Simon's Megalomaniacal Legal Resources

Mental Health - Health Care Consent Act (HCCA)

. Jawadi v. Maerov

In Jawadi v. Maerov (Ont CA, 2025) the Ontario Court of Appeal dismissed a further appeal, here brought against a dismissal of a first appeal to the Consent and Capacity Board.

Here the court outlines some HCCA CCB appeal procedures, and provisions regarding an 'independent rights adviser':

1. Was the appellant denied his statutory entitlement to rights advice?

[9] Section 18 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“the HCCA”) is a provision of general application that governs all health practitioners and applies to all proposed forms of medical treatment. It gives persons who have been found incapable in relation to a proposed form of treatment the right to apply to have the finding of incapacity reviewed by the Board. Section 18(3) of the HCCA provides that when a person first informs a health practitioner that they intend to apply to the Board, the health practitioner must not begin the proposed treatment for 48 hours. If the person makes an application to the Board, the health practitioner must postpone starting the proposed treatment until the application is either withdrawn or there has been a final disposition of the application and any subsequent appeals: HCCA, ss. 18(3)(b) to (d).

[10] However, the HCCA does not require patients to receive advice about their statutory right to apply to the Board from an independent “rights adviser”. This is a special procedural protection given to persons admitted to a psychiatric facility under the Mental Health Act, R.S.O. 1990, c. M.7 (“the MHA”) and its regulation, R.R.O. 1990, Reg. 741 (“Regulation 741”). The MHA and Regulation 741 require each designated psychiatric facility to have one or more “rights advisers”: see MHA, ss. 1, 80.2; Regulation 741, ss. 1, 14. Sections 15(1) and (2) of Regulation 741 then provide:

(1) If a person who has been admitted to a psychiatric facility as a patient is 14 years old or older and if the person’s attending physician proposes treatment of a mental disorder of the person and finds that the person is incapable with respect to the treatment within the meaning of the Health Care Consent Act, 1996, the attending physician shall ensure that,

(a) the person is promptly given a written notice indicating that he or she has been found by the attending physician to be incapable with respect to the treatment; and

(b) a rights adviser is promptly notified of the finding of incapacity.

(2) A rights adviser who is notified of a finding of incapacity shall promptly meet with the person who has been found incapable and shall explain to the person the significance of the finding and the right to apply to the Board under the Health Care Consent Act, 1996 for a review of the finding.

[11] Subsection 15(4) of Regulation 741 provides further that:

At the request of the person who has been found incapable, the rights adviser shall assist him or her in applying to the Board under the Health Care Consent Act, 1996 for a review of the finding and in obtaining legal services.

....

[16] The appellant and amicus argue that once Mr. Jawadi told Dr. Maerov that he intended to apply to the Board, this should be understood as triggering a further legal duty on Dr. Maerov’s part to arrange for Mr. Jawadi to receive fresh rights advice from a rights adviser within the 48-hour window under s. 18(3)(a) of the HCCA. Amicus acknowledges that Regulation 741 did not require Dr. Maerov to do this, but argues that this does not “foreclose a requirement of rights advice on [any] occasion that is needed.” Specifically, amicus contends that s. 18(3) of the HCCA should be interpreted as implicitly including this additional legal obligation. Amicus argues that this interpretation would better achieve the HCCA’s purposes, which include “enhanc[ing] the autonomy of persons for whom treatment is proposed … [by] allowing those who have been found to be incapable to apply to a tribunal for a review of the finding”: HCCA, s. 1(c)(i).

[17] The Board and the appeal judge both rejected this argument. The Board stated:

The legislation requires a single rights advice visit and there is no requirement to facilitate additional visits once completed. On the facts here, I was in no way persuaded that Dr. Maerov failed to meet any further obligation.

[18] Since the proper interpretation of s. 18(3) of the HCCA and s. 15 of Regulation 741 involve pure questions of law, the Board and the Superior Court’s conclusions on this issue are reviewable on a correctness standard: see e.g., Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; Naus v. Kennedy, 2025 ONCA 214, 175 O.R. (3d) 687, at para. 38.

....

[20] Amicus’s proposed interpretation of s. 18(3) of the HCCA is not supported by a textual analysis. The HCCA does not expressly address the provision of rights advice to persons who have been found incapable. It does not require patients to be informed of their rights by an independent rights adviser, nor does it require all health care facilities to have rights advisers on staff. Rather, these are special procedural protections given to patients in psychiatric facilities by the MHA and Regulation 741. The text of s. 18 of the HCCA cannot be read in its grammatical and ordinary sense as imposing a duty on all health practitioners to arrange for patients to receive advice about their rights from a rights adviser, since “rights adviser” is a defined term in the MHA, and only designated psychiatric facilities are required to have rights advisers on staff.

[21] Amicus’s proposed interpretation of s. 18(3) of the HCCA is also not supported by a contextual analysis, which requires the legislative scheme to be examined with the presumption that its different parts “are meant to work together ‘as parts of a functioning whole’ and form an internally consistent framework” (citations omitted): Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 28. The Ontario legislature evidently intended to give more extensive procedural protections to patients in psychiatric facilities, in recognition of their particular needs and vulnerabilities. In essence, amicus is seeking to expand the MHA’s rights advice scheme to fill a perceived gap. Whatever merits this proposed expansion might have as a matter of policy, it would be contrary to the overall structure of the legislative scheme to read expanded procedural protections for psychiatric patients into s. 18(3) of the HCCA, which is a provision of general application.

[22] Finally, the policy justifications for amicus’s proposed interpretation of s. 18(3) of the HCCA in tandem with s. 15 of Regulation 741 under the MHA are debatable. The main purposes of the rights advice scheme in s. 15 of Regulation 741 under the MHA are to ensure that psychiatric patients who have been found incapable with respect to a proposed treatment are made aware of their right to apply to the Board for a review of the finding of incapacity and, if they request assistance, to help them with the application process and/or with obtaining legal services. However, because psychiatric patients who have triggered the 48-hour window in s. 18(3)(a) of the HCCA do so by expressing their intention of applying to the Board, they do not need to be informed of their right to apply to the Board. While some of these patients might still need help preparing the Board application and/or obtaining legal services, s. 15(4) of Regulation 741 entitles them to request this assistance from a rights adviser. In essence, amicus seeks to require attending physicians to arrange a further meeting with a rights adviser even when, as in the appellant’s case, the patient has not requested any assistance. The legislators who enacted the HCCA and the MHA, as well as the drafters of Regulation 741, might reasonably have concluded that requiring this would place an undue burden on rights advisers.

[23] In this regard, it is of some significance that s. 15(6) of Regulation 741 expressly provides that psychiatric patients who have been found incapable with respect to a treatment of a mental disorder, and who have already received rights advice from a rights adviser under s. 15(2), are not entitled to receive further rights advice in relation to “any subsequent finding of incapacity made in respect of the person during his or her stay in the facility pursuant to that admission, whether the subsequent finding is made in relation to the same treatment or a different treatment”. Although s. 15(6) has no direct application in the appellant’s case, its existence supports the inference that the drafters of Regulation 741 were concerned about not overburdening rights advisers.

[24] In summary, I am not persuaded that s. 18(3) of the HCCA can be interpreted as amicus proposes. I accordingly agree with the Board and the Superior Court’s conclusion that the appellant was not denied his procedural rights under s. 18 of the HCCA and s. 15 of Regulation 741.