Is an ineffective assistance claim available on appeal from a Consent and Capacity Board capacity decision? Yes

Gligorevic v. McMaster, 2012 ONCA 115 holds an ineffective assistance claim is available on appeal from a Consent and Capacity Board capacity decision:

[60]         In my opinion, as with an accused whose liberty is at risk in a criminal proceeding, a treatment capacity hearing implicates a patient's fundamental human rights.  In a very real sense, an incapacity finding engages a patient's liberty, dignity and right of self-determination with respect to medical treatment.  The onus at a Board capacity hearing is on the health practitioner asserting incapacity to demonstrate incapacity on the requisite civil standard of proof by means of strong and unequivocal evidence: Starson, at para. 77; Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 76 O.R. (3d) 321, at para. 79, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 428.  In that sense, where a patient contests his or her physician's finding of incapacity before the Board, the resulting capacity review hearing must be viewed as an adversarial, adjudicative proceeding where fundamental human rights are engaged.

[61]         Seen in this context, the effective assistance of counsel at a Board capacity hearing is no less important than at a criminal trial.  Adapting Doherty J.A.'s reasoning in Joanisse, at p. 57, to the mental health context, effective assistance by counsel at such hearings enhances the adjudicative fairness of the process.  It ensures that a patient who has been found incapable by his or her physician has a champion who has the same skills as counsel for the health care practitioner who can use those skills to ensure that the patient receives the full benefit of procedural protections available to the patient.  Moreover, effective assistance ensures that the case for incapacity is thoroughly and skilfully tested and evidence tending to support capacity is advanced on behalf of the patient.
...
[64]         It follows, in my view, that where it is established that counsel at a Board capacity hearing failed to provide effective assistance, thereby occasioning a miscarriage of justice, a patient may appeal an incapacity finding by the Board on the basis of that failure.