The Appellant successfully appealed a decision of the Consent and Capacity Board finding that he was not capable of making decisions concerning admission to a care facility within the meaning of the Health Care Consent Act, 1996, S.O. 1996, c. 2, (the “HCCA”). The test is not whether the Appellant failed to appreciate the foreseeable consequences of the decision to return home but whether or not he was unable to do so. There was no analysis or finding by the Board as to whether the Appellant had the cognitive ability to understand the relevant information as well as to appreciate the consequence of making (or not making) the decision to enter the care facility. Therefore there was no basis upon which the Board could reasonably find that the presumption of the Appellant’s capacity had been displaced and, as such, the Board’s decision ought to be set aside. The Appellant was further awarded costs in the amount of $24,914. Although the proceedings were not adversarial in the usual sense and the evaluators were acting in good faith and in what they believed were the Appellant’s best interests, the hospital and health practitioners had a great deal of power in the assessment process and the appeal was the Appellant’s only remedy to challenge the incapacity finding. Therefore, there was no reason the Appellant should not have his costs.

28. February 2006 0

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Adult in need of protection – Capacity – Substitute decision maker – Judicial review – Compliance with legislation – Standard of review – Correctness – Costs

Saunders v. Bridgeport Hospital, [2005] O.J. No. 5531, Ontario Court of Justice, December 14, 2005, N.J. Spies J.

The Appellant, a 78 year-old man, lived alone in an apartment for over 30 years until he sustained a fall on the floor in his living room where he remained for 6 to 8 days. He was finally able to call a neighbour and remained in a chair for 2 days, with his neighbour providing meals, until he agreed to attend at hospital. The Appellant, although not injured in the fall, was transferred to the Respondent Bridgepoint Hospital for rehabilitation where four health care practitioners individually and jointly made the decision he was not capable of making decision concerning admission to a care facility within the meaning of s.4(1) of the Health Care Consent Act. This finding was upheld by the Consent and Capacity Board (the “Board”). The Appellant appealed the  Board’s decision.

The interpretation of s.4(1) of the HCCA was considered by the Supreme Court of Canada in Starson v. Swayze, [2003] 1 S.C.R. 722 in the context of consent to treatment and is applicable given the definition for incapacity applies with respect to admission to a care facility. Capacity involves two criteria: (1) the person must be able to understand the information that is relevant to making a treatment decision which requires the cognitive ability to process, retain and understand the information; and (2) a person must be able to appreciate the reasonably foreseeable consequences of a decision or lack thereof. (Note: Health care consent legislation in Ontario allows an involuntary patient to refuse treatment if the patient is found capable of making a treatment decision. Health care consent legislation in other provinces may differ.)

The Board correctly stated in its reasons that the Appellant is presumed capable and the onus is on the evaluators, on a balance of probabilities, to establish otherwise. The Court also noted that the interpretation of a legal standard for capacity under s.4(1) of the HCCA is a question of law and the correctness standard applied.

The Court found that the Board erred in not properly considering the question of procedural fairness and whether or not the Appellant had been adequately informed about the capacity assessment process at all times.

As well, the Board erred by failing to inquire as to the Appellant’s reasons for failing to appreciate the risk of falling if he returned home and then drawing the inference that he was unable to appreciate the risk of going home from that fact. Similarly, the Board failed to apply the statutory test properly by failing to inquire into those reasons for the Appellant’s failure to appreciate the consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s condition prevents him from having the ability to appreciate the foreseeable consequences of the decision. For these reasons, the Board’s decision was set aside and substituted with an Order that the Appellant is capable with respect to consenting to admission to a health care facility within s.4(1) of the HCCA.

Finally, the Court awarded costs in the amount of $24,914 to the Appellant. The HCCA leaves the assessment process for capacity to make admission decisions entirely up to the health care practitioners and the only remedy the patient has to challenge an incapacity finding is to seek a review of the decision. Even recognizing that this was not an adversarial process in the usual sense and that hospitals have limited resources, the Court saw no reason why the Appellant should not have his costs.

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