Consent and Capacity Board: Draft Rules of Practice Submission
October 31, 2003
Mr. Doug Lewis
Consent and Capacity Board
Lewis, Downey, Tornosky & Lassaline
77 Coldwater St. East
Orillia, Ontario
L3V 1W6
Dear Mr. Lewis:
Re: Draft Rules of Practice and Practice Guidelines
Thank you for the opportunity to once again provide our comments regarding the proposed Rules of Practice and Guidelines. The Psychiatric Patient Advocate Office is an arm's-length program of the Ministry of Health and Long-Term Care with advocacy and rights advice offices in each of the current and divested provincial psychiatric facilities. We now also provide rights advice in 90% of the Schedule 1 facilities across the province. As such, we are very interested in the proposed rules.
We were pleased to note that the Board responded to our earlier submissions and removed a previous proposed rule requiring Rights Advisers to advise the Board where an "incapable" person was not represented by counsel (formerly Rule 6.4).
I have enclosed our written submissions on the draft rules and trust that our office will be advised of the dates for oral submissions once they have been arranged. I have also provided our letter regarding the scheduling directive for your information. If you have any questions regarding the enclosed please contact our legal counsel, Lora Patton at 416-327-7002 or me at 416-327-7000.
Sincerely,
Original Signed by
Vahe Kehyayan
Director
c.c.: Joaquin Zuckerberg, Legal Counsel to the
Consent and Capacity Board
Lora Patton, Legal
Counsel, PPAO
Submissions to the Consent and Capacity Board:
Draft Rules of Practice and Practice Directions
General Comments
The Psychiatric Patient Advocate Office is an arm's-length program of the Ministry of Health and Long-Term Care with advocacy and rights advice offices in each of the current and divested provincial psychiatric facilities. We now also provide rights advice in 90% of the Schedule 1 facilities across the province. As a consequence, we work very closely with the Consent and Capacity Board (the "Board") across the province.
While we have included a number of comments below regarding specific draft rules, we hope that any new initiatives will reflect the unique position of our clients. Those persons who are often the subject of Board hearings are remarkably vulnerable, are challenging or are responding to fundamental changes to their liberty or right to make choices. These clients are often not provided with a full and fair opportunity to have their voice heard in a number of different settings. We hope that the Board will ensure that any proposed rules and their implementation will reflect the inequities inherent in the system and ensure that the rules do not act as a further barrier to accessing justice. Engaging the consumer-survivor community in the consultation process and in the education process would have a tremendous impact.
An essential component to the implementation of such rules will be ensuring that all Members of the Board are fully educated on all elements of each: not simply the rule but the rationale, the issues to be considered in applying the rule and the consequences of such. Consistent and fair application is key to effective rules and the inappropriate interpretation, even in one region of the province, will have a profound impact on our clients.
Finally, the PPAO would like to recommend that the Board establish a formal review process to review its rules of practice on an annual basis, in consultation with stakeholders. This will allow the Board to be more responsive to issues identified by all parties and to ensure that any barriers that exist for the parties can be addressed and resolved as quickly as possible.
Rule 3 - Computation of Time - Application deemed received next business day if received after 4:00p.m.
The PPAO is unclear where authority exists to deem receipt of an application the day after it is actually received by the Board. While one can appreciate that this is more convenient administratively, the legislation has created a specific timeline in which the Board is required to hold a hearing. Further, the Board's recent interpretation of "promptly" vis-ŕ-vis rights advice has made clear that administrative process is not sufficient reason to alter the legislative requirements set out in the governing legislation. We would submit that the calculation of the seven-day period must not be calculated with a built-in administrative delay, simply for the convenience of the Board. Any delay in processing the application may result in the person being held by the state for an excessive period of time, which is a significant restriction on their liberties.
The PPAO similarly disagrees with the position that where an act must occur by a date that is not a business day, the act may be completed on the next business day. We concur with the submissions of the Mental Health Legal Committee in this regard. Again, such an interpretation of the legislation may result in a delay of hearing for our clients.
The PPAO recommends that time be calculated as determined by the Health Care Consent Act.
Rule 4.4 - Appointment of Counsel under Section 81 of the Health Care Consent Act
The PPAO would ask that in formalizing this authority in the Rules that additional guidance be given to stakeholders and Members through the commentary. In particular, stakeholders and Members should be provided with information regarding what issues will be considered before counsel is appointed. The patient should have the opportunity to argue against the appointment of counsel if he/she wishes to do so.
As we have discussed in the past with the Board, a number of our clients are very concerned about having counsel appointed. Many choose to represent themselves and see appointments as a way of silencing their position or preventing them from speaking to matters. Perhaps more significantly, appointments may have a serious financial impact on clients who may be forced to pay for the lawyers they choose not to hire or be placed on payment plans or lien agreements with legal aid. Such arrangements can have serious consequences in their family when spouses and other family members are unwilling to pay for "unnecessary proceedings". Our clients have reported fearing the reactions of abusive spouses or even well meaning family members. Unfortunately, this may prevent some clients from proceeding with a hearing at all as some will not be comfortable making a case to continue un-represented.
