20. Authority to consent to a treatment on an incapable person’s behalf includes authority to consent to a treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment. 1992, c.31, s.20. Application to appoint representative, treatment delayed 21. If the incapable person indicates that he or she wishes to apply to the Board to appoint a representative to give or refuse consent to a treatment on his or her behalf, the health practitioner shall take reasonable steps to ensure that the treatment is not administered until, (a) forty-eight hours have elapsed since the incapable person indicated the wish without an application being made; or (b) the Board gives a decision in the matter and, (i) the appeal period elapses without an appeal being commenced, or (ii) an appeal of the Board’s decision is finally disposed of. 1992, c.31, s.21. Transition, representative 22. (1) Despite the repeal of section 3 of the Mental Health Act by subsection 20(7) of the Consent and Capacity Statute Law Amendment Act, 1992, this Act applies in respect of a representative whom a person appointed in accordance with section 3 of the Mental Health Act before the day this Act comes into force, as if the representative were the person’s attorney for personal care under a power of attorney that has not been validated under the Substitute Decisions Act, 1992. Limited authority (2) The authority conferred by subsection (1) to give or refuse consent on the person’s behalf is limited to treatment administered in a psychiatric facility. Revocation (3) The person may revoke the appointment in writing, if he or she is capable with respect to treatment administered in a psychiatric facility. 1992, c.31, s.22. Emergency Treatment of Incapable Persons Emergency treatment without consent 23. (1) Despite sections 4 and 21, a health practitioner may administer treatment to a person without consent if, in his or her opinion, (a) the person is incapable with respect to the treatment; (b) the person is experiencing severe suffering or is at risk, if the treatment is not administered promptly, of suffering serious bodily harm; and (c) it is not reasonably possible to obtain a consent or refusal on the person’s behalf, or the delay required to do so will prolong the suffering that the person is experiencing or will put the person at risk of suffering serious bodily harm. Same, pending application (2) When an application to the Board to review a finding of incapacity is intended or is pending, the health practitioner may administer the treatment to the person if, (a) consent is given by a person who will be entitled to give or refuse consent on the person’s behalf if the finding of incapacity is confirmed; and (b) the health practitioner is of the opinion that the person is experiencing severe suffering or is at risk, if the treatment is not administered promptly, of suffering serious bodily harm. Same (3) Despite section 21, when an application to the Board to appoint a representative to give or refuse consent to treatment is intended or is pending, subsection (2) applies, with necessary modifications. Examination (4) Despite sections 4 and 21, a health practitioner who is of the opinion that a person is incapable with respect to a treatment may conduct an examination of the person, including diagnostic procedures, without consent, if the examination and diagnostic procedures are reasonably necessary for the purpose of determining whether subsection (1), (2) or (3) applies to the treatment. Record (5) After administering treatment under subsection (1), (2) or (3), the health practitioner shall promptly note in the person’s record a statement setting out the opinion of the health practitioner that is required by subsection (1), (2) or (3). Continuing treatment (6) Treatment under subsection (1) may be continued for as long as is reasonably necessary to find a person who is authorized to give or refuse consent under section 17 and who is willing to assume the responsibility for giving or refusing consent. Search for authorized person (7) When treatment is administered under subsection (1), the health practitioner shall ensure that efforts are made and are continued for the purpose of finding a person who is authorized to give or refuse consent under section 17 and who is willing to assume the responsibility for giving or refusing consent. Return of capacity (8) If the person becomes capable, in the health practitioner’s opinion, with respect to treatment whose administration has begun under subsection (1), (2) or (3), the person’s own decision to give or refuse consent to the continuation of treatment governs. Person with guardian or attorney (9) Subsection (8) does not apply if the person has a guardian of the person appointed under the Substitute Decisions Act, 1992 who has authority to consent to the treatment, or an attorney for personal care under a power of attorney that confers that authority and has been validated under that Act. Admission to hospital, etc. (10) The authority to administer treatment under subsection (1), (2) or (3) includes authority to have the person admitted to a hospital or psychiatric facility for the purpose of the treatment, unless the person objects and the treatment is treatment of a mental disorder as defined in the Mental Health Act. Application of s. 9 (11) Section 9 does not apply to a treatment authorized by this section. 