The Patient's Lawyer: Protecting Legal Rights, Not Making Medical Decisions
- Melissa K. A. Lukings
- 2 days ago
- 6 min read
Updated: 8 hours ago
Melissa Lukings, JD, BA
Barrister, Solicitor, and Notary Public
Lukings Law / CARE Law Collective
Thursday, July 30, 2026
"Why are you trying to stop the doctors from treating them?"
"Do you really think they should be allowed to leave the hospital?"
"Why can't you just tell them to do what the doctor says?"
These are questions that lawyers representing patients before Ontario's Consent and Capacity Board (CCB) hear from time to time. They reflect a common misconception about what a patient's lawyer is actually there to do.
A patient's lawyer is not a member of the treatment team.
The lawyer's job is not to decide whether someone should receive treatment or remain in hospital.
The lawyer's job is to protect the patient's legal rights and advocate for the patient's lawful instructions within the bounds of the law.
Understanding that distinction is essential to understanding how the Consent and Capacity Board functions.
The Lawyer Does Not Decide Whether the Patient Receives Treatment or Leaves the Hospital
When a patient is found capable of making treatment decisions or is released following a successful CCB hearing, people sometimes conclude that the patient's lawyer "made it happen."
That is a misunderstanding of how the process works.
The patient's lawyer does not decide whether a patient remains an involuntary patient.
The patient's lawyer does not decide whether a patient is capable of making treatment decisions.
The patient's lawyer does not decide whether a Community Treatment Order should continue.
The patient's lawyer does not decide whether a patient receives psychiatric treatment.
Those decisions belong to others.
Treatment decisions, including involuntary admission, are made in accordance with the Mental Health Act and the Health Care Consent Act.
Clinical decisions are made by the treating physician and healthcare team.
Legal determinations are made by the Consent and Capacity Board.
The patient lawyer's role is different.
The Lawyer's Duty is to the Patient
Every lawyer in Ontario is governed by the Law Society of Ontario's Rules of Professional Conduct.
Rule 5.1-1 provides:
"When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect."
The commentary explains that lawyers are expected to present their client's case as effectively as possible within the bounds of the law.
"In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law."
This is not merely good practice.
It is a professional obligation.
A patient's lawyer therefore acts in accordance with the client's lawful instructions.
The lawyer's personal opinion about what outcome might be best is irrelevant to that obligation.
Nor may the lawyer substitute the wishes of family members, friends, or the treatment team for the client's lawful instructions.
The lawyer's duty is owed to the client.
What Does the Patient's Lawyer Actually Do?
Much of a patient's lawyer's work at a CCB hearing consists of asking questions.
Those questions are not intended to interfere with medical care.
They are not intended to frustrate treatment.
They are not intended to create technical obstacles.
They are intended to ensure that the legal requirements established by the Ontario Legislature have been satisfied before a person's liberty, autonomy, or right to make their own treatment decisions is restricted.
Depending on the issues before the Board, a patient's lawyer may ask questions such as:
Did the physician apply the correct legal test?
Have all of the statutory criteria actually been established?
Did the treatment team comply with the requirements of the Mental Health Act and the Health Care Consent Act?
Were the required statutory forms properly completed?
Was the appropriate substitute decision-maker consulted where the legislation required it?
Were the patient's procedural rights respected?
Is there evidence supporting every element that the physician must prove?
Are there inconsistencies or gaps in the evidence?
These are legal questions.
They are not medical opinions.
The lawyer's responsibility is to carefully test the evidence, identify legal or procedural deficiencies where they exist, and ensure that the legislation has been followed.
If the treatment team has complied with the legislation and the physician establishes the statutory criteria on the evidence, then the Board may uphold the physician's position.
If the physician does not establish those criteria, the Board must apply the law accordingly.
That is exactly how the legal process is intended to function.
The Physician Bears the Burden of Proof
One of the most important principles in Ontario's mental health legislation is that the patient does not have to prove that they should be released from hospital or found capable.
The burden rests with the attending physician.
In Ontario, every adult is presumed capable unless it is established otherwise under the Health Care Consent Act.
Similarly, when an involuntary patient applies to the Consent and Capacity Board for a review of their involuntary status, it is the physician who must prove, on a balance of probabilities, that the statutory criteria under the Mental Health Act continue to be met.
The patient does not have to prove that they deserve to leave the hospital.
The physician must prove that the law permits the patient's continued involuntary admission or that the statutory requirements for incapacity have been established.
If the physician satisfies the Board that the applicable legal test has been met, the physician succeeds.
If the physician does not satisfy the Board, the application fails.
That is not a technicality.
It is the legal framework established by the Ontario Legislature.
Lawyers Do Not (Usually) Practice Medicine
A patient's lawyer is not a psychiatrist.
Lawyers do not diagnose mental illness.
They do not prescribe medication.
They do not determine whether someone should remain in hospital.
They do not determine whether someone should receive treatment.
Those responsibilities belong to the treating physician and healthcare team.
The lawyer's responsibility is different.
It is to ensure that the patient's legal rights are protected, that the legislation has been complied with, that the evidence is properly tested, and that the Board has the information it needs to make a legally correct decision.
The treatment team and the patient's lawyer perform different functions.
Both are essential.
The Lawyer Does Not Act for the Family
Family members often provide invaluable support to loved ones experiencing mental illness.
Their concerns are real and important.
However, the patient's lawyer does not represent the family.
The lawyer represents the patient.
Unless someone has legal authority to instruct counsel under the applicable law, the lawyer receives instructions from the patient and owes duties of loyalty, confidentiality, and advocacy to that client alone.
This can be difficult when family members strongly disagree with the patient's position.
Nevertheless, a lawyer cannot disregard the client's lawful instructions simply because someone else believes a different outcome would be preferable.
The Lawyer Is Not Responsible for the Board's Decision
When the Board revokes an involuntary admission or finds a patient capable, it can be tempting to blame the patient's lawyer.
In reality, the lawyer did not make that decision.
The physician presented the evidence in support of continued involuntary admission or incapacity.
The patient's lawyer tested that evidence by asking questions, challenging assumptions, identifying legal or procedural deficiencies where they existed, and advancing the client's lawful position in accordance with the client's instructions.
The Board independently determined whether the statutory criteria had been established.
That is precisely how Ontario's mental health legislation is intended to operate.
Why This Matters
Ontario's mental health legislation recognizes that involuntary admission and involuntary treatment involve significant restrictions on a person's liberty, autonomy, and bodily integrity.
For that reason, the Legislature has established specific legal requirements that must be satisfied before those rights can be limited.
A patient's lawyer plays an important role in protecting those safeguards.
By asking difficult questions, ensuring that the treatment team has complied with the legislation, carefully testing the evidence, and advocating for the client's lawful instructions, the lawyer helps ensure that the Consent and Capacity Board reaches its decision based on the evidence and the law.
That role is not an obstacle to mental healthcare.
It is an essential part of a fair legal process.
The legal safeguards contained in Ontario's mental health legislation exist to protect everyone.
The patient's lawyer exists to ensure that those safeguards are respected.
That is our job.
If you have questions about a CCB proceeding or require legal advice or representation, please contact our office. We would be pleased to discuss your situation and help you understand the legal issues, available options, and next steps.
