Tag: Consent and Capacity Board

08 Sep

Older Adults and Capacity to make Decisions: Protection vs. Autonomy

Rebecca Rauws Elder Law Tags: , , , , , , , , , , , , , 0 Comments

As we age, many of us begin to experience the normal consequences of aging, including some memory loss. Unfortunately, many of us may end up suffering from Alzheimer’s and related dementias. As a result, capacity has become a bigger problem among seniors.

There are ways to manage decision-making for a senior who has lost capacity to make his or her own decisions about care or property. If the person executed a power of attorney, their attorney can step in. If there is no power of attorney, a guardian can be appointed by the court. However, the imposition of a substitute decision maker can be a significant restriction on an older adult’s liberty, and some seniors may resist that imposition.

An article in The Walrus earlier this year considered this issue, and the impact a finding of incapacity can have on a senior’s autonomy in Canada.

One of the concerns discussed in the article is that “some seniors find that, once declared incapable, they are unable to challenge the decision.” In Ontario, we have the Consent and Capacity Board, which is an independent tribunal that, among other things, reviews various determinations regarding an individual’s capacity. However, this is apparently a rarity in Canada. The only other similar body is located in the Yukon.

Another issue raised by the Walrus article is with the lack of a standardized system for assessing capacity. The person doing the assessment can vary (doctor, nurse, social worker, etc.), as well as the tests conducted. This is made even more complicated by the fact that there are differing levels of capacity for different tasks (e.g. making a Will, managing property, getting married, granting a power of attorney for personal care).

Unfortunately, the lack of attention paid to the issue of aging and capacity appears to be systemic. As cynically, but perhaps also realistically stated in the Walrus article: “It can seem like a great deal of attention is paid to other institutions that house vulnerable segments of the population, such as children in daycares. But there’s no future in aging; there is next to no potential that a senior might one day cure cancer or be the next prime minister. Reform in elder care may be desperately needed, but it hasn’t been forthcoming.”

There is a fine balance to be struck between restricting seniors’ autonomy, and protecting vulnerable people. A collaborative “supported decision-making model”, as discussed in the article may be one way of doing this. I hope that as more attention is drawn to these issues, there will be greater awareness, and increased progress and reform for our seniors.

Thanks for reading,

Rebecca Rauws


You may also enjoy these other blog posts:

30 Jun

Changes to Consent and Capacity Board Coverage

Noah Weisberg Capacity, In the News Tags: , , , , , , , , , 0 Comments

Legal Aid Ontario has published a notice setting out changes to coverage for Consent and Capacity Board appeals.

Effective June 23, 2020, Legal Aid Ontario is making the following changes to its certificate coverage:

    1. an additional 10 hours will be offered to the current 25 hours allocated on the CCB appeal tariff. This increases total coverage to 35 hours
  1. a new 10-hour certificate for motions for emergency/urgent CCB treatment orders held in the Superior Court is being introduced

The full notice can be found here.

If you have applied for CCB appeal coverage from March 13 onward, Legal Aid Ontario will be contacting you regarding the notice.  If you have not heard from Legal Aid Ontario, you should contact them directly.

Any attempt to increase access to justice, is always welcome.

Noah Weisberg

If you find this blog interesting,  please  consider these other related blogs:

06 Jan

Bill 122 Comes into Force

Suzana Popovic-Montag Capacity, General Interest, Health / Medical Tags: , , , , 0 Comments

This past fall, the Minister of Health and Long-Term Care introduced Bill 122, The Mental Health Statute Amendment Act, to the Ontario legislature. It received Royal Assent on December 10, 2015 and officially came into force on December 21, 2015.

By way of background, the bill’s purpose was primarily to make changes to the Mental Health Act  (“MHA”) in order to provide the Consent and Capacity Board with new powers with respect to the criteria under which a patient can be held involuntarily in a psychiatric facility as well as to address the length of time under which a patient can be involuntarily held.

The bill emerged as a response to the Ontario Court of Appeal’s 2014 decision in P.S v Ontario in which the court declared provisions in the MHA which allowed indefinite renewals of fourth certificates of involuntary admission, to be unconstitutional. The legislature was provided with one year to amend the MHA in light of the decision.

A brief summary of some of the most significant changes is as follows:

1- The new class of “certificate of continuation” is created.

Under a certificate of continuation, involuntary patients can only be detained for three additional months under a first and subsequent certificate of continuation.

The process for the first three certificates of renewal remains the same. This means that involuntary patients can still be detained for one additional month under a first certificate of renewal, two additional months under a second certificate of renewal, and three additional months under a third certificate of renewal. However, the process now ends after the third certificate of renewal. At this point, the detention can only continue under the new certificate of continuation.

2- The Consent and Capacity Board is granted new order-making powers that can be exercised at hearings with respect to the new class of certificates of continuation (for patients who have been detained for periods longer than six months).

3- The officer in charge of the psychiatric facility is now to be made a party to any hearing where a certificate of continuation is at issue.

There are, of course, further changes as a result of Bill 122 which can be read about in more detail here. These include the transition provisions which will undoubtedly be an important part of the implementation as this new legislation goes into effect.

Thank you for reading.

Suzana Popovic-Montag


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