1992, c.31, s.23. No treatment contrary to wishes 24. A health practitioner shall not administer a treatment under section 23 if, (a) the health practitioner is informed by a person described in paragaraph 1, 2 or 3 of subsection 17(1) that the incapable person, while capable and after attaining sixteen years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment; or (b) the health practitioner has reasonable grounds to believe that the incapable person, while capable and after attaining sixteen years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment. 1992, c.31, s.24. Treatment despite refusal 25. If consent to a treatment is refused on behalf of an incapable person by a person who is authorized to give or refuse consent, other than a person described in paragraph 1, 2 or 3 of subsection 17(1), the health practitioner may administer the treatment despite the refusal if, (a) the health practitioner is of the opinion that the incapable person is experiencing severe suffering or is at risk, if the treatment is not administered promptly, of suffering serious bodily harm; and (b) the health practitioner is of the opinion that the person who refused consent did not comply with section 13. 1992, c.31, s.25. Protection from Liability Apparently valid consent 26. (1) If treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purposes of this Act, the health practitioner is not liable for administering the treatment without consent. Apparently valid refusal (2) If treatment is not administered to a person because of a refusal that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purposes of this Act, the health practitioner is not liable for failure to administer the treatment. Emergency treatment (3) A health practitioner who, in good faith, administers treatment to a person in accordance with section 23 or 25 or refrains from doing so in accordance with section 24 is not liable for administering the treatment without consent or for failure to administer the treatment, as the case may be. Reliance on statement (4) A health practitioner is entitled to rely on the accuracy of a statement made under subsection 17(11) (statement by family member), unless it is not reasonable to do so. 1992, c.31, s.26. Person making decision on another’s behalf 27. A person who gives or refuses consent to treatment on another person’s behalf, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent. 1992, c.31, s.27. Applications to Board Application for review of finding of incapacity 28. (1) A person may apply to the Board for review of a health practitioner’s finding that he or she is incapable with respect to a treatment. Parties (2) The parties to the application are: 1. The person. 2. The health practitioner. 3. Any other person whom the Board specifies. Power of Board (3) The Board may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner. Restriction on repeated applications (4) A person shall not make a new application within six months after the final disposition of an earlier application for review of a finding of incapacity with respect to the same or similar treatment unless the Board gives leave, in advance. Same (5) The Board may consent to the new application if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the person’s capacity. Exception (6) This section does not apply if the person has a guardian of the person appointed under the Substitute Decisions Act, 1992 who has authority to consent to the treatment, or an attorney for personal care under a power of attorney that confers that authority and has been validated under that Act. 1992, c.31, s.28. Application for appointment of representative 29. (1) A person who is sixteen years of age or more and who is incapable with respect to a treatment or a particular kind of treatment may apply to the Board to appoint a representative to give or refuse consent to the treatment. Application by proposed representative (2) A person who is sixteen years of age or more may apply to the Board to appoint him or her as the representative of a person who is incapable, with respect to a treatment or a particular kind of treatment, to give or refuse consent to the treatment. Parties (3) The following persons are parties to the application: 1. The person for whom it is proposed to appoint a representative. 2. The proposed representative named in the application. 3. Every person who is referred to in paragraph 4, 5, 6 or 7 of subsection 17(1). 4. Any other person whom the Board specifies. Criteria (4) The Board may appoint a representative for the incapable person if it is satisfied that the following conditions are met: 1. The person agrees to the appointment. 2. The representative consents to the appointment, is at least sixteen years of age and is capable with respect to the treatment. 3. The appointment is in the person’s best interests. Conditions (5) If the incapable person agrees, the Board may impose conditions on the appointment. Appointment of different person (6) If the incapable person agrees, the Board may appoint as representative a different person than the one named in the application. Exception (7) This section does not apply if the person has a guardian of the person appointed under the Substitute Decisions Act, 1992 who has authority to consent to the treatment, or an attorney for personal care under a power of attorney given under that Act that confers that authority. 1992, c.31, s.29. Application for directions 30. (1) A person who has assumed the responsibility for giving or refusing consent on behalf of a person who is incapable with respect to a treatment may apply to the Board for directions if the incapable person expressed a wish with respect to the treatment, but, (a) the wish is not clear; (b) it is not clear whether the wish is applicable to the circumstances; (c) it is not clear whether the wish was expressed while the incapable person was capable; or (d) it is not clear whether the wish was expressed after the incapable person attained sixteen years of age. Parties (2) The following persons are parties to the application: 1. The person seeking directions. 