CONSENT AND CAPACITY
BOARD

Office of the Chair and CEO
R. John Harper

June 30, 2003

The Honourable Tony Clement
Minister of Health and Long-Term Care
80 Grosvenor Street
10th Floor, Hepburn Block
Toronto, ON M7A 2C4

Dear Minister:

On behalf of the Consent and Capacity Board, it is my pleasure to submit our 2002/2003 Annual Report pursuant to the MBS Agency Establishment and Accountability Directive.

Yours sincerely,

R. John Harper
Chair and CEO
Consent and Capacity Board

Consent and Capacity Board
2002/2003 Annual Report

TABLE OF CONTENTS

OVERVIEW OF THE BOARD

JURISDICTION OF THE BOARD

ORGANIZATIONAL CHALLENGES

CONTINUING IMPACT OF LEGISLATIVE CHANGE

BOARD MEMBERSHIP

BOARD PERSONNEL

FINANCIAL ANALYSIS

OVERVIEW OF THE BOARD

The Consent and Capacity Board is an independent body created under the Health Care Consent Act by the provincial government. The Board conducts hearings under the Mental Health Act, the Health Care Consent Act, the Substitute Decisions Act and the Long-Term Care Act. The Board functions under statutory requirements and a memorandum of understanding between the Chair, the Minister of Health and Long-Term Care, and the Deputy Minister of Health and Long-Term Care.

Board members are psychiatrists, lawyers or members of the general public. For the vast majority of its cases, the Board is required, by law, to sit in panels of three (lawyer, psychiatrist and community member) or in panels of five. A small number of cases may be heard by a Senior Lawyer Member (who meets certain legislated criteria) sitting alone. The Board is divided into set regions and members belong to the region in which they live or work. For the most part, members adjudicate within their own region but travel to other regions as required.

The regional structure is presently under review. The designation of the nine geographical regions has an historical foundation. The Board is presently undergoing a transition this is incorporating the creation of regions that can be rationalized having regard to a number of criteria, including, costs, resources and community of interest. Transition planning is moving the Board in the direction of dividing the province into the same regions that are used by the Ministry of Health and Long-Term Care.

The reconfigured regional structure will provide for a vice chair to be responsible for each of the regions in accordance with authority that may be delegated by the chair of the Board from time to time. Primarily, the vice chairs will be responsible for liaison with the stakeholders within the region and to act as a resource for the Board members within their region.

JURISDICTION OF THE BOARD

The Board has authority to hold hearings to deal with the following matters:

Health Care Consent Act

• Review of capacity to consent to a treatment, admission to a care facility or a personal assistance service.
• Consideration of the appointment of a representative to make decisions for an incapable person with respect to treatment, admission to a care facility or a personal assistance service.
• Consideration of a request to amend or terminate the appointment of a representative.
• Review of a decision to admit an incapable person to a hospital, psychiatric facility, nursing home or home for the aged for the purpose of treatment.
• Consideration of a request from a substitute decision-maker for directions regarding wishes.
• Consideration of a request from a substitute decision-maker for authority to depart from prior capable wishes.
• Review of a substitute decision-maker's compliance with the rules for substitute decision-making.

Mental Health Act

• Review of involuntary status (civil committal).
• Review of a Community Treatment Order.
• Review as to whether a young person (aged 12 to 15) requires observation, care and treatment in a psychiatric facility.
• Review of a finding of incapacity to manage property.
• Review of a finding of incompetence to access or allow others to access the clinical record.
• Consideration of the appointment of a representative for the purpose of access to, or disclosure of, records.
• Consideration of a request from a psychiatric facility to withhold access to a clinical record.

Substitute Decisions Act

• Review of statutory guardianship for property.

Long Term-Care Act

• Consideration of a request to withhold access to a clinical record.

ORGANIZATIONAL CHALLENGES

During fiscal 2002-2003 the Consent and Capacity Board focused on organizational challenges in two key areas: membership renewal and administrative restructuring. Membership renewal is an ongoing challenge for the Board, but particularly so over the past two years. The high rate of renewal and growth among members has had a significant impact on Board resources. The administrative restructuring is ongoing.

