Study Paper on Health Care Consent and Capacity Assessment Tribunals
BCLI Study Paper 12
CCEL Study Paper 10
142 Pages Posted: 23 Jul 2021
Date Written: April 2021
A finding of mental incapacity to give informed consent to health care, or to decide whether to accept or refuse admission to a care facility, results in a very significant loss of personal autonomy. A mature legal system must provide a readily accessible means to obtain review of a finding of incapacity by an independent decision-making body. This imperative has been accentuated by Canada’s ratification of the UN Convention on the Rights of Persons with Disabilities.
British Columbia once experimented with an administrative tribunal as a forum for review of decisions about mental capacity to consent to health care, and for resolution of disputes connected with substitute decision-making. The experiment was aborted well before reliable conclusions could be drawn about its merits.
At the present time, British Columbia nominally provides a mechanism for review of incapacity assessments, and of health care or care facility admission decisions of substitute decision makers, by application to the Supreme Court. In the course of the Canadian Centre for Elder Law’s project on Health Care Consent, Aging and Dementia: Mapping Law and Practice in British Columbia, it came to light that the court-based remedy is not utilized to any extent. In all likelihood, this is because it is inaccessible as a practical matter to most persons whose mental capacity is in question and their supporters.
A recommendation by the Advisory Committee on Health Care, Consent, Aging and Dementia called on government to consider the restoration of a non-court review mechanism, and for robust research to shed light on a model that would be appropriate for British Columbia.
This study paper is a response to that call for research. It examines existing tribunals in Canada and Australia that deal with mental capacity and consent to health care, and analyzes issues and considerations that would enter into the design of a tribunal suited to British Columbia. In so doing, the study paper lays groundwork for the public policy exercise that it is hoped will follow to bring a truly accessible non-court review mechanism into being in the health sector.
Keywords: mental capacity, Convention on Rights of Persons with Disabilities, court, tribunal, decision-making, health care
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