CONSENT AND CAPACITY
BOARD

Office of the Chair and CEO
Theodore Nemetz

June 30, 2004

The Honourable George Smitherman
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 2003/2004 Annual Report pursuant to the MBS Agency Establishment and Accountability Directive.

Yours sincerely,

Theodore Nemetz
Chair and CEO
Consent and Capacity Board

Consent and Capacity Board
2003/2004 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 six districts and while members are appointed province wide, for the most part, members adjudicate within their own district and travel to other districts as required.

The district structure has just been completed. There had previously been nine geographical regions corresponding to the locations of the former Provincial Psychiatric Hospitals. The Board has completed transition incorporating the creation of six districts that can be rationalized having regard to a number of criteria, including costs, resources and community if interest. The Board has now divided the province into the same regions/districts used by the Ministry of Health and Long-Term Care.

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

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 the fiscal year 2003-2004 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 essentially complete. All case co-ordination is now centralized in Toronto with the stakeholders being able to contact the Board office through a local telephone and fax number.

The Board is continuing to assess its 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. The Board also tries to have each member sit regularly to ensure they remain up-to-date with the adjudicative process.

In 2003-2004, 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 an intense central, formalized training program.

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 its stakeholders.

The Board engaged in-house Counsel who is responsible for publishing the Board’s decisions on-line at www.Canlii.org. The availability of the Board’s decisions on-line at no charge allows all of our stakeholders to view the case law as it is evolving and allows them to be better prepared for hearings. The Counsel also acts as a resource to the members finding precedents. This will bring about a more consistent approach by all members in their decision making.

In the upcoming year the Board intends to embark on strategic review of its service delivery to achieve optimum performance.

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. In the result more panels are required to deal with the ongoing hearings.

The number of CTO applications has increased (62 in this fiscal year) and are very time consuming. In addition the required mandatory review of CTO’s has added additional hearings. As the use of CTOs grows there will be more mandatory reviews which come with each second renewal. 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. There have been 5 appeals taken from decisions of the Board concerning Community Treatment Orders but only 3 have been dealt with by the Court up to this time. There is still much needed judicial direction needed.

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. For the first time, the Supreme Court of Canada heard and ruled on a case on appeal from the Consent and Capacity Board. As more appeals are heard by the Superior Court of Justice and Court of Appeal conflicting jurisprudence will be resolved.

BOARD MEMBERSHIP

BOARD PERSONNEL

As of March 31, 2004

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 calendar 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 3,678 in 2002/2003 to 4,152 in 2003/2004. 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.

In November 2003 the Board moved to using court reporters for all hearings in response to concerns raised by the Ombudsman about transcripts. A significant portion of our deficit was a result of this change.