The Consent and Capacity Board is an independent Ontario tribunal that decides whether a person can be held in hospital against their will, whether they can make their own treatment and financial decisions, and whether they must follow a treatment plan in the community. Its hearings move quickly, and the outcomes affect a person's liberty and their right to make their own choices.

The Board draws its authority mainly from the Mental Health Act and the Health Care Consent Act. Most hearings fall into three areas: involuntary admissions, findings of incapacity, and community treatment orders.

Involuntary Admissions

A person can be held in a psychiatric facility without their consent only through a specific sequence of forms under the Mental Health Act. Each form has its own time limit, and each must be properly completed.

The Criteria for Involuntary Admission

In general terms, a person may be held involuntarily only where they are suffering from a mental disorder that is likely to result in serious bodily harm to themselves or another person, or serious physical impairment of themselves, unless they remain in hospital, and where they are not suitable for admission as a voluntary patient. A separate set of criteria applies to people who have previously received treatment for a mental disorder, are incapable of consenting to treatment, and are likely to suffer substantial mental or physical deterioration without it.

Challenging an Involuntary Admission

Each time a Form 3 or Form 4 is issued, the patient must be given written notice and is entitled to meet with a rights adviser. The patient may then apply to the Board for a review. At the hearing, the hospital must establish that the criteria for involuntary admission are met at the time of the hearing. If it cannot, the Board will rescind the certificate and the person is no longer detained.

A Form 1 cannot itself be reviewed by the Board, but a person held on a Form 1 must be told the reasons for their detention and has the right to speak to a lawyer without delay. Long-term involuntary patients are also reviewed automatically at set intervals, even if they do not apply.

Findings of Incapacity

Every adult is presumed capable of making their own decisions. A finding of incapacity removes that right and transfers the decision to someone else, so the Board will review it on application. The two most common findings concern treatment and property.

Capacity to Consent to Treatment

Under the Health Care Consent Act, a health practitioner proposing a treatment must decide whether the person is capable of consenting to it. A person is capable if they are able to understand the information relevant to the decision, and able to appreciate the reasonably foreseeable consequences of making or not making it. If the person is found incapable, a substitute decision maker, usually a family member, makes the decision instead.

The person may apply to the Board to review the finding. In most cases, the treatment cannot begin until the review and any appeal are finished, except in an emergency.

Capacity to Manage Property

When a person is admitted to a psychiatric facility, the attending physician may examine whether they are capable of managing their finances and property. If the physician finds them incapable and issues a certificate of incapacity, the Public Guardian and Trustee becomes their statutory guardian of property, unless they have a valid continuing power of attorney for property.

The person may apply to the Board to review the certificate. Unless the physician issues a notice of continuance before discharge, the certificate is cancelled when the patient leaves hospital.

Community Treatment Orders

A community treatment order (CTO) allows a person to live in the community rather than in hospital, on the condition that they follow a supervised treatment plan. A physician may issue a CTO only where the person has a history of repeated or lengthy psychiatric admissions, or a previous CTO, and the person or their substitute decision maker consents to the plan.

A CTO lasts up to six months and may be renewed. If the person does not comply with the plan, the physician can order them returned for examination, which may lead to readmission. The person may apply to the Board each time a CTO is issued or renewed, and there is an automatic review on every second renewal.

How Hearings Work

These proceedings are designed to happen quickly. Hearings are generally held within seven days of the application being received, with decisions following shortly afterwards. Panels may consist of one, three, or five members, and typically include a lawyer, a psychiatrist, and a public member.

Patients are entitled to be told of their rights, to receive assistance from a rights adviser, and to be represented by counsel at the hearing. Legal Aid Ontario provides certificates for many of these matters.

Appeals

A decision of the Board may be appealed to the Superior Court of Justice. The time limit for filing is short, so advice should be obtained promptly after a decision is released.

Why Representation Matters

What is at stake in these hearings is a person's freedom and their right to direct their own care. The clinical evidence is often presented as settled, but it can be tested. Experienced counsel will scrutinize whether the forms were properly completed, whether the statutory criteria for detention are genuinely met, whether the capacity assessment was properly conducted and properly explained to the patient, and whether a less restrictive option would serve just as well.

This article is for general informational purposes only and does not constitute legal advice. Timelines and procedures vary by case. Contact a lawyer to discuss your situation.