The Health Care Consent Act (HCCA) was passed in Ontario in 1996 and is legislation that deals with the capacity to consent to medical treatment.
The HCCA makes it clear that a person has the right to consent to or refuse treatment if they have mental capacity. That means that the patient must be able to understand and appreciate the consequences of their treatment decision. That means informed consent.
In order to demonstrate informed consent, the patient must be capable of understanding the proposed or recommended treatment and the associated risks and benefits. That requires that the patient is able to understand the information that is relevant to making a decision about the treatment and be able to appreciate the reasonably foreseeable consequences of their decision.
The HCCA is different from Ontario’s Mental Health Act (MHA). The MHA deals with detention and treatment within a psychiatric facility while the HCCA governs the ability to treat a patient within a hospital.
Where a patient lacks the capacity to consent or understand (lack of capacity for personal care) they will require a substitute decision-maker (SDM). That process is governed by the Substitute Decisions Act (SDA) to make decisions on their behalf relating to treatment and medication.
The Supreme Court of Canada (SCC) dealt with the HCCA in its decision in Starson v. Swayze (2003) dealt with the right of a mentally ill person to refuse treatment, even when it is in their best interests to be treated. In the case, the respondent had been in and out of mental health facilities across North America and had been diagnosed with bipolar disorder. He had been admitted to a hospital after being found not criminally responsible for uttering death threats. His physicians recommended treatment involving multiple types of medication, and the patient refused to consent. His treating physician found that he was incapable of making this decision. The respondent applied to the Ontario Consent and Capacity Board for a review of the doctor's decision but was unsuccessful.
However, he sought judicial review of the decision by the Superior Court of Justice, which overturned the doctor's determination. The case eventually made its way to the Supreme Court, which found:
The Health Care Consent Act, 1996, presumes a person is capable to decide to accept or reject medical treatment; therefore, patients with mental disorders are presumptively entitled to make their own treatment decisions. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act. Capacity involves two criteria: first, a person must be able to understand the information that is relevant to making a treatment decision and second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.
The SCC found that the Board had failed to properly apply the capacity criteria, and therefore failed to establish that the patient lacked capacity to understand the effects and risks of the proposed treatment. Clearly, where the presumption is that of capacity, the test to demonstrate that capacity is lacking must be carefully applied and assessed, which in this case did not occur.
When a question around capacity arises with respect to a patient who is refusing medical treatment, physicians and hospitals need to keep in mind the presumption of capacity. If it is suspected that a patient does not properly understand the consequences of their decisions, all proper channels need to be explored and the patient's capacity must be fully assessed under the legislative standard. Overriding an individual's wishes when it comes to medical treatment is a serious step to take, and so all providers involved need to proceed cautiously.
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.