Consent and Capacity Board (CCB) Hearings

In Ontario, the Consent and Capacity Board (CCB) is an independent government review panel that holds hearings to determine whether a patient meets the criteria for incapacity to treatment and/or involuntary hospitalization. The CCB is independent of the physician and the hospital, and is a quasi-judicial body. The CCB also maintains independence from the Ministry of Health and Long-Term Care.

If you are requesting the CCB to uphold a finding of incapacity for a patient's incapacity, you must then explain to the CCB which branch of the capacity test you believe the patient does not meet.

Example

“I am basing the finding of incapacity for the patient failing the first (understanding) [AND/OR] second (appreciation) branch of the capacity test.”

If you are requesting the CCB to continue an involuntary admission, you must explain to the CCB whether you are relying on Box A and/or Box B criteria (you can use one or both). The CCB also does have a right to consider whether the patient meets either criteria as well, independent of the physician (i.e. - the CCB may ask you questions to see if the patient meets other criteria based on available evidence, even if you do not bring it up yourself).

Example

Box A
“I am basing the involuntary admission under Box A criteria, [explain which Box A criteria is met].”

Example

Box B
“I am basing the involuntary admission under Box B criteria, [explain why each of the 6 criteria under Box B have been met].”

Improvement on PRN Medications? Are They Still Incapable or Involuntary?

What if someone has improved with just the use of PRN medications while waiting for a CCB hearing? While waiting for a CCB hearing, a patient who contests the finding of incapacity may not be treated involuntarily (with one exception). However, they may be given emergency PRN medications (e.g. - antipsychotics or benzodiazepines for psychosis) due to imminent safety concerns (harm to self or others). One can imagine if there is consistent and ongoing PRN use for this reason, it is actually indirectly treating the underlying mental disorder. Over time, the patient may improve, and the symptoms may abate by the time the hearing is held. In this case, this is important to state to the CCB if it is your clinical opinion that regular PRN use has led to this improvement (and that this improvement otherwise would not have occurred). It would be important to stress to the board that the patient's current presentation does not mean they do not have a mental disorder, but rather, that they have been treated partially with PRN medications, which led to the current improvement.

A question that is often asked of physicians by the board is what is the risk of one of the criteria in Box A (e.g. - harm to self, harm to others, serious physical impairment) or Box B (serious physical and/or mental deterioration) occurring if a patient were to either stop treatment or be made a voluntary patient. Although the burden of proof is on the physician, the physician does not need to provide beyond a reasonable doubt that one of these events could occur (e.g. - assaulting someone when untreated). The beyond a reasonable doubt standard of proof is exclusively used in criminal or quasi-criminal proceedings, which is not what CCB hearings are about.

The physician only needs to prove that on the balance of probabilities, an event could occur (this is a much lower threshold used in civil cases). This can be proved through collateral from family/friends, medical records, or from events during the hospital admission that supports the possibility of this event happening. The legal term balance of probabilities means there is a probable chance of the event happening (greater than 50%).

Example

Balance of Probabilities
“On the balance of probabilities, there is a likely and probable (i.e. - greater than 50%) chance of the patient [harming themselves/harming others/other criteria]”

Witnesses can be called by either party, but is more relevant for the physician. Typically, family members or close friends can be called to provide testimony to the board. The physician can ask questions of the family, including:

  • What symptoms of [mental disorder] is the patient exhibiting right now?
  • How has this illness affected the patient?
  • How has this illness affected you and the patient's family?
  • Why has it gotten this bad?
  • What is [patient] like when on medications?
    • Can you be more specific?
  • What are your concerns if [patient] does not complete treatment?