Consent and capacity
Consent and capacity for psychotherapy in Ontario (HCCA)
Facts checked against CRPO's and Ontario's official sources on October 21, 2026.
In Ontario, psychotherapy is treatment under the Health Care Consent Act, 1996 (HCCA), so a Registered Psychotherapist may not start it without valid consent. Consent must relate to the treatment, be informed, be given voluntarily and not be obtained through misrepresentation or fraud, and it comes from the client if they are capable of that decision, whatever their age, or from their substitute decision-maker if they are not. CRPO's Standard 3.2 (Consent) builds on the HCCA.
Psychotherapy is treatment
The HCCA defines treatment in s. 2 (1) as "anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose", including a course or plan of treatment. It excludes, among other things, assessing capacity, taking a health history and communicating a diagnosis. Section 10 (1) then forbids a health practitioner to administer treatment unless a capable person has consented, or the substitute of an incapable person has consented on their behalf.
What makes consent valid
Section 11 (1) sets four elements, and all must be present:
- It relates to the treatment.
- It is informed.
- It is given voluntarily.
- It is not obtained through misrepresentation or fraud.
Consent is informed, s. 11 (2) and (3), when the person received the information a reasonable person in the same circumstances would need about the nature of the treatment, its expected benefits, material risks and material side effects, alternative courses of action, and the likely consequences of not having it, and received answers to their questions. Consent can be express or implied, s. 11 (4), and it can be withdrawn at any time, s. 14.
CRPO's Standard 3.2 turns this into practice:
- Seek consent only after the client understands the process of therapy, its possible benefits and risks, other options and "the implications of not proceeding with therapy" (3.2.3).
- Obtain informed consent "on an ongoing basis" (3.2.4). Continued attendance implies it, but a change of approach is documented with the client's consent; a significantly different treatment needs fresh consent, HCCA s. 12 (a).
- Comply immediately with a refusal or withdrawal (3.2.5).
- Document the date, the options, risks and benefits discussed, and how consent was indicated (3.2.6). CRPO's commentary adds that a signed form is only partial evidence: the discussion is what counts.
- Obtain "express consent in every instance before using physical touch" (3.2.7).
Capacity: a two-part test, specific to the decision
Under s. 4 (1), a person is capable with respect to a treatment if they are "able to understand the information that is relevant to making a decision about the treatment" and "able to appreciate the reasonably foreseeable consequences of a decision or lack of decision". Both parts must be met.
- Presumed. A person is presumed capable, s. 4 (2), and you may rely on that unless you have reasonable grounds to believe otherwise, s. 4 (3).
- Specific. A person may be incapable for some treatments and capable for others, s. 15 (1), and incapable at one time and capable at another, s. 15 (2).
- Assessed when in doubt. Where a client appears to lack capacity, CRPO's Standard 3.2.1 requires you to assess and document it and, if they are incapable, to identify their substitute decision-maker.
- Regained. If the client becomes capable again, their own decision prevails, s. 16.
A person found incapable may ask the Consent and Capacity Board to review the finding, s. 32 (1).
There is no minimum age
CRPO says it plainly: "There is no minimum age for consent." A client under 18 who can understand and appreciate the decision consents for themselves. The number 16 appears elsewhere, which is why candidates trip:
| Where 16 appears | What it governs |
|---|---|
| HCCA s. 20 (2) (b) | A substitute decision-maker must be at least 16, unless they are the incapable person's parent |
| HCCA s. 21 (1) | A prior capable wish binds a substitute only if expressed at 16 or older |
| PHIPA s. 23 (1) | For a child under 16, a parent may also make decisions about the child's health information, but not about treatment the child decided on alone under the HCCA |
| PHIPA s. 23 (3) | Where a capable child under 16 and the parent disagree about the information, the child's decision prevails |
None of these sets an age of consent to psychotherapy. The child protection duty for children under 16 is a separate rule: see the duty to report guide.
Substitute decision-makers
If the client is incapable for the treatment, s. 20 (1) gives the order:
| Rank | Substitute |
|---|---|
| 1 | Guardian of the person with authority for treatment |
| 2 | Attorney for personal care with authority for treatment |
| 3 | Representative appointed by the Consent and Capacity Board |
| 4 | Spouse or partner |
| 5 | Child or parent, or a children's aid society or other person lawfully entitled to consent in the parent's place |
| 6 | Parent with a right of access only |
| 7 | Brother or sister |
| 8 | Any other relative |
The highest-ranking person who qualifies decides. To qualify, s. 20 (2), they must be capable for the treatment, at least 16 unless a parent, not barred by a court order or separation agreement, available and willing. If nobody qualifies, or two people of the same rank disagree, the Public Guardian and Trustee decides, s. 20 (5) and (6).
A substitute follows the person's known prior capable wish, and failing that acts in their best interests, s. 21. If you believe a substitute is not following these principles, the HCCA's route is an application to the Consent and Capacity Board, s. 37 (1), not overriding them yourself.
The consent and capacity decision diagram works through these steps, and the module The Legal Framework sets the HCCA beside PHIPA. The free practice case is a first session built around consent.
Common questions
Can a 14-year-old consent to psychotherapy in Ontario?
Yes, if they are capable of that decision. Neither the HCCA nor CRPO sets a minimum age.
Is a signed consent form enough?
No. CRPO treats a signature as only partial evidence; document the conversation itself (Standard 3.2.6).
Do I have to assess every client's capacity?
No. Capacity is presumed, HCCA s. 4 (2). You assess and document it where a client appears to lack capacity (Standard 3.2.1).
Who decides if no family member is available?
The Public Guardian and Trustee, HCCA s. 20 (5). It is never nobody.