4(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.The Act presumes that everyone has such capacity.
Two such appeals recently came before the OCA, and were reported in the same decision.Like the woman in the documentary, the first of the two patients, Mr. Barker, denied that he suffers from a mental illness. He wished to refuse his medication. The evidence was that he was incapable and that his medication would ameliorate his illness, if not cure it. His issues on appeal dealt with both the finding that he was incapable of consenting to treatment and the ancillary treatment issue. The second patient, Mr. Mitchell, was aware that he suffered from a mental illness. He vacillated, however, between accepting that his medication would help and denying that it would. His stated incapacity was that he was incapable of appreciating the reasonably foreseeable consequences of his lack of treatment. Mr. Mitchell’s sole issue on appeal was the ancillary treatment issue.
Authority to consent to a treatment on an incapable person’s behalf includes the authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.In Rizzo & Rizzo Shoes, the SCC had made it clear that the first rule of statutory interpretation was to base it on the plain and ordinary meaning of the wording used. Here the OCA read section 23 to mean:
...once a determination is made with respect to the incapacity of an individual to consent to treatment, the resulting authority to administer treatment carries with it the authority to administer “another treatment that is necessary and ancillary” to the primary treatment. No further or separate finding of incapacity is necessary for that authority nor is any separate order required. Indeed, s. 23 expressly provides that the authority results “even if the incapable person is capable with respect to the necessary and ancillary treatment”. In my view, the wording of the section could not be clearer.Both Mr. Barker and Mr. Mitchell argued that there should be a capacity hearing on ancillary treatment either initially or when the need arose. This position was rejected by the OCA for practical reasons. The main one was the delay such a further step would require. As an example, Mr. Barker’s case had now dragged on for two years without his being administered his medication. The Intervener in the case, The Empowerment Council, argued for a very narrow definition of what ancillary treatments would properly be considered necessary. This position was also rejected by the OCA as being impracticable, overly restrictive and contrary to the wording of the section. The practice that has developed of assuming an incapacity for ancillary care when such a finding was made for primary treatment, is wrong. Such a finding is unnecessary given the plain meaning of s.23. The section provides the solution and should be used in that way. At Wise Health Law, we focus on health and administrative law, including matters relating to consent and capacity. Our lawyers have significant trial and appellate experience and are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. If you are a capacity assessor facing a review of your decision or are involved in another issue before the Consent and Capacity Board, contact us. We will guide you through the Board process, help you understand potential risks and legal implications, and assist you with or skillfully represent you at the proceedings Based on our highly-specialized knowledge and experience in healthcare litigation, we often receive referrals from other lawyers and legal professionals. Contact us online, or at 416-915-4234 for a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).