The Legal Framework

How to read this module

Blueprint Area 6 (professional practice) is ten to fifteen per cent of the examination on its own, and legal content leaks into Area 3, which is the heaviest area on the paper. The examination does not test statutory recall. It tests whether you behave lawfully inside a clinical moment. You will never be asked to name a section number, and you will constantly be asked to choose between an action that is lawful and an action that is well intentioned.

So learn the structure and the thresholds, and treat section numbers as scaffolding. The pinpoints in this module were read against the consolidated statutes on e-Laws in September 2026; learn them as support for the principle, not as the thing the exam asks for.

The Regulated Health Professions Act and the Psychotherapy Act

The architecture

Ontario does not regulate health professions one statute at a time. It uses a shared framework:

• The Regulated Health Professions Act, 1991 (RHPA) sets the system: the controlled acts, the prohibition on unauthorised performance of them, and the umbrella under which colleges operate.
• The Health Professions Procedural Code, which is Schedule 2 to the RHPA, contains the machinery every college runs on: registration, complaints, investigations, discipline, incapacity, and the mandatory reporting duties. When a source cites "section 85.1", it is citing the Code, not the body of the RHPA.
• The Psychotherapy Act, 2007 is the profession-specific statute. It establishes the College, the scope of practice, the authorised act, and title protection.
• A professional misconduct regulation made under the Psychotherapy Act defines the acts that constitute professional misconduct for registrants.

CRPO's Professional Practice Standards sit underneath all of that. They are not legislation, but breaching them is generally professional misconduct, so they bind just as tightly.

Scope of practice

The Psychotherapy Act describes the practice of psychotherapy as "the assessment and treatment of cognitive, emotional or behavioural disturbances by psychotherapeutic means, delivered through a therapeutic relationship based primarily on verbal or non-verbal communication."

Two features are examinable. First, assessment is inside the scope: RPs assess. Second, the work is delivered "through a therapeutic relationship", which is why psychoeducation and information-giving are not by themselves psychotherapy, and why the relationship is what the College protects most fiercely.

A scope of practice statement is descriptive, not exclusive: it tells you what the profession does, and does not by itself prohibit anyone else from doing it. The prohibition comes from the controlled acts.

The College and how it regulates

CRPO is a regulator, not an educational institution or a professional association. Its mandate is the public interest, not the profession's: CRPO's own example is that it cannot lobby for insurers to cover RP services, which is work for associations. It is funded by applicants' and registrants' fees, not by government, and it can suspend a certificate for non-payment.

Its functions are those of any health regulator: registration requirements, a Quality Assurance Program for continuing competence, investigation of complaints and reports, discipline and fitness to practise hearings, and a public register showing each registrant's status and any conduct concerns.

A Council of registrants and government-appointed public members governs the College. It sets policy, approves regulations, by-laws and budgets, and reviews the Registrar, the senior staff person. The RHPA requires seven statutory committees; the two you will meet first are the Registration Committee and the Inquiries, Complaints and Reports Committee (ICRC), which screens complaints and reports. CRPO's non-statutory Examination Committee hears appeals from candidates who failed the registration examination.

The rules come in layers. The College proposes regulations on registration, professional misconduct and quality assurance; Council makes by-laws on matters such as fees, the public register and liability insurance; standards, guidelines and policies explain how to practise. A policy is not law, but contravening a College standard is professional misconduct, and guidelines and policies are evidence of what a registrant was expected to do.

Safeguards keep the system fair and open. Council meetings and discipline hearings are open to the public. Most Registration Committee and ICRC decisions can go to the Health Professions Appeal and Review Board (HPARB); discipline and fitness to practise decisions are appealed to the Divisional Court. The Office of the Fairness Commissioner oversees registration practices, and the College reports to the Minister of Health, who can audit it and, in serious cases, appoint a supervisor. The complaint process itself is in the client-therapist relationship module, under Standard 3.6.

The controlled act of psychotherapy

The RHPA lists fourteen controlled acts: procedures considered risky enough that performing them without authorisation is an offence. Psychotherapy is the fourteenth and most recently added.

The controlled act is:

"Treating, by means of psychotherapy technique, delivered through a therapeutic relationship, an individual's serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual's judgement, insight, behaviour, communication or social functioning."

The five elements, all of which must be present

Break the definition apart, because the whole point of the controlled act is that it is narrower than the profession's scope:

1. Treating. Not assessing, not educating, not supporting. Treatment.
2. By means of psychotherapy technique. A recognised psychotherapeutic method, not general counselling or advice.
3. Delivered through a therapeutic relationship. A one-off workshop is not this. An ongoing clinical relationship is.
4. A serious disorder of thought, cognition, mood, emotional regulation, perception or memory. The word "serious" is doing real work.
5. That may seriously impair judgement, insight, behaviour, communication or social functioning.

All five must be present for the act to be controlled. Remove any one and the activity may still be psychotherapy within the profession's scope, but it is not the controlled act. This is why unregulated counsellors, coaches and peer workers can lawfully do a great deal of work.

The controlled act also reaches across borders in one direction that catches people out: CRPO takes the position that it captures practitioners physically in Ontario and practitioners outside Ontario serving Ontario clients, for example by video.

Who else is authorised

Six colleges' registrants may perform the controlled act of psychotherapy, with the relevant provisions having come into force on 30 December 2017:

• College of Registered Psychotherapists of Ontario
• College of Psychologists and Behaviour Analysts of Ontario
• College of Physicians and Surgeons of Ontario
• College of Nurses of Ontario
• College of Occupational Therapists of Ontario
• Ontario College of Social Workers and Social Service Workers

Authorisation is not competence. CRPO's standard is that a registrant may perform the controlled act provided they have the competence to do so safely and effectively, and the exam tests that second question far more often than the first.