The Board is continuing to Minister's assess the regional needs to ensure that the very best candidates are put forward for membership. Over the years, the Board has developed a rigorous screening program for candidates in an effort to ensure that the qualities and expectations of both the candidate and the Board are a good match.

In 2002-2003, Board membership continues to change as new members are appointed to replace those members whose terms have expired. To more efficiently deal with the volume of training required, the Board created and implemented a central, formalized training program.

In addition to managing membership renewal and training, the Board continued the administrative restructuring. The Board office in Toronto presently coordinates hearings that were formerly scheduled in the regional offices of Hamilton, Thunder Bay, Ottawa, Penetanguishene and Sudbury. This represents 80% of all applications that are received by the Board.

The centralization of the case coordination has resulted in the ability to begin to develop much needed technology systems that allow for case management, tracking and control of the ever increasing numbers of matters that are coming before the Board. It also allows for the ability to collect and analyse data in order to identify and meet the needs of the Board and it’s stakeholders.

CONTINUING IMPACT OF LEGISLATIVE CHANGE

Mental Health Legislative Reform, 2000 (Bill 68) made several changes to the Mental Health Act and the Health Care Consent Act, including the following:

• The addition of community treatment order (CTO) provisions.
• The addition of new grounds to the civil commitment criteria. These criteria authorize involuntary examination, assessment and detention of certain individuals who might not have come under the previous legislation.

The amendments, which came into effect December 1, 2000, expanded the role and function of the Consent and Capacity Board to include optional review of Community Treatment Orders and a mandatory review of the second consecutive order and every second order thereafter. Reviews of involuntary committal are substantially longer than before because the changes to the legislation essentially tripled the number of potential factors to be considered. Furthermore, as a result of the amendments, the Board is now required to conduct a hearing into the patient's relevant decision-making capacity virtually every time a hearing is convened for any purpose under the Health Care Consent Act. Overall, the Board is doing more hearings and those hearings are greater in length, more complex in nature, and significantly higher in sensitivity.

While the number of CTO applications has remained low (34 in this fiscal year), they are time consuming. The expanded involuntary committal criteria continues to have significant implications for the Board's resources because of the length of the hearings. Hearings also take longer because lawyers and physicians are still familiarizing themselves with the nuances of the amendments to the legislation. Moreover, because the courts have not yet heard these matters on appeal, many questions of legal interpretation remain unanswered in a conclusive way.

Ontario has always been seen as a leader in the area of mental health and consent law. Because of the aging population, and increased interest and changing views with respect to mental health law and services, the Ontario experience in this area is subject to an ever-increasing level of legal, academic and public interest. Not surprisingly, the amendments to the legislation in 2000 significantly increased the level of legal scrutiny, as well as, public and academic interest – both in Ontario and internationally. Consequently, the decisions and work of the Board are undergoing closer scrutiny than ever before. In fact, for the first time, the Supreme Court of Canada has granted leave to hear a case on appeal from the Consent and Capacity Board.

BOARD MEMBERSHIP

BOARD PERSONNEL

As of March 31, 2003

FINANCIAL ANALYSIS

The major cost driver for the Board is the conduct of hearings. The Board has no discretion regarding the holding of hearings. Board decisions impact on the life and individual liberty of people in Ontario and are usually urgent in nature. The Board has a statutory obligation to commence a hearing on an application within seven days.

Additional costs for scheduling and Board members' travel are attributed to the growth in the number of hearings under the Health Care Consent Act and the Substitute Decisions Act which require the Board to hold hearings in residences, local hospitals, etc. A shortage of psychiatrists in some regions requires that some of the members incur considerable travel costs to attend hearings in other regions.

Board caseload has been increasing annually. For example, applications have increased from 2,494 in 1995/1996 to 3,678 in 2002/2003. Board caseload has also been increasing in intensity. Hearings that are more complex have resulted in increased requests for written reasons, increased need for the services of court reporters and in appeals to the courts.