The Consent and Capacity Board (CCB) is an independent, quasi-judicial administrative tribunal created by the Government of Ontario under the Health Care Consent Act to conduct hearings under a number of health related laws including the Mental Health Act, Substitute Decisions Act and the Personal Health Information Protection Act.  The CCB includes lawyers, designated medical specialists and public members. The CCB becomes involved in these types of matters when there is an application to determine a person’s capacity or a question about who should make treatment decisions or what type of decisions should be made. Hearings also take place to consider involuntary status in hospital, admission to care facilities, financial capacity as well as a number of other issues.

One of the applications considered by a CCB tribunal concerns a need to review compliance with rules for substitute decision-making.  A hearing occurs when the applicant is of the opinion that the substitute decision maker has given or refused consent in a manner that violates the rules for substitute decisions found in the Health Care Consent Act (in section 21). It is in this situation that it is helpful that a patient has gone through a process of advance care planning.

A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with principles outlined in the Health Care Consent Act.  Prior capable wishes of the person, when they apply to the situation, are usually binding.  Where there are no prior capable wishes, decisions must be made in terms of a person’s “best interest” (a legal term defined in the Health Care Consent Act at section 21).  In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall consider the values, beliefs and wishes expressed by the incapable person in addition to other criteria outlined in the Act.

CCB tribunal members who have been involved in these hearings know from experience that it is very important that individuals talk to their family and friends about personal  wishes in the event of accident, serious illness or incapacity.  The more you share your wishes, beliefs and values, the easier it will be for loved ones to make critical decisions in the event of your incapacity..  These wishes can be expressed in writing, video or orally to a chosen substitute decision maker. A clear expression of your wishes helps to protect your autonomy and to promote your desire for self-direction in situations where you cannot make decisions on your own.

Marg Creal

Chair, Ontario Consent and Capacity Board

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