In my last blog, I described the Court’s expectation for confirming a finding of incapacity: namely, that compelling evidence is required to override the presumption of capacity. Such evidence may include corroborative information. However, the Court has warned assessors to be alive to the presence of improper motives of informants who seek to have another found to be without mental capacity.[i]

The Consent and Capacity Board (the “Board”) in Ontario is a quasi-judicial administrative tribunal which convenes hearings mostly relating to the Health Care Consent Act (“HCCA”) and the Mental Health Act (“MHA”). Both the HCCA and the MHA place the onus of proof on the health practitioner to prove the case at a Board Hearing. The standard of proof is on a balance of probabilities. The Board must be satisfied that the health practitioner’s onus has been discharged based on clear, cogent, and compelling evidence. There is no onus whatsoever on the patient. Hearsay evidence is admissible, but it must be carefully weighed.[ii] Corroborative evidence is required to satisfy a two-step test for incapacity pursuant to s. 14(1) of the Evidence Act. The Court of Appeal for Ontario has set out that, in an appropriate case, a physician’s evidence can be corroborated within the meaning of s. 14 by a patient’s own evidence.[iii]

For Board Hearings regarding patients with delusions, the patient’s evidence may need further corroboration from a family member to determine the presence of a mental health condition. As the Court described in Banton v. Banton (1998)[iv] at paragraph 62: “delusions are not limited to beliefs that are so bizarre that their content, by itself, evidences mental disorder. Such delusions include beliefs whose extreme improbability is apparent only when the surrounding facts are known. These are obviously the more difficult cases.”

The decision issued by the Board in DS (Re)[v] illustrates the value of corroborative information provided at Board Hearings and the challenge in evaluating capacity in cases where confirmation of delusions hinges on a discrepancy between the patient and a family informant. When previously hospitalized in 2021, DS was confined involuntarily under the MHA and deemed incapable to consent to treatment with antipsychotic medication. DS had a Board Hearing, at which time the finding of incapacity was upheld. DS was treated briefly in hospital and discharged but did not adhere to treatment post-discharge.

DS was readmitted in 2022 and again was confined involuntarily. Once again, DS was deemed incapable to consent to treatment and again appealed the finding to the Board. The attending physician’s argument in support of a finding of incapacity was on the test of ability to appreciate the reasonable foreseeable consequences of a decision or a lack of decision.

In its Reasons for Decision, the Board wrote that the evidence did not support the allegation that DS had assaulted the father, either in a provoked or unprovoked state, nor did the Board find that there was sufficient reliable information to draw the conclusion that DS’s allegations related to the father were without foundation or were the product of mental illness. Of note, the father did not testify at the Hearing. His hearsay evidence was presented by the attending physician.

The Board Chair wrote: “At the end of the day, I was left with more questions than answers in relation to this matter. It was my view that the doctor’s opinion was centred on a belief that whatever transpired in the family home between father and DS was as the father described it. The language used in the assessment of DS in my view did not consider the potentiality that anything reported by DS that was contrary to what father said, could have reasonably been true.”

The Board was not satisfied on the evidence in this case that DS assaulted the father, either in a provoked or unprovoked state. Further, the Board did not have enough reliable information to draw the conclusion that DS’s other allegations related to the father were without foundation, or were the product of mental illness. As the foundational facts for the opinion were not made out, the Board did not sustain the finding of incapacity.

In my clinical experience, the Board places higher value on factual evidence when presented through the direct testimony of family members, who are then open to cross examination. The attending physician is best able to provide evidence to the Board about the presence of a mental disorder and the potential consequences of treatment or not. Testifying at Board Hearings is of course potentially very stressful for family members, and may provoke more conflict with the patient. However, relying on hearsay evidence without direct testimony from informants may be insufficiently persuasive, as was what occurred in this case.

[i] Koch (Re), 1997 CanLII 12138 (ON SC)

[ii] 2021 CanLII 128871 (ON CCB)

[iii] Anten v. Bhalerao, 2013 ONCA 499

[iv] Banton v. Banton, 1998 CanLII 14926 (ON SC),

[v] 2022 CanLII 117009 (ON CCB)