Consent and Capacity Board


Applying to the Board to Depart
from Wishes (Form E)

www.ccboard.on.ca

When an individual is responsible for making decisions on behalf of an incapable person, she or he must do so in accordance with certain rules. One of these rules requires that the individual give or refuse consent in accordance with the wishes of the incapable person if those wishes were expressed when the person was capable and at least 16 years old.

In certain circumstances, however, one may apply to the Consent and Capacity Board for permission not to follow prior capable wishes. You may be able to apply to the Consent and Capacity Board to depart from the prior capable wishes of the incapable person if:

• You have assumed responsibility for giving or refusing consent on behalf of a person who is incapable with respect to treatment, a personal assistance service or admission to a care facility.
  
  
• You are the health care provider for the incapable person and you have notified the person who assumed responsibility for giving or refusing consent before the application is made.

Whenever an application of this type is received, the law provides that the patient is deemed to have applied for a review of his or her capacity to make the relevant decision. This does not apply if the Board has determined this issue of capacity within the previous six months.

Please note: The Board may only grant permission to depart from prior capable wishes if it is satisfied that the likely result of the proposed action is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.

How do I Apply?

Fill out an application (Form E) and send it to the Board. You can fill out the form by yourself, or with the help of a social worker, health professional, lawyer or someone else.

The form may be available where you obtained this information sheet. You may also be able to get the form at a hospital or other facility. If you cannot find a form or if you do not know how to send the form, call the Board for assistance or check our web site at www.ccboard.on.ca.

Do I need a lawyer at the hearing?

It may be a good idea to have a lawyer represent you but you are not required to have one. You may contact a lawyer on your own or through the Lawyer Referral Service. Their number is listed in the White Pages under The Law Society of Upper Canada and in the Yellow Pages under Lawyer Referral Service.

When & where will the hearing be?

You will receive a notice from the Board with the time and place of the hearing. The hearing will usually take place within a week after the Board receives the application and will usually take place close to where the incapable person is located. If the person is in an institution, the hearing will probably be held there.

What will the Board consider?

Wishes expressed by a person while capable and at least sixteen years old are normally binding. The Board has very limited powers to give permission to depart from those wishes.

Permission may only be granted if the Board is satisfied that the likely results of the proposed action are much better than in comparable circumstances at the time the wishes were expressed and that the person, if capable, would probably now give consent. This may occur, for example, if there has been a medical breakthrough since the wishes were expressed.

Who are the parties to the hearing?

The parties to the hearing are you, the incapable person and a health practitioner or other service provider.

What will happen at the hearing?

Each party may attend the hearing and invite anyone they want. Each party may have a lawyer, call witnesses and bring documents.

Each party and the Board members may ask questions of each witness.

At the end of the hearing each party will be invited to summarize and the Presiding Member will then end the meeting.

The Board will decide to either

• Allow you to depart from prior capable wishes, or
• Order that the prior wishes be respected.

What happens after the hearing?

The Board will meet in private to make its decision and will issue the decision within one day. Written reasons will be issued if any of the parties request them within thirty days of the hearing.

Can the Board’s decision be appealed?

Any of the parties may appeal the Board’s decision to the Superior Court of Justice.

If you would like to contact the Board or fax an application, please use any of the numbers below: