A BRIEF INTRODUCTION TO PRACTICE BEFORE THE CONSENT AND CAPACITY BOARD
By Eyitayo Dada LL.B LLM BL
This is not meant to be an extensive discourse of practice before the Consent and Capacity Board (the ‘Board’). It is an introduction or, eye-opener for individuals who are interested in exploring this field of practice. The Board is an independent, provisional tribunal with the mission of “giving fair and accessible adjudication of consent and capacity issues, balancing the rights of vulnerable individuals with public safety”.
For anybody considering representing clients before the Board it is extremely important to understand the nature of the cases and clientele that come before this tribunal. They may not be your everyday client that walks into your office and lays out their case, giving you all the information that you need to proceed with that case.
WHO IS YOUR CLIENT?
Your client is likely to be someone who is suffering from a mental illness or, psychiatric disorder. If they are in need of representation before the Board, they are probably in a battle to protect their legal rights where they are pitted against the “mental health system”. This could include but is not limited to doctors, nurses, hospital administration, other health care providers and sometimes their own families. In many circumstances, their families may not agree with the decisions and direction that member wishes to take in respect to his/her mental health treatment and/or, their desire to leave a psychiatric facility.
It is very important to always remember who you are representing. You are not representing the doctor, the hospital, any healthcare professional or, the family. You are representing that individual. So, be mindful not to get your role confused or, convoluted.
Rule 3.2-9 of the Law Society of Upper Canada Rules of Professional Conduct deals with representing a client with diminished capacity and provides as follows, “When a client’s ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible maintain a normal lawyer and client relationship”.
One of the difficulties that arise in this area of practice is that more often than not, your client’s wishes will differ from what may be in their best interest. These could be from a therapeutic or clinical perspective and even from your perspective. You must remember therefore, that you are providing client instructed advocacy. It is your duty and responsibility to adhere to your client’s instructions even when you believe it may not be in their best interest. Often this comes about when a decision needs to be made, as to whether or not your client should testify at their hearing. You may be of the opinion that it is in your client’s best interest not to testify but, your client instructs you that he or she would like to testify. Certainly, be mindful of the fact that the onus is completely on the doctor to prove his/her case and as counsel, you must avoid being critical of your client’s decisions even when you think they are not reasonable.
THE CLIENT INTERVIEW
When you have been retained by your client, one of the first things you need to do is meet with and interview him/her. At this time, your perception of mental illness and the mentally ill will definitely come into play. As such, if you are afraid that the individual will hurt or harm you, you will be apprehensive and will not be able to conduct a proper and effective interview. It is ideal and preferred for you to meet with your client and get their perspective of what is going on before you review the doctors’ opinions or findings in the medical records. Some of your clients will be able to articulate their position and their situation eloquently; others may not be able to and will present a rather convoluted state of affairs. Woven together will be reality, delusions and hallucinations from which you must try your best to decipher their situation and what has been going on.
Most of us as counsel are used to “demanding” disclosure from opposing counsel or their clients. In most Consent and Capacity Board matters your disclosure will consist of the medical records of your client which you get from the various psychiatric facilities. Being that these facilities have a different process for the release of medical records, it is the responsibility of counsel to find out the procedure from the relevant facility. Under Section 76 of the Health Care and Consent Act , there is an obligation for disclosure of medical or health records that are to be used before the Board. It is understood that due to the timelines involved in Board hearings, usually 7 days, counsel may not be able to get consent from the patient. It is imperative, however, that as counsel you are provided with immediate access to the client’s complete file. This will facilitate proper preparation and allow you to properly represent the client before the Board. For more information on this aspect of disclosure visit the CCB (Consent and Capacity Board) website at ccboard.on.ca
COMPETENCE TO INSTRUCT COUNSEL
In this area of law, you do not have to worry about your client’s competence to instruct you as counsel. By provisions of Section 81.(1) (b) of the Health Care and Consent Act, your client is deemed competent to instruct counsel in the context of their application before the Board; where the determination of the client’s capacity is an issue before the Board. Issues before the Board could comprise of challenges of individual’s involuntary status, a finding of incapacity, and placement on a community treatment order (CTO), amongst others.
It is critical for anyone that wants to pursue practice in this field to have some understanding of mental illness, the pressures that people with serious mental illness face, and the psycho-social stresses the individual might be going through. As in all areas of the law, it is critical to educate yourself and understand some of the myths and realities that surround mental illness. Some of the myths include, but are not limited to:
1. People who are mentally ill are dangerous;
2. All suicidal individuals are mentally ill;
3. Suicide is always the act of a psychotic person;
4. Low income persons tend to develop mental illness more often than middle class
Some understanding of the different types of mental illnesses, their symptoms, and treatment will be a definite asset. Broadly, you may come across people that suffer from schizophrenia, mood disorders, such as major depressive disorder, bipolar disorder, seasonal affective disorder, personality disorder, anxiety disorders, and post-traumatic stress disorders.
Always remember that when you agree to represent a client who is facing a restriction or, loss of liberty, autonomy, other infringement of basic civil, or legal rights because of mental illness,refer to your duty under Rule 4.01(1) of the LSUC Rules of Professional Conduct , that state, “when acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect.” Observe also, the commentary under the Rule which provides in part that “the lawyer has a duty to the client to raise fearlessly every issue advance every argument and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defense authorized by law…”
Before you step into the world of Consent and Capacity Board Hearings, it is imperative that you review the legislative regimen, which includes the Mental Health Act, the Health Care Consent Act, and the Substitute Decisions Act. Other valuable resources include, the text “A Guide to Consent and Capacity Law in Ontario” by D’Arcy Hiltz and Anita Szigeti, the Board website, public legal pamphlets available from Community Legal Education Ontario and Advocacy Centre for the Elderly, and patients’ rights brochures available from the Psychiatric Patient Advocate Office.
Eyitayo Dada is a private legal practitioner in Toronto.
She was called to the Nigerian Bar in 1985 and the Canadian Bar in 2011.
She is a member of the Mental Health Legal Committee.
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