Consent & Capacity / Mental Health Law

We know that having a loved one with a mental illness can be difficult for the entire family.


Mental health law is a challenging area as it strives to balance patient autonomy and the protection of vulnerable persons. On one hand it attempts to preserve the rights of individuals to make decisions about their own bodies relating to medical treatment or admission to psychiatric or long-term care facilities; on the other hand, it attempts to protect people from themselves when they do not have the capacity to make such decisions. The law in Ontario establishes a legal test for capacity that must be met in order for a person to make certain types of decisions.

Consent and capacity issues can arise when health care decisions are made by or for people with:

  • mental illness
  • dementia
  • brain injuries
  • developmental or intellectual disabilities

Consent and capacity laws can also apply to decisions involving children, particularly adolescents and teenagers.

Three key statutes in Ontario govern consent and capacity and mental health law: the Health Care Consent Actthe Mental Health Act and the Substitute Decisions Act. We have significant expertise in the interpretation and application of these statutes.


Family members regularly interact with the health care system as substitute-decision makers, guardians, attorneys (under a Power of Attorney), witnesses, advocates and caregivers. We provide advice in the following types of situations:

  • Parents disagree about health care decisions for their child
  • Parents feel pressured by the health care team to make a particular decision for their child
  • Adult children disagree about the best type of care for a parent
  • A substitute decision-maker is required to follow a Power of Attorney but does not feel it reflects what the patient would have wanted in light of the circumstances
  • A person finds out he or she is a substitute decision-maker or Power of Attorney but does not understand his or her legal obligations
  • A person wants to become a patient’s substitute decision-maker
  • A person wants her family member to obtain treatment for mental health issues but he refuses to seek help
  • A parent finds out a child was involuntarily admitted to a psychiatric facility, and needs assistance understanding the applicable laws
  • A person receives notice that he is going to be called as a witness at a Consent and Capacity Board hearing and wants legal advice
  • A health care professional does not want to follow a parent’s decision about his child’s treatment because the professional does not believe the decision is in the child’s best interests
  • An elderly person is found to be incapable with respect to making decisions about admission to long-term care and, to the family’s surprise, challenges this finding at a tribunal
  • There is disagreement about what care or treatment a person in a persistent vegetative state would want
  • Family members disagree about end of life care of a loved one (such as whether to remove a feeding tube)
  • Family or patient seeks to transfer from one psychiatric facility to another
  • A Consent and Capacity Board, Ontario Review Board, or other board hearing is coming up for a relative and the family wants to understand the process and opportunities for involvement

We provide legal opinions on all matters involving consent and capacity in Ontario. We draft correspondence and negotiate on your behalf. Where appropriate, we provide “behind the scenes” advice to ensure the involvement of a lawyer does not interfere with important relationships. We advocate on your behalf at the Consent and Capacity Board, a tribunal dedicated to hearing matters relating to consent and capacity issues. Depending on the situation, we can assist you to become your loved one’s substitute decision-maker or guardian.

Most importantly, we listen to your concerns. We ensure that you understand the legal framework and make the decision that is the best one for you in the circumstances.


Consent, Capacity & Substitute Decision-making


Powers of Attorney

Travel Letters


Is it Legal to Force Medication on Someone?

JLM: A Consent and Capacity Board Decision Explained