The people involved with Consent and Capacity Board (CCB) hearings fall into 5 main groups: parties, representatives, witnesses, panel members and observers
Parties
Parties are those who have the right to present evidence at a hearing and will usually be impacted by the outcome. Only parties are entitled to examine and copy all documents, including those in medical and other records, that will be used at the hearing. Parties often include:
- the patient
- the person responsible for authorizing admissions to the care facility or the doctor who treats the patient
- the substitute decision-makerSubstitute Decision-maker: A substitute decision-maker is someone who makes decisions on your behalf if you become incapable of making them yourself.
- any other person whom the CCB specifies. (See: 1996, c. 2, Sched. A, s. 54 (2))
Note: A person’s spouse, partner, parents, children and brothers and sisters are all automatically parties if a hearing is held to consider:
- the appointment of a representativeRepresentative: Someone to assume the decision making role. to consent to or refuse treatment, admission to a care facility or personal assistance services
- a request to change or end the appointment of a representative
- the appointment of a representative to control a patient’s personal health information
Representatives
At the CCB, the term representative has two meanings:
- Person who provides legal counsel (usually a lawyer or paralegal). This person is a legal representative.
- Person who has been appointed to make specific decisions about the patient’s treatment and care. This person is a representative decision-maker.
Your legal representative is present to take your instructions, give advice about the law and make arguments on your behalf. It may be a good idea to have a lawyer represent you but you do not have to have one. You may contact a lawyer on your own or through the Law Society of Upper Canada Lawyer Referral Service. If you are in a psychiatric facilityPsychiatric Facility: a treatment centre dedicated to inpatient and outpatient mental health treatment, you may also ask to speak with a rights adviserRights Advisor: person trained to give advice to patients about their legal rights when facing a finding of incapacity or treatment order. A rights adviser can explain your rights, help you to apply to the CCB, and help you find a lawyer. In some cases, the CCB may order that legal representation be set up for you before the hearing is scheduled. If you come to the hearing without a lawyer, the CCB may order legal representation to be set up for you.
Your representative decision-maker may be called to testifyTestify: making statements and answering questions under oath before the board if his or her decisions or ability to stand in for you are being reviewed.
Witnesses
In a CCB hearing, both sides have the right to bring people in who can help support their side of the story. Witnesses do not have the right to make arguments or review exhibitsExhibit(s): A document, object or anything else admitted as evidence by the panel. and must not be in the hearing room until it is their turn to speak. This is done to ensure that witnesses will not be influenced by other evidence. Witnesses are allowed to remain in the hearing room after giving evidence.
Panel Members
At the hearing there will be 3 panel members (1 lawyer, 1 psychiatrist, 1 community member) who will decide the case. These panel members are neutral and are not supposed to be swayed by emotion or allegiance to one side or the other. Their job is to consider the facts and arguments and apply them to the law. The panel may ask questions but it cannot help either side to make arguments.
Observers
The CCB encourages family members, partners and friends to attend the hearing, even if they are not parties to the hearing. Family members may be asked to give evidence or they may ask the Board for permission to speak.
The hearing is generally open to anyone who wishes to attend. Sometimes the CCB will order that the hearing be closed in order to protect privacy. If this happens, everyone except for the parties and their lawyers may be excluded from the hearing.