Challenging Decisions of the Consent and Capacity Board

September 14, 2010 Hull & Hull LLP Capacity, Estate & Trust Tags: , , , , , , 0 Comments

The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient’s consent, or where the patient is incapable the patient’s substitute decision-maker: section 10 of Ontario’s Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA’s s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner’s finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner’s finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board’s powers, substitute its opinion for that of the health practitioner’s, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board’s decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge’s overturning the Board’s finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board’s finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board’s finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

Christopher M.B. Graham – Click here for more information on Chris Graham.





Leave a reply

Your email address will not be published. Required fields are marked *


Enter your email address to subscribe to this blog and receive notifications of new posts by email.



Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!




  • This Monday, @ihull joined Avi Charney of Charney Legal on his podcast: Speak to a Lawyer. In the interview, they d…
  • Should you have co-executors for your will? Today’s article explores the advantages and disadvantages of naming mu…
  • Bob Ross: A Not-So-Happy Mistake Last Wednesday’s article discusses Bob Ross's estate. Read the full blog here:…
  • Read today's article: The “Appropriate Means” factor under section 5 of the Limitations Act, 2002. Full blog here:…
  • The September issue of The Probater is now available! Calmusky v Calmusky and Mak (Estate) v Mak: What is the Stat…
  • Read today's article: The lasting cognitive impact on 9/11’s Ground Zero first responders. Full blog here:…