When a loved one is receiving mental health care, you may discover that a healthcare provider has found them "incapable" of making a specific treatment decision. In Ontario, this finding can be challenged through a legal document known as a Form A. Understanding this process is essential for caregivers who want to ensure their loved one’s rights are respected while they navigate the path to recovery.
What is a Form A?
A Form A is an application to the Consent and Capacity Board (CCB).
The CCB is an independent Ontario tribunal that reviews certain decisions about mental health, treatment, capacity, substitute decision-making, and related issues. When a Form A is filed, the patient is asking the CCB to review the health practitioner’s finding that they are incapable of consenting to a proposed treatment.
The issue is not whether the treatment is a good idea in general. The issue is whether the person is legally capable of making that particular treatment decision at that particular time.
The Form A process helps to ensure that a person's right to bodily autonomy is not taken away without a fair review by a neutral third party. While it is often frustrating if a necessary treatment is delayed, the process is intended to protect individuals from being treated against their will if they are, in fact, capable of deciding for themselves. Fortunately, the CCB hearings take place very quickly after an application is filed.
How the process is triggered
If a patient in a psychiatric facility is found incapable regarding treatment, they must be given a written notice (a Form 33) and have access to a rights adviser. The rights adviser explains the significance of the finding and assists the patient if they wish to apply to the CCB using a Form A.
The Form A is simple to complete and file.
The Legal Test for Capacity
At a CCB hearing, the Board reviews the evidence to see if the patient meets the legal "test for capacity". This test asks two questions:
- Is the person able to understand the information relevant to making the treatment decision?
- Is the person able to appreciate the reasonably foreseeable consequences of making (or not making) that decision?
The second part of the test is usually where mental health cases become difficult. A person may be intelligent, articulate, and able to repeat information about diagnosis, medication, side effects, and treatment options. But the legal question is not only whether they can recite information. The question is also whether they can appreciate how that information applies to their own situation.
The CCB Process Can Delay Treatment
One of the most important things for caregivers to understand is that once a patient indicates they want to challenge a finding of incapacity, the proposed treatment usually cannot begin if it has not already commenced. The status quo is maintained until the CCB renders a decision or, if that decision is appealed to court, until the appeal is resolved.
This can create very difficult situations.
From the family’s perspective, the person may be extremely unwell and in urgent need of treatment. The substitute decision-maker may be ready to consent. The treating physician may believe treatment is necessary and that the patient or others are at risk of serious harm. The CCB may have agreed that the person is incapable with respect to the treatment decision. Even then, if an appeal is filed, treatment will usually still be delayed.
When patients file in Court to appeal the CCB decision, they are usually not successful. However, in many cases, the patient's appeal stalls because their lawyer files the appeal but is not retained to move the appeal forward. There are numerous reasons for this that are outside the scope of this blog.
Because the hospital is unable to provide treatment, the decision is sometimes made that it would be best to make the bed available for someone who can benefit from treatment. This is an area of the law that many groups, including the Ontario Psychiatric Association, have been advocating to amend. In particular, that treatment should be able to commence even though the appeal has not concluded, on the basis that both the physician and CCB have found the patient to lack capacity to make that particular treatment decision; the patient had rights advice; and that if the patient had made a prior capable wish, then that wish would be upheld by their substitute decision-maker. In other words, that there are already several checks and balances to protect patient rights.
Legal Support for Caregivers
If your family is dealing with capacity assessments or upcoming Consent and Capacity Board hearings, you do not have to navigate these legal complexities alone. Lisa Feldstein Law Office provides specialized advice to family caregivers, helping you understand the law, prepare for a CCB hearing, and advocate for your loved one’s best interests. Contact us today to learn how we can support you through the legal side of a mental health crisis.
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