The Consent and Capacity Board acting pursuant to the Health Care Consent Act, 1996, S.O. 1996, in conducting a hearing to determine whether a substitute decision maker is acting in the best interests of the patient, does not have an obligation to call witnesses which could have been called by the substitute decision maker represented by counsel at the hearing. Short reasons of the Board dealing with the prior capable wish of the patient will be considered sufficient by the Court on an appeal where the Court is not prevented from a meaningful review of the correctness of the Board’s decision. An oversight on the part of the Board in failing to make a decision as to incapacity of the patient where the incapacity was largely conceded by the substitute decision maker, is unlikely to succeed as a ground of appeal of the Board’s decision that the substitute decision maker was not acting in the best interests of the patient.

26. May 2009 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Failure to provide reasons – Adult in need of protection – Capacity – Best interest of incompetent adult – Substitute decision maker – Treatment plans – Compliance with legislation – Hearings – Witnesses – failure to call Grover v. Grover, [2009] O.J. ...

Lewis Markowitz (the “Appellant”), appealed the decision of the Consent and Capacity Board (the “Board”) confirming the finding of a physician that the Appellant was incapable of consenting to treatment within the meaning of the Health Care Consent Act, S.O. 1996, c. 2 (“HCCA”). Pursuant to section 80 of the HCCA, the Appellant sought an Order quashing the decision of the Board and an Order finding the Appellant capable to consent to or refuse treatment, or, alternatively, an Order remitting the matter to the Board for a new hearing on the issue of capacity, with directions.

23. December 2008 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Test Consent to treatment – Mental health – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter – Natural justice Markowitz v. Rootenberg, [2008] O.J. No. 5029, Ontario Superior Court of Justice, December 11, 2008, S.G. ...

A psychiatric patient (“SMT”) was unsuccessful in having the Court overturn a decision of the Consent and Capacity Board where the Court found that it was not unreasonable for the Board to find that SMT was incapable with respect to treatment based on the evidence before it

27. May 2008 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Mental health – Substitute decision maker – Adult in need of protection – Capacity – Compliance with legislation – Judicial review – Standard of review – Correctness – Charter of Rights and Freedoms S.M.T. v. Abouelnasr, [2008] O.J. No. 1298, Ontario Superior ...

The Court dismissed an appeal of a decision of the Consent and Capacity Board, finding the Appellant incapable of managing her property. The decision was a reasonable one and there were insufficient grounds for an apprehension of bias.

24. October 2006 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Mental health – Capacity – Substitute decision maker – Judicial review – Bias – Reasonable apprehension of bias – Standard of review – Reasonableness simpliciter L.E. v. Desai, [2006] O.J. No. 3381, Ontario Superior Court of Justice, August 21, 2006, J.M. Spence J. The ...

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. ...

An individual (“Conway”) held in mental health facilities after being found not guilty of a criminal offence by reason of insanity was successful in his appeal from the decision of the Consent and Capacity Board (the “Board”) that he was not capable of contenting to treatment with psychotropic medications

26. April 2005 0
Administrative law – Mental health – Consent to treatment – Substitute decision maker – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Test – Judicial review – Standard of review – Correctness – Reasonableness simpliciter Conway v. Jacques, [2005] O.J. No. 400, Ontario Superior Court of Justice, February 4, 2005, M.K. Fuerst J. ...

The Court dismissed an appeal from a decision of the Consent and Capacity Board which had confirmed a finding of incapacity in respect of specified psychiatric treatment of the Applicant. The Court found the Board’s decision was entirely reasonable on the facts before it

22. March 2005 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Best interest of incompetent adult – Adult in need of protection – Mental health – Consent to treatment – Substitute decision maker – Judicial review – Standard of review – Reasonableness simpliciter Thompson v. Grant, [2005] O.J. No. 36, Ontario Superior Court ...

Ms. Neto successfully appealed a decision of the Consent and Capacity Board (the “Board”) that had determined that she was not capable of consenting to the administering of several medications to treat bipolar affective disorder

20. April 2004 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Test – Right to refuse medical treatment – Mental health – Consent to treatment – Judicial review – Compliance with legislation Neto v. Klukach, [2004] O.J. No. 394, Ontario Superior Court of Justice, February 10, 2004, Day J. Ms. Neto is a ...

On appeal by two daughters of a decision of the Ontario Consent and Capacity Board directing them to consent to withholding medical treatment for their mother, the Court found that the Board had erred in law in its determination as to whether the daughters had complied with the principles for substitute decision making by withholding their consent. The Board also erred in law by ignoring the legislative purpose of the Health Care Consent Act, 1996. Finally, the Board assumed, in the absence of evidence, that the mother’s death would be prompt if there were no further recourse to intensive care.

23. March 2004 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Adult in need of protection – Withholding medical treatment – Substitute decision maker – Power of attorney – Scope of authority – Compliance with legislation – Judicial review – Evidence – Standard of review – Correctness Scardoni v. Hawryluck, [2004] O.J. No. ...

The Respondent (“Starson”) was admitted to hospital after being found not criminally responsible for making death threats, whereupon the Ontario Review Board ordered his detention for 12 months. At that time, Starson refused medical treatment proposed by his psychiatrist for his bipolar disorder. The Consent and Capacity Board of Ontario (the “Board”) held that Starson lacked the capacity to refuse treatment. The Ontario Superior Court overturned the finding of incapacity and the Court of Appeal upheld this finding. The majority of the Supreme Court of Canada dismissed the appeal, finding that the Board misapplied the statutory test for capacity and improperly allowed its own conception of Starson’s best interests to influence its finding. The Board’s finding of incapacity could not be upheld.

26. August 2003 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Adult in need of protection – Mental health – Substitute decision maker – Right to refuse medical treatment – Capacity – Test – Judicial review – Standard of review – Reasonableness Starson v. Swayze, [2003] S.C.J. No. 33, Supreme Court of Canada, June ...