Consent and Capacity Consent and Capacity Boards: Boards: Legal and Ethical Issues Legal and Ethical Issues Judith Jacob, LL.B. Judith Jacob, LL.B. November 27, 2013 November 27, 2013 Encounters in Bioethics Encounters in Bioethics
Why do we have the Consent Why do we have the Consent and Capacity Board (CCB)? and Capacity Board (CCB)? What is the CCB? What is the CCB?
The CCB is a tribunal. The CCB is a tribunal. According to the Statutory Powers and According to the Statutory Powers and Procedure Act s1 (i), a “ “Tribunal Tribunal” ” means means Procedure Act s1 (i), a one or more persons, whether or not one or more persons, whether or not incorporated and however described, upon incorporated and however described, upon which a statutory power of decision is which a statutory power of decision is conferred by or under a statute” ”. . conferred by or under a statute
The CCB is set up and governed by Section The CCB is set up and governed by Section V of the Health Care Consent Act (HCCA) V of the Health Care Consent Act (HCCA) to make decisions under the: to make decisions under the: Health Care Consent Act Health Care Consent Act Mental Health Act Mental Health Act Substitute Decisions Act Substitute Decisions Act Personal Health Information Protection Personal Health Information Protection Act* Act* Mandatory Blood Testing Act* Mandatory Blood Testing Act* * Not discussed in this presentation * Not discussed in this presentation
The only powers of the CCB are the powers The only powers of the CCB are the powers given by these statutes. given by these statutes.
The ethical and legal duty of the CCB is to The ethical and legal duty of the CCB is to apply this legislation in accordance with apply this legislation in accordance with the common law and relevant court the common law and relevant court decisions, and in accordance with decisions, and in accordance with procedural fairness and respect. procedural fairness and respect.
Why a tribunal – – the CCB the CCB – – and and Why a tribunal not a court? not a court? Timely hearings and decisions Timely hearings and decisions Flexibility Flexibility Members Members – – skills and training skills and training
Who is the CCB? Who is the CCB? 130 members province wide 130 members province wide One third lawyers One third lawyers One third psychiatrists One third psychiatrists One third public members One third public members and and Staff of 14 including 7 schedulers Staff of 14 including 7 schedulers
Members: Members: Appointed by Order in Council for fixed Appointed by Order in Council for fixed term term All are part time except for the Chair All are part time except for the Chair
Members sit in panels of 3, 5 or 1 in Members sit in panels of 3, 5 or 1 in hearings. hearings. Most panels have: Psychiatrist Most panels have: Psychiatrist Public member Public member & Lawyer & Lawyer
Staff are Ontario Public servants and are Staff are Ontario Public servants and are responsible for scheduling and responsible for scheduling and administration of the CCB. administration of the CCB.
Who could receive help from Who could receive help from the CCB? the CCB?
#1 #1 Involuntary patients in psychiatric Involuntary patients in psychiatric facilities. facilities. 71% of CCB applications 71% of CCB applications (2011/2013 numbers) (2011/2013 numbers)
#2 #2 People who are found incapable of People who are found incapable of consenting to a treatment. consenting to a treatment. 27% of CCB applications 27% of CCB applications (2011/2013 numbers) (2011/2013 numbers)
#3 #3 People who are found incapable of People who are found incapable of managing their property. managing their property.
#4 #4 People who are found incapable of People who are found incapable of consenting to admission to a care facility. consenting to admission to a care facility.
#5 #5 A person who wants to appoint a A person who wants to appoint a representative or who wants to be representative or who wants to be appointed as a representative. appointed as a representative.
#6 #6 A health practitioner or person responsible A health practitioner or person responsible for authorizing admissions to a care facility for authorizing admissions to a care facility who believes that a substitute decision- - who believes that a substitute decision maker (SDM) did not follow the rules for maker (SDM) did not follow the rules for substitute decision- -making set out in the making set out in the substitute decision Health Care Consent Act (HCCA). Health Care Consent Act (HCCA).
#7 #7 A person (SDM, health practitioner or A person (SDM, health practitioner or person responsible for authorizing person responsible for authorizing admissions to a care facility) may apply to admissions to a care facility) may apply to the Board for directions regarding the the Board for directions regarding the prior capable wish of an incapable person prior capable wish of an incapable person or may apply to depart from the prior or may apply to depart from the prior capable wish. capable wish. NOTE: NARROW GROUNDS NOTE: NARROW GROUNDS
#8 #8 A person who is subject to a Community A person who is subject to a Community Treatment Order may apply to the Board. Treatment Order may apply to the Board.
#9 #9 A person who is found incapable with A person who is found incapable with respect to a personal assistance service. respect to a personal assistance service.
A typical hearing A typical hearing Involuntary Status: Involuntary Status: Three member panel Three member panel – – Lawyer Lawyer Psychiatrist Psychiatrist Public member Public member Patient and Patient Patient and Patient’ ’s Counsel s Counsel Attending Physician, perhaps with counsel Attending Physician, perhaps with counsel or agent or agent Court Reporter Court Reporter
Procedural Fairness Procedural Fairness Rules of Natural Justice Rules of Natural Justice Statutory Powers Procedure Act Statutory Powers Procedure Act Statute under which Application brought Statute under which Application brought CCB Rules CCB Rules
Respect Respect
How does the Board make How does the Board make decisions and what legal and decisions and what legal and ethical principles are applied? ethical principles are applied?
Panels make decisions by carefully Panels make decisions by carefully considering each criteria for the decision considering each criteria for the decision set out in the legislation applicable to the set out in the legislation applicable to the hearing. hearing.
Each member of the panel is equal. Each member of the panel is equal. If there is a dissent, it is noted on the If there is a dissent, it is noted on the Decision. Decision.
Written Reasons Written Reasons
Could a health professional Could a health professional challenge the decision of the challenge the decision of the Board? Board? YES YES
Procedure set out in s80 of HCCA Procedure set out in s80 of HCCA Note: HCCA s19 Note: HCCA s19 – – Order authorizing Order authorizing treatment pending Appeal treatment pending Appeal
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