Information for lawyers

Questions and answers: Re‑introduction of merit consideration for Consent and Capacity Board appeals

When was this decision made and who was consulted?

In February 2017, LAO determined that it would re-introduce merit consideration for Consent and Capacity Board (CCB) appeals. At that time, both LAO decision-makers and external decision-makers were advised that LAO would develop a modified merit test for CCB appeals that would reflect the particular needs and vulnerabilities of mental health patients. Key stakeholders, including the Law and Mental Disorder Association and Mental Health Law Committee, were involved in the development of the new test.

What is the new merit test?

The new test will have two stages of merit assessment: the first stage of analysis is mandatory and requires the area committees (ACs) to consider the reasonable likelihood of success based on the strength of the legal argument put forward by counsel in their opinion letter. In the event that the AC finds that there is not a reasonable likelihood of success, but there is still some merit to the appeal, the ACs should give further consideration to the personal impact of the decision for the client and/or whether or not the appeal will work to address wider systemic or institutional issues. For a detailed understanding of the new merit test, please see the merit test document attached.

Will the process for applying for funding of a CCB appeal change?

The current process of lawyers submitting their opinion letters to their local LAO district office for AC review remains the same. LAO would also like to clarify that the re-introduction of merit only applies to CCB appeals. Ontario Review Board appeals are still being funded without merit consideration.

Will there be any changes to my billing?

The billing for a CCB appeal, as well as for the drafting of an opinion letter, remains the same. Also, the CCB hearing lawyer will still be able to add up to one hour to their hearing time to review the decision and the right of appeal with their client.

Will the introduction of merit testing slow down the processing of an appeal application?

LAO will work to ensure that the processing of appeals continues to operate efficiently and expediently so that appeals are not unduly delayed by merit consideration. LAO is also developing a CCB appeal guide to support ACs and panel lawyers in their assessment of merit.