Consent and Capacity Issues

Many times, a person may be unable to make important life decisions for their care and assets due to illness or disability. If the person is unable to understand the information which is needed to make a decision or is unable to comprehend the results of their action, they are deemed to lack capacity.

The power to make decisions for themselves and for matters affecting their life is a fundamental right upheld by Canadian law. Capacity issues can affect a person’s ability to make decisions about managing their property, assets, health care, personal care, marriage, etc.

In Ontario, all matters of mental capacity are regulated under the Substitute Decisions Act, the Health Care Consent Act and the Mental Health Act.

Human Rights Code governs the principles related to consent and capacity including individualized assessment, inclusive design, respect for dignity, confidentiality and autonomy.

Determining Consent & Capacity

Capacity is not a trait but is subject to context and can be assessed. It is influenced by the social environment including many legal, social and economic barriers.

In Ontario, all adults are presumed to be able to take decisions for themselves, unless they are assessed otherwise, or reasonable grounds to question their capacity exist. Capacity is also situational. A person may be able to deal with a healthcare decision but unable to make decisions about a will.

Role of Consent and Capacity Board

The Ontario government created the Consent and Capacity Board as an independent body under the Health Care Consent Act. Hearings are held to decide on issues arising from the exercise of the power given to capacity assessors, substitute decision-makers and physicians. This power is granted under many laws including the Health Care Consent Act, Mental Health Act, Substitute Decisions Act and the Personal Health Information Protection Act.

The Consent and Capacity Board makes decisions on matters such as:

  • Appraisal of a person’s consent giving capacity for healthcare including admission or treatment in a long-term care home or another facility;
  • Consider and analyze appointing, amending or terminating any representative for an incapable person, where such representative will be making decisions on behalf of the incapable person
  • Review any decision where an incapable person would be admitted to a psychiatric facility, hospital or long-term care home for treatment;
  • Analyze compliance of rules for substitute decision making when a substitute decision maker is making decisions;
  • Review of a community treatment order where an individual has been involuntarily detained in a psychiatric hospital

How We Can Help

At Nanda & Associate Lawyers, our experienced Consent and Capacity Board Lawyers understand your specific circumstances and provide tailored and customized solutions for each of them. If you need advocacy for board proceedings and advice on health and administrative law matters, including representation before Consent and Capacity Board, contact us today.

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