2. The incapable person. 3. The health practitioner who proposed the treatment. 4. Any other person whom the Board specifies. Directions, applicable principles (3) The Board may give directions to the applicant and, in doing so, shall apply the principles set out in section 13. 1992, c.31, s.30. Application to depart from wishes 31. (1) A person who has assumed the responsibility of giving or refusing consent on behalf of a person who is incapable with respect to a treatment may apply to the Board for permission to give consent to the treatment as subsection (3) authorizes, despite a wish with respect to the treatment that the incapable person expressed while capable and after attaining sixteen years of age. Parties (2) The following persons are parties to the application: 1. The person seeking permission. 2. The incapable person. 3. The health practitioner who proposed the treatment. 4. Any other person whom the Board specifies. Permission, criteria (3) The Board may give the applicant permission to consent to the treatment, despite a wish with respect to the treatment that the incapable person expressed while capable and after attaining sixteen years of age, if it is satisfied that the incapable person would probably, if capable, give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed. 1992, c.31, s.31. Application with respect to place of treatment 32. (1) A person may apply to the Board for a review of a decision to consent on the person’s behalf to the person’s admission to a hospital, psychiatric facility or health facility referred to in section 19 for the purpose of treatment. Parties (2) The following persons are parties to the application: 1. The person making the application. 2. The person who consented to the admission. 3. The health practitioner who proposed the treatment. 4. Any other person whom the Board specifies. Admission and treatment pending application (3) The decision to admit the person to the hospital, psychiatric facility or health facility may take effect, and the treatment may be administered, pending the determination of the application. Considerations (4) In reviewing the decision to admit the person to the hospital, psychiatric facility or health facility for the purpose of treatment, the Board shall consider, (a) whether the hospital, psychiatric facility or health facility can provide the treatment; (b) whether the hospital, psychiatric facility or health facility is the least restrictive setting in which the treatment can be administered; (c) whether the person’s needs could more appropriately be met if the treatment were administered in another place and whether space is available for the person in the other place; (d) the person’s views and wishes, if they can be reasonably ascertained; and (e) any other matter that the Board considers relevant. Order (5) The Board may, (a) direct that the person be discharged from the hospital, psychiatric facility or health facility; or (b) confirm the decision to admit the person to the hospital, psychiatric facility or health facility. 1992, c.31, s.32. Rights adviser 33. (1) In an application under section 30 or 31, the applicant shall ensure that a rights adviser receives a copy of the application and of any accompanying documentation when they are served on the parties. Meeting with rights adviser (2) Unless the incapable person is unconscious, the rights adviser shall meet with the incapable person and shall explain the significance of the application and the right to oppose the application. Refusal to meet (3) Subsection (2) does not apply if the incapable person refuses to meet with the rights adviser. Explanation (4) The rights adviser’s explanation is sufficient, even if the incapable person does not understand it, if it is made to the best of the rights adviser’s ability and in a manner that addresses the person’s special needs. Assistance (5) At the incapable person’s request, the rights adviser shall assist the person in obtaining legal services. 1992, c.31, s.33. Counsel for incapable person 34. (1) If a person who is or may be incapable with respect to a treatment is a party to a proceeding before the Board and does not have legal representation, (a) the Board may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and (b) the person shall be deemed to have capacity to retain and instruct counsel. Responsibility for legal fees (2) If legal representation is provided for a person in accordance with clause (1)(a) and no certificate is issued under the Legal Aid Act in connection with the proceeding, the person is responsible for the legal fees. 1992, c. 31, s. 34 (1, 2). Child in secure treatment program (3) If a child who has been admitted to a secure treatment program under section 124 of the Child and Family Services Act is a party to a proceeding before the Board, the Children’s Lawyer shall provide legal representation for the child unless the Children’s Lawyer is satisfied that another person will provide legal representation for the child. 