Ontario Consent and Capacity Board's impact on personal injury cases

• The Consent and Capacity Board (CCB) assesses capacity in specific decisions, not blanket declarations.
• A finding of incapacity does not automatically extend to other areas like instructing a lawyer or managing litigation.
• Lawyers must take immediate action when a client is found incapable by the CCB to protect their interests and comply with provincial laws.

The practical effects are immediate, including the inability to initiate legal proceedings, sign documents, or make decisions about treatment.

When a serious injury raises concerns about a client's legal capacity, the Ontario Consent and Capacity Board (CCB) steps in to resolve disputes. The CCB operates independently of the Ministry of Health, serving at the intersection of health and justice. Its primary role is to assess specific decisions made by individuals with uncertain capacity, ensuring their liberty, autonomy, or healthcare rights are protected.

The CCB's process is swift, scheduling hearings within seven days of receiving an application and delivering a decision the next day. Written reasons follow within four business days. This efficiency underscores the importance of understanding how the CCB's findings can impact personal injury cases.

The Health Care Consent Act (HCCA) provides the legal framework for capacity assessments, including the two-part test confirmed in Starson v. Swayze (2003 SCC 32). To be found capable, an individual must understand the information relevant to a decision and appreciate the reasonably foreseeable consequences of that decision. Refusing treatment does not automatically indicate incapacity; it's about how one reasons through decisions, not agreement with proposed options.

The burden of establishing incapacity falls on those asserting it, and HCCA s. 4(2) presumes every person is capable unless there's reason to believe otherwise. A finding of incapacity for a specific decision does not automatically extend to other areas, such as instructing a lawyer or managing litigation.

A client found incapable by the CCB may limit their ability to instruct their lawyer or manage their case. This requires lawyers to take immediate action to protect their clients' interests and comply with provincial laws and deadlines. The practical effects are immediate, including the inability to initiate legal proceedings, sign documents, or make decisions about treatment.

Lawyers must navigate these complexities carefully, often requiring a formal decision-making arrangement for their client's protection. The Law Society of Ontario provides guidance for lawyers in such situations, emphasizing the need to protect clients' interests while ensuring compliance with provincial laws.

A finding of incapacity by the Ontario Consent and Capacity Board may limit a plaintiff's ability to instruct their lawyer or manage their litigation, requiring lawyers to take immediate action to protect their client's interests and ensure compliance with provincial laws and deadlines.

Source: Original reporting via Briefly