I have a substitute decision maker and I want to be the one to take decisions over my medications. How can I become the

Hello – My name is ***** ***** I’m happy to assist you today. I am an Ontario lawyer who is able to answer mental health law questions.

Can you tell me who made the finding that you were incapable to make decisions regarding your treatment and how long ago this decision was made ?

Hi - I am following up to see if you still need my assistance with your question since I have not heard back from you .

Thanks

Hello again - When did he do this capacity assessment ?

I see - If you do not agree with this finding, you can appeal this decision to the Consent and Capacity Board by completing a Form A Application to the Board to Review a Finding of Incapacity. The Board will schedule a video hearing for you ( due to COVID 19). You have the right to be represented by a lawyer for this hearing. If you financially qualify, you may be able to get a Legal Aid certificate for the hearing.

Here is the link to the Board's website which has the Form A

http://www.ccboard.on.ca/scripts/english/forms/index.asp

The Board has the authority to overturn the finding of incapacity after hearing all of the evidence you present.

The Board is impartial and will hear the evidence of both the doctor and yourself to make a decision.

You are very welcome.

It is very important to understand the legal test for capacity for treatment under section 4(1) of the Health Care Consent Act of Ontario and that under section 4(2 it states a person is presumed to be capable .

Therefore, at the hearing before the Consent and Capacity Board, your doctor has the responsibility to prove that this presumption of capacity should be reversed because you do not meet the capacity test stated in section 4(1).

Section 4(1) states that a person is capable with respect to a treatment if the person is able to understand the information that is relevant to making a decision about the treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

At the hearing, the members of the CCB will ask you questions about your understanding of your treatment to assess if you are able to appreciate this information. What this means is that you do not necessarily have to agree with the treatment but that you have weighed the information given to you about your treatment. It is this ability to evaluate the information which is key to being found capable.

The members of the CCB are experienced in asking questions to make their own decision about whether or not you are capable so it may be a good idea for you to give oral evidence at the hearing so that the members of the CCB panel can make this decision.

Hope this helps.

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