I recently attended a Continuing Legal Education Program (“CLE”) called the Annotated Guardianship Application and was very interested in one lecturer’s comments about clients seeking to bring guardianship applications with respect to a child or family member who suffers from an eating disorders or substance abuse problem.
One ordinarily thinks of such applications being brought for elderly people with Alzheimer’s Disease or other forms of serious mental incapacity. However, some exasperated and frightened parents may consider a guardianship application to get their children into treatment.
It is very common for people suffering from eating disorders to refuse medical treatment. A U.S. organization called the National Eating Disorders Association has stated that "legal interventions, including involuntary hospitalization and legal guardianship, may be necessary to address the safety of treatment-reluctant patients whose general medical conditions are life threatening."
The lecturer at the CLE noted that the use of the guardianship process in these circumstances is usually a bad idea; the applications are expensive, and people suffering from these conditions usually have fluctuating capacity. Thus, even if the applicant is successful in obtaining guardianship and placing the person into treatment, the treatment will usually result in that person regaining sufficient capacity, at which time they would be entitled to make their own choices – even if those choices resulted in a relapse.
A better option for parents in these cases may be to apply to the Ontario Consent and Capacity Board ("OCCB") under s.51(2) of the Health Care Consent Act (“HCCA”) to be appointed the individual’s representative so they can make decisions on their child’s behalf about entering into a treatment facility. The OCCB is a quasi-judicial tribunal created under the HCCA. It deals with issues of capacity, consent, substitute decision making and mental health.
Under the HCCA there is no defined minimum age of consent – thus people under 18 should be assessed like an adult with respect to their ability to consent to medical treatment. However, there may still be a presumption that after 16, the individual may be treated like an adult.
The test for capacity is found in s.4(1) of the HCCA:
A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
After a review of some of the relevant decisions of the OCCB, it appears that there are cases where the Board has found young adults suffering from eating disorders to be incapable of consenting to treatment. One case which provides a thorough analysis of the factors considered by the OCCB can be found here.
Thanks for reading.
Moira Visoiu – Click here for more information on Moira Visoiu.