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Location: Consent and Capacity Board  > Policy Guidelines > Policy Guidelines No 2

Policy Guideline 2

March 31, 2022

Arranging Legal Counsel for a Person who is the subject of an Application


  1. Purpose:
    1.1 This Policy Guideline outlines the principles behind and the procedure for ordering Legal Aid Ontario to arrange a lawyer for a person who is the subject of an application.

  2. Legislation:
    2.1 Section 81(1) of the Health Care Consent Act, 1996 (HCCA) provides that if a person who is or may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service is a party to a proceeding before the Board, and does not have legal representation,

    1. ) the Board may direct Legal Aid Ontario to arrange for legal representation to be provided for the person; and
    2. ) the person shall be deemed to have capacity to retain and instruct counsel.

  3. General Principles:
    3.1 Parties, including those that are the subject of an application before the Board, have a constitutional right to retain their own counsel so that they can be represented by a lawyer, as affirmed by the courts.

    3.2 Parties also have a constitutional right, affirmed by the Courts, to represent themselves if they wish, regardless of whether or not they are likely to represent themselves effectively. The deemed capacity of a person to retain and instruct a lawyer is not a rebuttable presumption; the person is capable. The deemed capacity includes the right to represent oneself and to terminate existing representation.

    3.3 Hearings before the Board are to be procedurally fair. The duty of procedural fairness holds primacy over administrative efficiency to ensure a fair hearing. It may require that the hearing panel assist self-represented parties or take such other measures as many be necessary to promote a self-represented party's opportunity to be heard and right to participate in a fair hearing.

  4. Process:
    4.1 The Board will use the following procedures:

    4.2 When an application is received, the Registrar's Office will promptly issue an order directing Legal Aid Ontario to arrange for a lawyer for the person who is the subject of the application if a lawyer has not already been arranged .

    4.3 The subject of the application may nevertheless decline to be represented by the lawyer appointed by Legal Aid Ontario and may choose to self-represent or choose a different legal representative.

    4.4 The Registrar's Office cannot, subject to special authorization, issue an order under s. 81 of the HCCA for any party who is not the subject of an application, for example, a substitute decision-maker or a physician, evaluator or assessor. Further, the Registrar's Office cannot issue an order for amicus curiae (friend of the Board) .

    4.5 When the person who is the subject of an application chooses to self-represent, the hearing panel will:

    1. ) Advise the person of the nature of the hearing including the implications of the decision(s), and that Legal Aid Ontario will provide counsel at no cost. The panel should also explain the role of the Board and the parties, onus of proof, and briefly outline the hearing process.
    2. ) If the person chooses to proceed without legal representation, no further order for counsel will be made.

    4.6 A panel cannot, subject to Board approval, issue an order under s. 81 of the HCCA in respect of any party to its proceedings who is not the subject of an application, for example, a substitute decision maker. Except as set out in paragraph 5.1, the panel cannot issue an order directing Legal Aid Ontario to arrange for amicus curiae (friend of the Board).

    4.7 The Board has a duty to inquire into evidence relevant to the matter(s) before them. That duty creates an obligation on the hearing panel to take a proactive role during the course of the hearing when dealing with a self-represented party. In accordance with the Board's duty to inquire, the panel of the Board shall act in view of the following principles in any proceeding involving a self-represented party (particularly the subject of the application):

    1. ) Make the self-represented person aware of the nature of the proceedings to the extent possible.
    2. ) Explain the format of the hearing, the process of presenting evidence, and the basic principles of asking questions.
    3. ) Explain the role of the panel to the self-represented person.
    4. ) Instruct and assist the self-represented person throughout the hearing while ensuring fairness to the other parties.
    5. ) Accommodate the self-represented person's lack of familiarity with the process while respecting the rights of the other parties.
    6. ) Ask the self-represented person if they have any questions and encourage questions throughout the hearing where it is fair and appropriate to do so.
    7. ) Make reasonable efforts to ensure that the self-represented person is able to participate in the proceedings.

  5. Amicus Curiae (Friend of the Board):
    5.1 In accordance with the Board's duty to ensure that hearings are procedurally fair, the Board shall act in view of the following principles in any proceedings involving a self-represented person (particularly the subject of the application):

    1. ) As stated in section 4.6, a panel of the Board has no express statutory authority to issue an order for the appointment of amicus curiae, or friend of the Board. However, when the party that is the subject of an application decides to self-represent, the panel of the Board hearing the application may request that counsel appointed by Legal Aid Ontario remain for the hearing as amicus curiae to assist the Board in ensuring a procedurally fair hearing for a potentially vulnerable party (See Statutory Powers Procedure Act s.25.1.0 & CCB Rules of Practice, Rule 8).
    2. ) The panel of the Board shall define the role of amicus curiae's duties on a case by case basis. This may include informing the Board of some fact or circumstance of which the panel is unaware, examining witnesses, making submissions and advising the Board on a point of law.
    3. ) The scope of an amicus curiae's duties will depend on the scope of procedural fairness that is required in a particular hearing.

  6. Withdrawal from representation:
    6.1 Rule 2 of the Rules of Professional Conduct of the Law Society of Ontario require a lawyer not to withdraw from representation of a client except for good cause and upon notice to the client appropriate in the circumstances. A lawyer may not withdraw if serious prejudice to the client would result. In those cases, the Board may, in appropriate cases, request that counsel remain for the hearing as amicus curiae.

  7. Effective Date:
    7.1 This Policy Guideline is effective March 31, 2022.

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