Preparing For Consent And Capacity Board Hearings

The Consent and Capacity Board ("CCB") is an independent administrative tribunal created by the Ontario government under the Health Care Consent Act ("HCCA"). The CCB conducts hearings under various pieces of provincial legislation. When a panel is convened to hear applications brought forward by patients or health-care providers, the panel is usually comprised of a psychiatrist, a member of the general public and a lawyer (who will act as the Chair and preside over the hearing). In some cases, the legislation allows for a single senior lawyer member of the CCB to sit alone to hear an application.

Tips for Preparing for CCB Hearings

In a health-care setting, the two most common acts under which a CCB hearing may be called are the HCCA and Mental Health Act ("MHA"). Many health-care facilities expect health-care providers to attend CCB hearings without legal representation. The following tips should not be considered legal advice, but rather general guidance for health-care practitioners and physicians in navigating the hearing process.

Step 1. Identify the Type of Hearing

Identify what type of hearing it is and which legislation it is proceeding under. Examples of the types of hearings under the HCCA are applications to: review findings of incapacity (Form A) appoint a personal representative to make treatment decisions (Form B) determine whether a substitute decision maker ("SDM") is acting in the best interests of an incapable patient (Form G) Examples of types of hearings under the MHA are applications to: review whether criteria for involuntary admission are met (Form 16 or 17, the latter of which is a mandatory review required at certain intervals) review a finding of incapacity to manage property (Form 18) review whether criteria to issue a Community Treatment Order are met (Form 48) obtain certain orders available where a patient is admitted involuntarily under a certificate of continuation (Form 51) obtain an order for an involuntary patient's transfer to another psychiatric facility (Form 52) The above is not a complete list of hearings under either the HCCA or the MHA. Hearings may also proceed under the Substitute Decisions Act, Personal Health Information Protection Act, and Mandatory Blood Testing Act.

Step 2. Preparing for the Hearing

Consider whether the hearing can be handled by the physician, health-care provider or capacity assessor alone, or if the assistance of legal counsel is needed. Generally, many hearings may be...