Consent to Treatment – Recent Caselaw

In this blog we recently looked at the issues that will face the Supreme Court of Canada in the Rasouli v. Sunnybrook Health Sciences Centre case.  The decision of the Ontario Court of Appeal in that case highlighted the role of the Consent and Capacity Board (the “Board”) established by the Ontario Health Care Consent Act (the “Act”).  There, the issue was the role of the Board where a patient is clearly incapacitated (in a permanent vegetative state and on life support) and there is a conflict between the instructions of a substitute decision-maker and the opinion of the patient’s medical practitioners.  However, the Board also plays an important role in dealing with parties who are capable of expressing their wishes but, due to mental illness (age-related or otherwise), may lack the requisite capacity to make decisions concerning their health treatment.

In a recent Ontario Superior Court of Justice case, the test in such situations was reviewed in the context of an appeal by an elderly patient from a decision of the Board finding her incapable with respect to treatment with antipsychotic and thyroid medication.

The Court highlighted the starting point under s. 4(2) of the Act; that a person is presumed at law to be capable of deciding whether to accept or reject medical treatment.  At a capacity hearing, the onus is on the medical practitioner to prove (on the civil burden of a balance or probabilities) that a person lacks that capability.  The case notes that, historically, the onus was sometimes forgotten in cases of mental illness and that the Board must be conscious of the pitfall of equating the presence of a mental disorder with incapacity.

In considering the issue of capacity, the Court reviewed the elements set out in s. 4(1) of the Act:

“A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

If shown that a patient does not meet this standard of capacity, he or she can be declared incapable within the limited parameters of the Act.

Here, the Court found that there was a preponderance of evidence of incapacity.  Longstanding problems with schizophrenia, lack of cooperation with treatment and fixed delusional and paranoid beliefs rendered the patient incapable understanding information relevant to her medical treatment.  The Court therefore upheld the declaration of incapacity by the Board.

Duroche v. Somal

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