The Consent and Capacity Board (“Board”) in Ontario is a quasi-judicial administrative tribunal which operates at arm’s length from the Ministry of Health. The Board convenes hearings and makes decisions under six pieces of legislation, but most hearings relate to the Health Care Consent Act (HCCA) and the Mental Health Act (MHA). According to the Board’s website,[i] over 5,200 hearings were convened in the 2019/2020 fiscal year. Applications to the Board were mainly one of three types:
- 43% related to a review of involuntary status (involuntary patient of a psychiatric facility),
- 27% related to a review of a finding of incapacity (treatment, admission, or personal assistance services) and
- 25% related to a review of a Community Treatment Order.
Only 3% of hearings related to a review of a finding of incapacity to manage property.
Under both the HCCA and MHA, the onus of proof at a Board hearing is always on the health practitioner to prove the case. The standard of proof is on a balance of probabilities. The Board must be satisfied based on clear, cogent, and compelling evidence that the health practitioner’s onus has been discharged. There is no onus whatsoever on the patient. Hearsay evidence is admissible, but it must be carefully weighed.[ii]
The evidence provided by health care practitioners may not be sufficient in every case. As set out by the Court of Appeal for Ontario, corroborative evidence is required to satisfy a two-step test for incapacity pursuant to s. 14(1) of the Evidence Act.[iii] Therefore, the health practitioner may need to question witnesses during a Board hearing and direct their examination in chief and/or cross examination.
The role of a health practitioner as a party in a Board hearing contrasts sharply with their role as an expert witness in the Ontario Court. As an expert witness, the role of a health practitioner is to provide opinion evidence that is fair, objective, and non-partisan; to provide opinion evidence that is related only to matters that are within the health practitioner’s area of expertise; and to provide such additional assistance as the Court may reasonably require to determine a matter in issue. As an expert witness, the health practitioner’s duty to the court prevails over any obligation which the health practitioner may owe to any other party. The role of the health practitioner as an expert witness is therefore to assist the Court to understand medical evidence so that the Court, as the trier of fact, may draw conclusions and make a decision in law.
In contrast, the role of the health practitioner at a Board hearing is to provide sufficient clinical evidence to support his or her own conclusions regarding an issue in health law which is the subject of the hearing. The health practitioner’s role at the Board hearing is often more legal than clinical, and the health practitioner is at a disadvantage to the lawyer representing the patient (the Board mandates that patients have representation at Board hearings, and counsel is paid for by Legal Aid as needed). Health practitioners are often insufficiently familiar with legislation, relevant case law, and strategies for examination and cross-examination of witnesses. As such, there has been a movement towards health practitioners demanding hospitals provide legal representation at Board hearings, which in turn drives up hospital legal costs.
I suggest the differences between the roles of the health practitioner at a Board hearing and as an expert witness in court needs to be confronted to narrow the discrepancy in roles. Placing the onus of proof on the health practitioner at a Board hearing is flawed, particularly when corroborative evidence is required (health practitioners have no training in conducting hearings). In addition, Board tribunal members usually take the lead in directing the proceedings: they are permitted, and routinely, question the witnesses themselves and clearly set out what evidence they want to hear. In contrast, in court, the lawyers for each side take the lead in setting out their case and calling and questioning witnesses with limited interference from the judge. Health practitioners have no personal stake in “winning” a case. The motivation of the health practitioner at a Board hearing should be no different then when acting as an expert witness in a court proceeding: to truthfully assist the decision maker in reaching a legal determination of the issue at hand. Reform of the Board’s practice to address the role of the health practitioner at hearings is respectfully recommended.