Consent and Capacity Board Ontario: what it is and why it matters

Not every plaintiff who walks into a personal injury lawyer’s office walk out with the same legal standing they came in with. For some clients, a serious injury does not just change their life. It can also put their legal capacity in question.

The Consent and Capacity Board of Ontario is the province’s tribunal that steps in when that happens, and knowing what it does can change how lawyers will handle a personal injury case on their file.

What is the Consent and Capacity Board of Ontario?

The Consent and Capacity Board (CCB) is an independent administrative tribunal established under Ontario’s Health Care Consent Act (HCCA). It operates at arm’s length from the Ministry of Health, and serves what its own mandate describes as the intersection of health and justice.

The CCB’s job is to resolve specific disputes about consent, capacity, and civil detention. Particularly, it is involved in situations where a person’s liberty, autonomy, or health-care rights are immediately at stake.

What the Consent and Capacity Board decides on

Apart from the HCCA, the CCB holds hearings under the following Ontario statutes:

• Mental Health Act
• Substitute Decisions Act
• Personal Health Information Protection Act
• Child, Youth and Family Services Act
• Mandatory Blood Testing Act

The most common applications involve:

• reviews of a patient’s involuntary status in a psychiatric facility
• findings of incapacity to consent to treatment
• reviews of community treatment orders

How fast the Consent and Capacity Board moves

The CCB schedules a hearing within seven days of receiving an application. A decision comes within one day of the hearing’s close, often the same night. Written reasons are available within four business days of a formal request.

Learn about the provincial laws and deadlines that lawyers and litigants should not miss when it comes to personal injuries proceedings. Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to find out more.

What does a Consent and Capacity Board finding mean in a personal injury case?

The finding of the CCB of incapacity is legally binding. However, it is not a blanket declaration. Under s. 4 of the Health Care Consent Act, capacity is assessed for a specific decision at the time that decision needs to be made. As such, the finding applies to that decision only.

The legal test for capacity

The two-part test for capacity was confirmed in Starson v. Swayze, 2003 SCC 32. It held that the CCB must determine whether the person:

• can understand the information relevant to the decision; and
• can appreciate the reasonably foreseeable consequences of making that decision, or not making it

Both must be met for a person to be found capable. The Court in Starson also confirmed that refusing a recommended treatment does not, by itself, mean someone lacks capacity. The test is about how a person reasons through a decision, not whether they agree with the option being proposed.

The presumption of capacity

HCCA’s s. 4(2) presumes every person is capable, unless there is reason to believe otherwise. The burden of establishing incapacity falls on whoever is asserting it.

What the presumption means for a personal injury file

A plaintiff found incapable of consenting to a particular treatment is not automatically found incapable of instructing their lawyer or managing their litigation. This means that the finding is limited to its stated scope.

There is also a procedural consequence worth knowing. Under s. 18(3) of the HCCA, if a CCB decision is appealed to the Ontario Superior Court of Justice, the proposed treatment cannot be administered while that appeal is pending.

If the appeal takes time, the resulting treatment gap may factor into a damages calculation. Notably, appeals of treatment capacity decisions must be started within seven days of receiving the Board’s decision.

Check out Canadian Lawyer’s Special Report on Canada’s Best Personal Injury Law Firms for a list of the country’s leading personal injury boutiques and firms.

What happens when a client loses their capacity to instruct their counsel?

The duty of a personal injury lawyer runs to the client. When a client can no longer give meaningful instructions because of a finding of incapacity, the lawyer cannot simply carry on as before.

The immediate impact on a personal injury case

The practical effects are immediate. A client who has been found incapable cannot:

• give valid settlement instructions
• sign a binding retainer agreement, or have a prior one ratified without careful review
• make enforceable decisions about the conduct of the litigation

The Law Society of Ontario (LSO) provides a guide specifically for lawyers navigating client capacity concerns, including steps for protecting a client’s interests while a formal decision-making arrangement is put in place.

Appointing a litigation guardian

When a plaintiff cannot manage their own proceedings, a litigation guardian takes on that function. Under Ontario’s tribunal rules, a litigation guardian must:

• be at least 18 years old
• understand the nature of the proceedings
• act in the interests of the person they represent
• be available to provide instructions to the lawyer

The person being represented should still be consulted wherever they are able to participate. The litigation guardian acts for them, not in place of them.

A person who holds substitute decision-making authority under the HCCA or the Substitute Decisions Act, including a representative appointed by the CCB, may also be eligible to act as litigation guardian.

However, that authority must be separately confirmed. In other words, substitute decision-making authority in one area does not automatically extend to litigation.

When the role of a litigation guardian ends

Capacity is not fixed. If a client recovers the ability to conduct their own proceedings, the litigation guardian’s role ends. The Tribunals Ontario Practice Direction on Litigation Guardians sets out additional grounds for removal during a proceeding:

• a conflict of interest with the person being represented,
• the appointment of a more appropriate person, or
• a conflict with another person’s existing decision-making authority.

How does a substitute decision-maker’s choices affect a case during incapacity?

When a plaintiff cannot make their own health-care decisions, a substitute decision-maker (SDM) takes on that responsibility. As the SDM does not decide based on their own preferences, they are bound by a legal framework set out in the HCCA.

Who acts as a substitute decision-maker

The HCCA sets out a ranked list of who may serve, in order:

• Guardian of the Person
• Attorney for personal care
• A representative appointed by the Consent and Capacity Board
• Spouse or partner
• Child over the age of 16, or parent
• Parent with right of access only
• Brother or sister
• Any other relative
• Office of the Public Guardian and Trustee

The two standards for substitute decision-makers

The SDM must follow prior capable wishes first. If the SDM is aware of a wish the plaintiff expressed while capable, and after the age of 16, they must follow it.

However, if no applicable prior wish exists, or it cannot be followed, the SDM must act in the plaintiff’s best interests. The SDM must weigh the following:

• whether the treatment is likely to improve the person’s condition,
• whether the benefits outweigh the risks, and
• if a less intrusive option would be equally effective

The causation problem

SDM decisions made during a period of incapacity can surface as a contested issue in a personal injury case. A defendant may argue that a complication or delay in recovery was caused not by negligence, but by a treatment choice the SDM made. Plaintiff counsel will need to show that the SDM acted within the correct legal standard.

The CCB publishes what are known as Reasons for Decisions. These are publicly accessible records that document the CCB’s findings and reasoning in a given case, and they can be used in civil proceedings to establish the state of a plaintiff’s capacity at a specific point in time.

Consent and Capacity Board of Ontario: capacity to prepare

Ontario’s Consent and Capacity Board may look like health law territory, but for personal injury lawyers, it runs through some of the most consequential moments in a file. The clients who walk into a law office will not all walk out with the same legal footing they arrived with. Knowing the CCB’s role before that moment arrives puts lawyers well ahead of the file.

Bookmark Canadian Lawyer’s Personal Injury page for more news, articles, and updates for Canadian legal professionals, such as topics related to Ontario’s Consent and Capacity Board.