by Written on behalf of Wise Health Law December 07, 2018 5 min read

The documentary movie entitled “God Knows Where I Am” chronicles the last few months of the life a woman in New Hampshire. She had become ill later in life and was a diagnosed schizophrenic. However, she did not accept that she was mentally ill. She did not see the need for treatment, and refused any help beyond accommodation and food. She was eventually discharged as her physicians felt that there was nothing more that they could do for her given her refusal to accept treatment. There was evidence that her medication if taken, would have resolved, and possibly cured her condition. It is ultimately a tragic tale of the problems associated with a commitment to individual liberty even where it is obvious that such a value position was the cause of her death.

Ontario’s Health Care Consent Act (HCCA)

Fortunately, such a systemic failure is not likely to happen here in Ontario. The purpose of the Ontario Health Care Consent Act (HCCA) is intended to prevent a similar abandonment from occurring. The legislation provides the rules with respect to consent to treatment that is to be applied consistently throughout the Province. It also provides the means to facilitate the admission, treatment and compelled assistance required by persons who lack the capacity to make such decisions for themselves.

Capacity

The Act defines capacity as follows:
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.

Consent Required for Treatment

Any treatment to be provided by a health care practitioner requires the consent of the patient, or where they are incapable, from their substitute decision maker. The elements of consent are specified to be as follows:
  1. The consent must relate to the treatment.
  2. The consent must be informed.
  3. The consent must be given voluntarily.
  4. The consent must not be obtained through misrepresentation or fraud.

Incapacity

The Consent and Capacity Board is the body who determines whether a patient is capable of consenting to treatment. Where it is determined that a patient does not have the capacity they have the right to appeal the decision. The appeal is first to a single judge in the Superior Court of Justice (SCJ). Thereafter the patient may appeal to the Ontario Court of Appeal (OCA).

Appeals About 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.

Mr. Barker’s Incapacity Appeal

The test for capacity under the HCCA was established by the Supreme Court of Canada (SCC) in Starson v. Swayze. The test requires:
  • that Mr. Barker was able to understand the information that is relevant to making a treatment decision and,
  • that Mr. Barker was able to appreciate the reasonably foreseeable consequences of the decision or lack of one.
It was the second of these two requirements that were being contested. The standard of review was reasonableness. The appeal was denied as the decision was found to be reasonable. The psychiatric evidence below was uncontradicted. Mr. Barker’s dilemma was that although he agreed that people with a mental illness should receive medication, he did not need to be medicated as he was not mentally ill.

The Common Issue of Ancillary Treatment

The HCCA deals with ancillary treatment in section 23 which reads as follows:
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.


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