The PPAO recommends that clear guidelines be developed through stakeholder consultation to outline circumstances in which Board discretion should be exercised to appoint counsel against the wish of the affected person.
Rule 7 - Decision to Not Process Applications -- incomplete, late or "technical defect"
The PPAO is deeply concerned about how such a rule applies in the context of a client base that is extraordinarily vulnerable and who may need significant assistance in navigating what has become a highly technical and administratively complicated process. Such a rule may simply create additional, inappropriate barriers for our clients in accessing the Board. While the commentary suggests that such a rule would only be used sparingly, particularly as against our client group, there is no guarantee that such would be applied uniformly across the province.
It is easy to envision, for example, Rule 7.3 being used quite often to delay proceedings beyond the seven-day time frame where the application is seen as "incomplete". Not proceeding with the seven-day period within which a hearing must be held due to what may be technical deficiencies in applications completed by vulnerable persons may significantly impact on the time taken to determine issues of fundamental importance to our clients.
The PPAO submits that such a rule is thoroughly inappropriate in the context of this Board and suggests that it be removed.
Rule 8 - Dismissal of Application without Hearing
While the PPAO does not object to this rule in principle, particularly since the commentary creates a substantial process for this to be implemented, we do recommend that clear education be provided to Members on this matter with an emphasis for using such tools very rarely with our clients. The PPAO recommends that the decisions of the vice-chairs with respect to dismissal of applications without hearings be documented and reported on annually by the CCB.
Rule 9 - Notice of Withdrawal of Applications
In some regions of the province, the Board presently requires that a Rights Adviser witness withdrawals, confirming that the client has withdrawn the application freely and without undue influence from the treatment team. The Rights Adviser is then required to submit a Notice of Withdrawal Form to the CCB confirming this and providing their assessment with respect to the above issues. This is not required uniformly throughout the province.
The PPAO recommends that the Board standardize the involvement or non-involvement of Rights Advisers in the withdrawal process.
The PPAO is also concerned about the use of Form 5s and physician withdrawals to circumvent the Board process. Our office and the Board have noted in the past that clients will become voluntary immediately before the hearing only to become involuntary again shortly thereafter. We also recommend that the Board clearly state in the rules that it may proceed with an application, despite a Form 5 or finding of capacity where appropriate, particularly where it appears that the client will continue to remain in hospital.
The PPAO recommends that the CCB monitor the use of Form 5's and take corrective or appropriate action where it determines that the Form 5's are being used inappropriately and make such a role clear in the commentary to the rules.
Rule 10 - Notice of Hearings
The PPAO does not feel that it is necessary or appropriate to advise Rights Advisers of the hearing date. Rights Advisers have no involvement with the matter once the application is submitted to the Board.
Rule 12 - Motions
In formalizing the process around motions and other processes of the Board, our clients' access to justice decreases. A client representing him or herself would find the idea of a "notice of motion" (Rule 12.4) daunting. The process before the Board must maintain a level of informality to ensure our clients can proceed without counsel if they choose. Further, for those clients who choose to be represented by counsel, formalization will significantly increase the costs of proceeding. It is unclear that Legal Aid will increase the current cap on costs for such pre-hearing preparation.
Rules 13 and 14 - Case Management Conferences and Mediation
For the reasons stated above, the PPAO has serious concerns regarding the formalization of processes through case management and mediation. Such a process will significantly increase the costs to individuals represented by counsel. Further, it is quite possible that such processes will extend the time before matters can proceed to hearing, impairing our clients' ability to be heard within the legislated timeframe. Additionally, many clients will refuse to have their counsel speak with opposing counsel or their physician, leaving counsel in a difficult position with both the Board and their client. Finally, mediation has minimal value in an area of law that does not lend itself to creative problem solving - either a client meets involuntary criteria or they do not, they are incapable or they are not. Suggesting otherwise encourages non-compliance with strict legislative tests. The PPAO does not support the formalization of these processes through the rules and feels that the informal process currently employed is sufficient.
Rule 15 - Written and Electronic Hearings
The PPAO recommends that hearings proceed in person unless the patient requests or consents to an electronic hearing. Electronic hearings should never be used simply as a convenience to the Board or as a cost-saving measure given the clients served.
Rule 17 - Interpreters
The PPAO asks that the Board look into providing written reasons in the first language of the applicant, if requested, to ensure that once the hearing is complete, the person understands the result. Having a decision and reasons in the person's first language, if requested, gives them the best opportunity possible to understand the decision of the Board and the impact on their rights and freedoms.
Rule 21 - Adjournments
The PPAO recommends that the commentary to this rule specifically include the consideration of convening the hearing within the statutorily required seven days.
Rule 32 - Costs
The PPAO strongly opposes the creation of a rule that would permit the Board to order costs against parties to these proceedings. Such a rule would create a chilling effect, impacting severely on our clients and their comfort in proceeding.
Rule 33 - Amending Applications
While the amendment process allows for corrections to typographical and other minor mistakes, the PPAO would again encourage the Board to implement an internal review process to correct for obvious legal errors.
The PPAO also recommends that the decision forms that are employed by the Board clearly state the person's ability to appeal the decision to the Superior Court within 7 days.