1992, c. 31, s. 34 (3); 1994, c. 27, s. 43 (2). Consent and Capacity Review Board Consent and Capacity Review Board 35. (1) A board to be known as the Consent and Capacity Review Board in English and as Commission de révision du consentement et de la capacité in French is hereby established. Composition (2) The members of the Board shall be appointed by the Lieutenant Governor in Council. Term and reappointment (3) The members of the Board shall hold office for three-year terms and may be reappointed. Vacancies (4) If a member’s position becomes vacant, the Lieutenant Governor in Council may appoint a replacement to serve for the remainder of the member’s term. Remuneration and expenses (5) The members of the Board shall be paid the remuneration fixed by the Lieutenant Governor in Council and the reasonable expenses incurred in the course of their duties under this Act. 1992, c.31, s.35. Chair and vice-chairs 36. (1) The Lieutenant Governor in Council shall designate one of the members of the Board as chair and one or more others as vice-chairs. Role of chair (2) The chair is the chief administrative officer of the Board and has power to make rules governing the procedure before it. Role of vice-chair (3) If the chair is unable to act as such for any reason, the vice-chair (if there are two or more vice-chairs, the one whom the chair designates to replace him or her or, in the absence of a designation, the one who was appointed to the Board first) shall act in the chair’s place. Same (4) A vice-chair also has the powers and duties that the chair delegates to him or her in writing. 1992, c.31, s.36. Staff 37. (1) Such employees as are necessary for the proper conduct of the Board’s work may be appointed under the Public Service Act. Government services and facilities (2) The Board shall, if appropriate, use the services and facilities of a ministry or agency of the Government of Ontario. 1992, c.31, s.37. Panels 38. (1) The chair shall assign the members of the Board to sit in panels of three or five members to deal with particular cases. Who presides (2) The chair shall designate one member of each panel to preside over hearings conducted by the panel. Expertise in evaluating capacity (3) At least one of the members of a panel that is assigned to deal with a case involving capacity shall be a person with expertise in evaluating capacity. Quorum (4) A majority of the members of a panel constitutes a quorum. Same (5) If the panel is assigned to deal with a case involving capacity, a member with expertise in evaluating capacity is required to make up the quorum. Decision of panel is Board’s decision (6) The decision of a majority of the members of a panel is a decision of the Board. 1992, c.31, s.38. Time and place for hearing 39. (1) When the Board receives an application, it shall promptly fix a time and place for a hearing and notify the parties of them. Seven-day period (2) The hearing shall begin within seven days after the day the Board receives notice of the proceeding, unless the parties agree to a postponement. Decision and reasons (3) The Board shall render its decision within one day after the end of the hearing and shall provide written reasons to the parties within two days after rendering the decision. 1992, c.31, s.39. Examination of evidence 40. (1) Before the hearing, the parties shall be given an opportunity to examine and copy any documentary evidence that will be produced or any report whose contents will be given in evidence. Health record (2) Subject to subsections 35(6) and (7) of the Mental Health Act (withholding clinical record) and subsections 183(2) to (6) of the Child and Family Services Act (withholding record of mental disorder), the following persons are entitled to examine and to copy, at their own expense, any medical or other health record prepared in respect of a party: 1. If the party in respect of whom the record was prepared is at least sixteen years of age and capable, the party and his or her counsel or agent. 2. If the party in respect of whom the record was prepared is less than sixteen years of age or is incapable, the party’s counsel or agent. Same (3) Nothing in paragraph 2 of subsection (2) prevents the counsel or agent from disclosing the record to the party. 1992, c.31, s.40. Communication re subject-matter of hearing 41. (1) The members of the Board conducting a hearing shall not communicate directly or indirectly in relation to the subject-matter of the hearing with any party, counsel, agent or other person, unless all the parties and their counsel or agents receive notice and have an opportunity to participate. Exception (2) However, the members of the Board conducting the hearing may seek advice from an adviser independent of the parties, and in that case the nature of the advice shall be communicated to them so that they may make submissions as to the law. Only members at hearing to participate in decision (3) No member of the Board shall participate in a decision unless he or she was present throughout the hearing and heard the parties’ evidence and argument; except with the parties’ consent, no decision shall be rendered unless all the members so present participate in it. 1992, c.31, s.41. Release of documentary evidence 42. (1) Within a reasonable time after the final disposition of the proceeding, documents and things put in evidence at the hearing shall, on request, be released to the person who produced them. Return of clinical record (2) If an original clinical record as defined in subsection 35(1) of the Mental Health Act was put in evidence, it shall be returned to the psychiatric facility as soon as possible after the final disposition of the proceeding. 1992, c.31, s.42. Disqualification 43. (1) A member of the Board shall not take part in the hearing of a matter that concerns a person who is or was the member’s patient or client. Same (2) A member of the Board who is an officer or employee of a hospital or other health care or residential facility or has a direct financial interest in such a facility shall not take part in the hearing of a matter that concerns a person who is or was a patient or resident of the facility. 