Appeal court reins in Consent and Capacity Board

November 21, 2018: Toronto - The Ontario Court of Appeal issued a ruling today restricting when psychiatric patients may be treated against their will. The Court partially reversed two decisions of the Consent and Capacity Board in which the Board had made incapacity findings in respect of multiple treatments on the strength of evidence of incapacity in respect of only one of those treatments. As a result, patients may be treated on the basis of substituted consent only where they are actually incapable in respect of a treatment or where a secondary treatment is, in fact, necessary and ancillary to a primary treatment in respect of which they are incapable.

The appeal arose from two separate applications to the Consent and Capacity Board, one called Barker v. Patel and the other Mitchell v. Banik, in which patients were challenging the findings of their doctors that they were incapable of making their own decisions respecting psychiatric medications. In circumstances that were strikingly similar, the Board, of its own initiative, inquired into whether any secondary treatments would be necessary and ancillary to the primary treatment proposed, which was neuroleptic medication in both cases. The Board then made findings of incapacity in respect of the secondary treatments as well, in the absence of evidence.

The cases were both appealed to the Superior Court, where the Board's decisions were upheld. Following a joint appeal hearing on October 26, 2018, Justice Ian V.B. Nordheimer, writing for himself and Justices Paul Rouleau and David Paciocco, overturned the findings of incapacity in respect of secondary treatments that the Board had ruled were necessary and ancillary. The Court interpreted section 23 of the Health Care Consent Act, 1996 as permitting a secondary treatment based on substitute consent only where it was necessary and incidental to a primary treatment. This did not imply that the person being treated was incapable in respect of the secondary treatment for all purposes. The Court also rejected an argument by the lawyers for Dr. Banik that the appeal was moot.

The successful appellant in Mitchell v. Banik was represented by Joanna Weiss and Sarah Latimer of Swadron Associates. To read the full text of the decision, please click here.