights of people in care, whether they are in an institution or in the community, with the need for public safety. It looks at the facts of a case and decides, based on evidence, whether the steps and factors laid down in law were applied correctly. Most applications to the CCB fall into two groups:

  • Those who, against their wishes, are committed to a mental health facility
  • Those who want to review their capacity to make decisions about their treatment

The rest of the applications cover a number of other situations governed by different acts. Some of the most common reasons for an application are listed below. For a complete list see the Consent and Capacity Board website.

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Health Care Consent Act

  • Covers the capacity of a person to consent to treatment, admission to a care facility or personal assistance service.
  • Covers the choosing of a representative to make decisions for an incapable person about treatment, admission to a care facility or a personal assistance service.

Mental Health Act

  • Covers a person who has been committed to a mental health facility
  • Covers the terms of a treatment plan for a person in the community
  • Covers a finding that a person is incapable of looking after their property

Substitute Decisions Act

  • Covers a statutory guardianship for property

The Consent and Capacity Board

It is important to note that most CCB hearings do not try to decide what is most fair, or even what is in the general best interest of the parties. Instead, the CCB’s job is to compare the facts and evidence with the law, and decide a very narrow question based on the law, such as:

  • Does the patient understand enough of the information needed to make a decision about his or her care?
  • Does the patient understand the things that will likely happen following the decisions he or she wants to make?
  • Is the suggested treatment the least restrictive of the useful options?
  • Does the benefit the person is expected to get from the treatment outweigh the risk of harm to him or her?
  • Did the practitioner who wrote the order follow all the steps set down in law?

The CCB has the power to change or uphold the situation under review. For example, the CCB can:

  • Release a patient or continue to enforce his or her hospitalization
  • Change a treatment order or affirm its terms
  • Overturn an earlier finding of incapacity or extend an incapable status

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