1992, c.31, s.43. Appeal 44. (1) A party to a proceeding before the Board may appeal the Board’s decision to the court on a question of law or fact or both. Time for filing notice of appeal (2) The appellant’s notice of appeal shall be filed, with proof of service, within seven days after he or she receives the Board’s written reasons for its decision. Notice to Board (3) The appellant shall give a copy of the notice of appeal to the Board. Record (4) The Board shall promptly file with the court the record of the proceeding before the Board, including a transcript of the oral evidence given at the hearing. Extension of time (5) The court may extend the time for filing the notice of appeal, even after the time has expired. Early date for appeal (6) The court shall fix for the hearing of the appeal the earliest date that is compatible with its just disposition. Appeal on the record, exception (7) The court shall hear the appeal on the record, but may receive new or additional evidence as it considers just. Powers of court on appeal (8) On the appeal, the court may, (a) exercise all the powers of the Board; (b) substitute its opinion for that of a health practitioner or for that of the Board; (c) refer the matter back to the Board, with directions, for rehearing in whole or in part. 1992, c.31, s.44. Order authorizing treatment pending appeal 45. (1) In the case of an appeal from a decision that would have the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite subsections 9(11) and (12) and section 21, if the court so orders and the consent is given. Criteria (2) The court may make the order only if it is satisfied that, (a) the person’s condition will be or is likely to be substantially improved by the treatment; (b) the person’s condition will not improve or is not likely to improve without the treatment; (c) the anticipated benefit from the treatment outweighs the risk of harm to the person; (d) the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a), (b) and (c); and (e) the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal. 1992, c.31, s.45. Miscellaneous Offence: obstruction 46. (1) No person shall hinder or obstruct a rights adviser who is meeting with a person in accordance with section 9 or 33, or is seeking to do so. Exception (2) Subsection (1) does not apply to the person with whom the rights adviser is meeting or seeking to meet. Penalty (3) A person who contravenes subsection (1) is guilty of an offence and is liable, on conviction, to a fine not exceeding $5,000. 1992, c.31, s.46. Offence: false statement 47. (1) No person shall, in a statement made under subsection 17(11) (statement by family member), assert something that he or she knows to be untrue. Same (2) No person shall, in a statement about wishes someone has expressed with respect to treatment, assert something that the person knows to be untrue or profess an opinion that the person does not hold. Penalty (3) A person who contravenes subsection (1) or (2) is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000. 1992, c.31, s.47. Regulations 48. (1) The Lieutenant Governor in Council may make regulations, (a) prescribing categories of persons for the purpose of the definition of “health practitioner” in subsection 1(1); (b) prescribing categories of persons for the purpose of the definition of “rights adviser” in subsection 1(1) and prescribing the circumstances in which persons in a prescribed category may act as rights advisers; (c) prescribing things that do not constitute treatment for the purpose of the definition of “treatment” in subsection 1(1); (d) prescribing forms for the purpose of subsection 5(4) (consent to treatment) with respect to specified treatments and circumstances, and specifying the treatments and circumstances; (e) prescribing the form of a notice under subsection 9(2) or (3); (f) prescribing other forms; (g) prescribing criteria to be applied and standards and procedures to be followed by health practitioners in determining capacity; (h) prescribing controlled acts within the meaning of subsection 27(2) of the Regulated Health Professions Act, 1991 in respect of which notice is not required under subsection 9(3) or clause 9(4)(b); (i) prescribing health facilities for the purpose of subsection 19(1); (j) establishing minimum qualifications, standards, procedures and a code of conduct for rights advisers; (k) establishing a review procedure for dealing with complaints from any person relating to rights advisers; (l) establishing training programs for rights advisers. Rights advisers (2) A regulation made under clause (1)(j), (k) or (l) does not apply to a rights adviser who is authorized under the Advocacy Act, 1992 to provide advocacy services on behalf of the Advocacy Commission. Review procedure (3) The Ministry of Health shall provide written information about the review procedure established under clause (1)(k) to any person who requests it. 1992, c.31, s.48. Conflict with Child and Family Services Act 49. (1) If a provision of this Act conflicts with a provision of the Child and Family Services Act, the provision of the Child and Family Services Act prevails. Repeal *(2) Subsection (1) is repealed on the third anniversary of the day this Act receives Royal Assent. 1992, c.31, s.49. Transition 50. (1) This Act applies in respect of a treatment that is begun after the day this Act comes into force, even if a finding as to capacity was made or consent was given before that day. Same (2) This Act does not apply in respect of a treatment that is begun on or before the day this Act comes into force. 1992, c.31, s.50. Commencement **51. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor. 1992, c.31, s.51. *Note: This Act received Royal Assent on the 10th day of December, 1992. **Note: Sections 35, 36 and 37 were proclaimed into force on July 27, 1994. Sections 1 to 34 and 38 to 52 were proclaimed into force on April 3, 1995. ______________ Français