Modified merit test for Consent and Capacity Board appeals

First stage (mandatory)

In the first stage a LAO staff lawyer will address whether there is sufficient legal merit to warrant the funding of the Consent and Capacity Board (CCB) appeal.

In assessing the sufficiency of merit, the LAO staff lawyer will consider whether the legal grounds of appeal have a reasonable likelihood of success, or whether the legal grounds have little or no chance of success. In determining likelihood of success, consideration will be given to the strength of the legal arguments that support the appeal (e.g. incorrect application of the law, misapprehension of evidence, etc.).

• The LAO staff lawyer should issue an appeal certificate if they conclude that the proposed grounds have a reasonable likelihood of success.
• Conversely, the LAO staff lawyer should not issue an appeal certificate if they are of the view that the appeal has no or little likelihood of success.

Second stage (if necessary)

The LAO staff lawyer should issue an appeal certificate if they conclude that there is less than a reasonable likelihood of success but that the decision itself constitutes a substantial interference with the rights of the patient.

In considering the personal consequences of the CCB decision, the LAO staff lawyer will focus on the impact of the board’s decision, medications or treatment at issue on the patient’s life, liberty and security of the person.

• The LAO staff lawyer should issue an appeal certificate if it concludes that there is less than a reasonable likelihood of success but that the decision itself constitutes a substantial interference with the rights of the patient.

In considering the systemic impact of the CCB decision, the LAO staff lawyer will focus on whether a successful appeal could potentially set a precedent that helps address wider institutional issues for psychiatric patients.

• The committee should issue an appeal certificate if it concludes that there is less than a reasonable likelihood of success but that the decision itself raises larger systemic issues affecting psychiatric patients that merit review by an appeal court.