Consent and Capacity Consent and Capacity Boards: Boards: Legal - - PowerPoint PPT Presentation

Judith Jacob, LL.B. Judith Jacob, LL.B.

November 27, 2013 November 27, 2013 Encounters in Bioethics Encounters in Bioethics

Consent and Capacity Consent and Capacity Boards: Boards: Legal and Ethical Issues Legal and Ethical Issues

Why do we have the Consent Why do we have the Consent and Capacity Board (CCB)? and Capacity Board (CCB)? What is the CCB? What is the CCB?

The CCB is a tribunal. The CCB is a tribunal.

According to the Statutory Powers and According to the Statutory Powers and Procedure Act s1 (i), a Procedure Act s1 (i), a “ “Tribunal Tribunal” ” means means

• ne or more persons, whether or not
• ne or more persons, whether or not

incorporated and however described, upon incorporated and however described, upon which a statutory power of decision is which a statutory power of decision is conferred by or under a statute conferred by or under a statute” ”. .

The CCB is set up and governed by Section The CCB is set up and governed by Section V of the Health Care Consent Act (HCCA) V of the Health Care Consent Act (HCCA) to make decisions under the: to make decisions under the:

  Health Care Consent Act

Health Care Consent Act

  Mental Health Act

Mental Health Act

  Substitute Decisions Act

Substitute Decisions Act

  Personal Health Information Protection

Personal Health Information Protection Act* Act*

  Mandatory Blood Testing Act*

Mandatory Blood Testing Act*

* Not discussed in this presentation * Not discussed in this presentation

The only powers of the CCB are the powers The only powers of the CCB are the powers given by these statutes. given by these statutes.

The ethical and legal duty of the CCB is to The ethical and legal duty of the CCB is to apply this legislation in accordance with apply this legislation in accordance with the common law and relevant court the common law and relevant court decisions, and in accordance with decisions, and in accordance with procedural fairness and respect. procedural fairness and respect.

Why a tribunal Why a tribunal – – the CCB the CCB – – and and not a court? not a court?

  Timely hearings and decisions

Timely hearings and decisions

  Flexibility

Flexibility

  Members

Members – – skills and training skills and training

Who is the CCB? Who is the CCB?

  130 members province wide

130 members province wide

  One third lawyers

One third lawyers

  One third psychiatrists

One third psychiatrists

  One third public members

One third public members and and

  Staff of 14 including 7 schedulers

Staff of 14 including 7 schedulers

Members: Members:

  Appointed by Order in Council for fixed

Appointed by Order in Council for fixed term term

  All are part time except for the Chair

All are part time except for the Chair

Members sit in panels of 3, 5 or 1 in Members sit in panels of 3, 5 or 1 in hearings. hearings. Most panels have: Psychiatrist Most panels have: Psychiatrist Public member Public member & Lawyer & Lawyer

Staff are Ontario Public servants and are Staff are Ontario Public servants and are responsible for scheduling and responsible for scheduling and administration of the CCB. administration of the CCB.

Who could receive help from Who could receive help from the CCB? the CCB?

#1 #1

  Involuntary patients in psychiatric

Involuntary patients in psychiatric facilities. facilities.

  71% of CCB applications

71% of CCB applications (2011/2013 numbers) (2011/2013 numbers)

#2 #2

  People who are found incapable of

People who are found incapable of consenting to a treatment. consenting to a treatment.

  27% of CCB applications

27% of CCB applications (2011/2013 numbers) (2011/2013 numbers)

#3 #3

  People who are found incapable of

People who are found incapable of managing their property. managing their property.

#4 #4

  People who are found incapable of

People who are found incapable of consenting to admission to a care facility. consenting to admission to a care facility.

#5 #5

  A person who wants to appoint a

A person who wants to appoint a representative or who wants to be representative or who wants to be appointed as a representative. appointed as a representative.

#6 #6

  A health practitioner or person responsible

A health practitioner or person responsible for authorizing admissions to a care facility for authorizing admissions to a care facility who believes that a substitute decision who believes that a substitute decision-

• maker (SDM) did not follow the rules for

maker (SDM) did not follow the rules for substitute decision substitute decision-

• making set out in the

making set out in the Health Care Consent Act (HCCA). Health Care Consent Act (HCCA).

#7 #7

  A person (SDM, health practitioner or

A person (SDM, health practitioner or person responsible for authorizing person responsible for authorizing admissions to a care facility) may apply to admissions to a care facility) may apply to the Board for directions regarding the the Board for directions regarding the prior capable wish of an incapable person prior capable wish of an incapable person

• r may apply to depart from the prior
• r may apply to depart from the prior

capable wish. capable wish.

  NOTE: NARROW GROUNDS

NOTE: NARROW GROUNDS

#8 #8

  A person who is subject to a Community

A person who is subject to a Community Treatment Order may apply to the Board. Treatment Order may apply to the Board.

#9 #9

  A person who is found incapable with

A person who is found incapable with respect to a personal assistance service. respect to a personal assistance service.

A typical hearing A typical hearing

Involuntary Status: Involuntary Status:

  Three member panel

Three member panel – – Lawyer Lawyer Psychiatrist Psychiatrist Public member Public member

  Patient and Patient

Patient and Patient’ ’s Counsel s Counsel

  Attending Physician, perhaps with counsel

Attending Physician, perhaps with counsel

• r agent
• r agent

  Court Reporter

Court Reporter

Procedural Fairness Procedural Fairness

  Rules of Natural Justice

Rules of Natural Justice

  Statutory Powers Procedure Act

Statutory Powers Procedure Act

  Statute under which Application brought

Statute under which Application brought

  CCB Rules

CCB Rules

Respect Respect

How does the Board make How does the Board make decisions and what legal and decisions and what legal and ethical principles are applied? ethical principles are applied?

Panels make decisions by carefully Panels make decisions by carefully considering each criteria for the decision considering each criteria for the decision set out in the legislation applicable to the set out in the legislation applicable to the hearing. hearing.

  Each member of the panel is equal.

Each member of the panel is equal.

  If there is a dissent, it is noted on the

If there is a dissent, it is noted on the Decision. Decision.

Written Reasons Written Reasons

Could a health professional Could a health professional challenge the decision of the challenge the decision of the Board? Board?

  YES

YES

  Procedure set out in s80 of HCCA

Procedure set out in s80 of HCCA

  Note: HCCA s19

Note: HCCA s19 – – Order authorizing Order authorizing treatment pending Appeal treatment pending Appeal