The Consent and Capacity Board ("CCB") is an independent administrative tribunal created by the Ontario government under the Health Care Consent Act ("HCCA"). The CCB conducts hearings under various pieces of provincial legislation. When a panel is convened to hear applications brought forward by patients or health-care providers, the panel is usually comprised of a psychiatrist, a member of the general public and a lawyer (who will act as the Chair and preside over the hearing). In some cases, the legislation allows for a single senior lawyer member of the CCB to sit alone to hear an application.
Tips for Preparing for CCB Hearings
In a health-care setting, the two most common statutes under which a CCB hearing may be convened are the HCCA and Mental Health Act ("MHA"). The following tips should not be considered legal advice, but rather general guidance in navigating the hearing process.
Step 1. Identify the Type of Hearing
- Identify what type of hearing it is and which legislation it is proceeding under.
- Examples of the types of hearings under the HCCA are applications to:
- review findings of incapacity (Form A)
- appoint a personal representative to make treatment decisions (Form B)
- determine whether a substitute decision maker ("SDM") is acting in the best interests of an incapable patient (Form G)
- Examples of types of hearings under the MHA are applications to:
- review whether criteria for involuntary admission are met (Form 16 or 17, the latter of which is a mandatory review required at certain intervals)
- review a finding of incapacity to manage property (Form 18)
- review whether criteria to issue a Community Treatment Order are met (Form 48)
The above is not a complete list of hearings under either the HCCA or the MHA. CCB hearings may also proceed under the Substitute Decisions Act, Personal Health Information Protection Act, and Mandatory Blood Testing Act.
Step 2. Preparing for the Hearing
- It is generally the health-care provider who bears the burden of proving that his or her finding meets the legal criteria or test in question at the hearing. Always keep this in mind when preparing for the hearing. It is imperative for the health-care provider to show how a determination was made, whether it was a finding of incapacity or that the patient met the criteria for involuntary admission.
- Practical considerations that may be addressed in advance of a hearing:
- Review and explore the relevant clinical issues with the patient and his or her SDM.
- Ensure any language or cultural barriers have been addressed.
- Ensure forms have been completed in accordance with legislation and reviewed by the Officer in Charge within the correct timelines, as required by the legislation.
- Consider who should testify and whether more than one witness is necessary.
- Assess what clinical notes and records should be relied upon at the hearing (i.e. should other health-care providers records be relied upon as additional exhibits).
- A clinical summary can be helpful as it can marshal the clinical evidence and serve as a basis for oral evidence at the hearing. Templates for clinical summaries addressing different issues may be found on the CCB’s website.
- Consider whether a pre-hearing conference would be of assistance (i.e. if multiple statutory parties will make scheduling difficult; or the hearing may run longer than two hours due to the complexity of the issues to be addressed). Requests for pre-hearing conferences may be made to the case coordinator who is arranging the scheduling of the hearing.
Step 3. Attending the Hearing
- Logistical considerations for the hearing:
- When can the hearing be scheduled? The legislation requires the CCB to schedule hearings within seven days of receipt of the application. Assume that the hearing will likely be scheduled on the seventh day, unless the parties to the hearing can agree on a brief adjournment, which should be communicated to the CCB case coordinator as soon as possible.
- How long will the hearing be? Hearings in the Greater Toronto Area are currently scheduled for no more than two hours. If additional time is not requested in advance and the hearing does not conclude within the two hours allotted, the Board may adjourn the hearing to another day.
- Where will the hearing be held? Are there security or safety considerations which need to be addressed?
- Can the parties agree in advance on the documents to be considered by the Board? If the parties cannot agree, that does not mean that one side will not be permitted to put the document before the Board. It simply means that there will likely be an objection to the document being relied on by the Board. Ultimately, it is for the Board to decide whether a document is relevant and admissible.
The parties may also agree in advance to a timetable for exchanging documents, particularly in cases where the hearing is being scheduled outside of the seven-day time limit.
- Practical considerations at the hearing
- The Board wants to receive documents at least fifteen minutes in advance of the hearing. The parties do not need consent in order to deliver documents to the Board.
- Consider how to present the evidence with particular attention to the legal test at issue so that you are able to demonstrate with the evidence that the test has been met.
- Consider in advance what you may want to say in conclusion, to summarize and support your position at the hearing.
A Note Regarding Recent Scheduling Developments at the CCB
The number of CCB applications and hearings are on the rise. There has been a 60% increase in the total number of hearings over the last five years, and a 16%increase in the last year alone. The CCB receives about 150 different applications each week.
Unless the affected patient is represented by counsel and an agreement is reached to adjourn the hearing, hearings will be scheduled within seven days of the receipt of the application, as required by the HCCA.
In an effort to manage this increasing hearing load efficiently, the Board now expects each hearing to be completed within two hours, in part to facilitate the scheduling of up to four hearings per day for a panel. That means that a CCB panel may be presiding over multiple hearings at different locations on any given day.
This situation has created some challenges. Counsel may want to consider the following to address scheduling difficulties:
- Try to reach an agreement on a date for the hearing outside the seven-day window, when all parties are available.
- Submit your availability as soon as possible to the Board at ccb@ontario.ca.
About the authors
Barbara Walker-Renshaw and Meghan Payne, Borden Ladner Gervais LLP