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The Globe and Mail

Ontario Consent and Capacity Board a neutral arbiter in complex disputes

Mark Handelman was setting the table for a New Year's Eve dinner at his home in 2006 when the phone rang.

It was an administrator from Ontario's Consent and Capacity Board, notifying Mr. Handelman – a veteran member of the board – of an emergency right-to-life hearing that had to be held immediately at a Mississauga hospital.

Minutes later, Mr. Handelman drove to the hospital, where he listened to family members war over the treatment of a man who was effectively brain-dead.

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"Some of them felt it was time for dad to die," he said. "Others said, no, he's not ready yet."

Mr. Handelman selected the one he felt was most likely to reflect the dying man's wishes .

"As my guests sat down to dinner that night, I was wrapping up the hearing," said Mr. Handelman, who has since left the board and litigates cases on behalf of patients or doctors.

The board – which has no equivalent outside Ontario – acts as a neutral arbiter in cases where a person is incapable because of psychiatric incapacity or a state of unconsciousness.

It has more than 100 members, who generally hear cases individually or in panels of three. One-third of its members are lawyers, another third are psychiatrists and the rest are community members. They weigh medical opinion and submissions from family members, and assess any wishes a now-incapable patient may have previously expressed verbally, by letter or through power of attorney.

"Every single case the board hears determines at least one very fundamental right of a human being – whether they can keep you locked up in a mental-health facility; who should be making your health-care decisions; whether you have to go into a nursing home; or whether the plug can be pulled on you," Mr. Handelman said.

Currently, disputes in other provinces between intensive-care doctors and the families of patients in vegetative states end up in the courts.

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"Doctors often get their way because families don't have the resources to litigate," Mr. Handelman said.

In contrast to the court system, where decisions can take months or years, the board moves with lightning speed. "Hearings usually take place within seven days, and you get a decision the next day," Mr. Handelman said. "That is unheard of in law."

In deliberating over the Rasouli right-to-life case, the Supreme Court of Canada is expected to give strong consideration to recommending the creation of similar bodies in other provinces.

Mr. Handelman said the court would also be wise to give hospitals a prod to ask patients before surgery how they would want to be treated if anything goes terribly wrong.

"Doctors say they don't want to scare the hell out of somebody before they cut their head open," he said. "My response is, they're absolutely right. But as part of admission procedures, [patients] should have to talk to an ethicist, a chaplain, or whoever about what [their] end-of-life wishes are."

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