What is the standard of review for determining whether a person has capacity to refuse treatment?
Ontario, Canada
The following excerpt is from Shaffy Gutteridge, 2010 ONSC 5975 (CanLII):
The determination of a person’s capacity with respect to treatment is a question of mixed fact and law. The appropriate standard of review in the absence of an error of law is reasonableness. No error of law has been demonstrated. Fleming v. Starson, (2003) S.C.C. 120 at paras. 84-88.
An unreasonable decision is one which is generally not supported by any reasons that can stand up to a somewhat probing examination. The decision may satisfy the reasonableness standard if it is supported by a tenable explanation, even if the explanation is not one which the review court finds compelling. Law Society of New Brunswick v. Ryan, (2003) S.C.C. 20 at paras. 55-56.
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