Consent and Capacity - Working With Others

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For Patients Working with Lawyers


Information for Families

It is important to understand that the job of the lawyers who may be representing an adult, or the institution where he or she may reside, is to represent the client, from whom they will take instructions. As a result, depending on the situation, families might feel frustration toward the lawyer for the hospital or their relative. If this is the case, the Consent and Capacity Board (CCB) encourages both formal and informal mediation. Try to communicate your concerns to the lawyers representing your relative and the hospital. 

If you do not feel comfortable dealing directly with lawyers, you may want to get a representative of your own. Parties and witnesses are allowed to have a lawyer or agent to represent them. It is up to you to decide if you should have a lawyer or agent. If you are a party to the hearing, your lawyer or agent may ask questions of all witnesses and make submissions. If you are a non-party witness, your lawyer may only be actively involved in the presentation of your evidence or in the facilitation of mediation.

For Families Working with Doctors

Your family member’s doctor has a great deal of power in the CCB process. However, it is important to remember that part of a doctor’s obligation in aiding the CCB process is to listen to all sides and carefully consider the outcome of the treatments they prescribe. Here too, as with the lawyers, mediation can be the most effective way to communicate.

You have the right to be heard and, if you feel that the doctor is not respecting this right, you should tell the panel.  Also, you may request to be made a party, if necessary. If you decide to do so, you should contact the CCB as soon as possible. The CCB will decide if making you a party is appropriate in the circumstances, taking into account CCB's Rules of Practice.

Ultimately, whether or not you agree with the doctor’s approach, try to remember that no matter the outcome of the hearing, the doctor will likely still be directing your family member's treatment. An open and cooperative relationship with the doctor is most helpful to everyone.

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For Patients Working with Lawyers

In most cases, it may be a good idea to have a lawyer to represent you. You may contact a lawyer on your own or through the Lawyer Referral Service. You may also discuss getting legal counsel with the rights advisor assigned to your case.

In some cases, the CCB can order legal representation to be arranged for you before the hearing is scheduled. If you come to the hearing without a lawyer, the CCB may order legal representation to be arranged for you. This is done so that your story can by supported by reference to the law.

Unlike other people involved with your case, your lawyer’s job is to explain the law to you and to take instructions from you. You may have only a short time to meet with your lawyer before your hearing. It is important to tell your lawyer your concerns and desires before the hearing. Anything you say to your lawyer is privileged. The term privileged means that what you say is private and cannot be shared with anyone. A lawyer is a great resource for you. You should ask the lawyer about the law and listen to his or her advice about your situation.

Remember, though, that you have the right to disagree with your lawyer. For example, if you want to testify and your lawyer disagrees, tell the lawyer this. In extreme cases, you have the right to fire your lawyer and get another lawyer.

On the other hand, the lawyers working for the other parties do not have to take instructions from you or keep your conversations private. If you are approached, be careful what you say and try to have your lawyer present when you speak to people with other parties. The lawyers and the parties can try mediation before the hearing. Mediation is often a good way to exchange concerns and talk about possible solutions.

For Patients Working With Doctors

Your doctor has a great deal of power in the CCB process. Try to explain your concerns to your doctor in a calm and considered way. Often, if patients and doctors speak in a respectful way, they can come to a compromise before the hearing. Here, too, mediation can be an effective way to encourage communication.

However, you have the right to be heard and be involved with your treatment plan. If you do not feel that the doctor is respecting this right, you should tell the panel. You may, if necessary, cross-examine your doctor. If you decide to do so, you should take note of the exact ways and times in which your doctor was disrespectful and unprofessional. Be prepared to share this information with your lawyer.

Whether or not you agree with the doctor’s approach, try to remember that no matter what happens in or after the hearing, this doctor will likely still be directing your treatment. Being civil and respectful with the doctor will help to avoid awkwardness down the road.

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