The exceptions

Certain activities are lawful even though they would otherwise be a controlled act. CRPO identifies these as applying to psychotherapy:

• Emergency first aid or temporary assistance in an emergency.
• Treating by prayer or spiritual means in accordance with the tenets of the religion of the person giving the treatment.
• Indigenous healers providing Indigenous healing to Indigenous persons, and Indigenous midwives.
• The student exception.

The student exception is the one examined. A person fulfilling the requirements to become a registrant of a college may perform the controlled act while under clinical supervision, as part of meeting registration requirements. Two consequences follow. A supervised student may lawfully do the work. A student may not use the protected titles: the correct self-description is "student therapist" or "therapist in training", with a statement that they practise under clinical supervision. Pending applicants are in the same position. CRPO adds three limits: a student needs an RP as clinical supervisor to perform the act, and supervision by another profession supports learning but does not authorize it; applying for registration, or appealing a registration decision, does not by itself authorize the act; and a graduate who meets the requirements must register rather than keep practising under supervision to build hours. The rules reach anyone treating a client located in Ontario, including from outside Ontario by video.

Verified against e-Laws on 23 September 2026. RHPA s. 27 (1): no person shall perform a controlled act "in the course of providing health care services to an individual" unless authorised by a health profession Act or the act has been delegated by someone who is. Psychotherapy is the fourteenth and last controlled act in s. 27 (2). Section 29 (1) sets out the exceptions, which include rendering first aid or temporary assistance in an emergency, meeting the requirements to become a member under supervision, treatment by prayer or spiritual means, and treating a member of your own household, which covers only the controlled acts in paragraphs 1, 5 and 6 of s. 27 (2) and so never psychotherapy. Assisting a person with routine activities of living, s. 29 (1) (e), likewise covers only paragraphs 5 and 6, so it never reaches psychotherapy either. Section 29 (2) is the one that matters most here: s. 27 (1) does not apply to "a communication made in the course of counselling about emotional, social, educational or spiritual matters" unless a health profession Act authorises members to make it. Section 30 (1) is the harm clause: no person other than a member treating or advising within their own scope shall treat or advise about health "in circumstances in which it is reasonably foreseeable that serious bodily harm may result".

Delegation: the short answer is no

CRPO's standard is blunt: registrants refrain from delegating the controlled act of psychotherapy. The College's position is that delegation is possible only in exceptional circumstances with prior Council approval, or in an emergency with notification to the College as soon as reasonably possible. For examination purposes, treat any option in which an RP hands the controlled act to an unregulated assistant, a student outside a supervised registration pathway, or an administrative staff member as a serious negative.

Accepting a delegation runs the other way and is permitted, but only where three conditions all hold: the delegating regulated health professional is acting within their own scope and their college's rules and will take responsibility for your actions; performing the act would not breach therapist-client boundaries; and you have the competence to carry it out safely and effectively.

Titles

The Psychotherapy Act protects "psychotherapist", "Registered Psychotherapist" and "Registered Mental Health Therapist", along with variations and abbreviations. CRPO has deferred use of the title "Registered Mental Health Therapist". Someone who is registered with none of the colleges whose members may practise psychotherapy may not use these titles or perform the controlled act; CRPO can take legal action to stop them, weighing the strength of the evidence and the risk to the public, and it posts notices when it does. Anyone, including an RP, can send CRPO a concern about an unregulated practitioner.

Approved abbreviations are RP and, in French, PA. The qualifying category uses "Registered Psychotherapist (Qualifying)", and CRPO is explicit that "RP(Q)" is not an approved abbreviation.

Two further rules are worth memorising because they are cheap marks. When acting in a professional capacity, the College-conferred title takes prominence above any other qualification or designation; CRPO's own examples place the degree first and the regulated title ahead of voluntary credentials. And registrants do not use "doctor" or its abbreviations when offering or providing health care services, including psychotherapy, even where they hold a doctorate, unless their own college authorises it.

Verified against e-Laws on 23 September 2026. The provision is RHPA s. 33.1 and it is in force in the consolidated Act. It allows a person who holds a certificate authorising the controlled act of psychotherapy and who belongs to the College of Nurses of Ontario, the College of Occupational Therapists of Ontario, the College of Physicians and Surgeons of Ontario or the College of Psychologists of Ontario to use the title "psychotherapist", on conditions: in speech they must also name their own College, and in writing the title must appear with it. Psychotherapy Act, 2007 s. 8 (1) is the protection itself: no person other than a member shall use "psychotherapist", "registered psychotherapist" or "registered mental health therapist", "a variation or abbreviation or an equivalent in another language".

Why an RP cannot communicate a diagnosis

This is a recurring source of negative options, so be precise about what is and is not prohibited.

Communicating a diagnosis is a separate controlled act, and it is not one of the acts authorised to Registered Psychotherapists. The controlled act in question is communicating to an individual or their representative a diagnosis identifying a disease or disorder as the cause of the individual's symptoms, in circumstances where it is reasonably foreseeable that the individual or their representative will rely on the diagnosis.

What an RP may do:

• Assess. Assessment is expressly inside the scope of practice.
• Formulate the problem, describe symptoms, identify patterns, and record all of that in the clinical record.
• Use a diagnosis made by an authorised professional in planning treatment, and discuss a diagnosis the client already has.
• Recognise the major diagnostic categories in current use. The competency profile requires it (1.3d).
• Refer for diagnostic assessment.

What an RP may not do:

• Tell a client they have a disorder, in circumstances where they will rely on it.
• Write a diagnosis into a report or an insurance form as the RP's own conclusion.
• Confirm or rule out a diagnosis when asked directly. The correct move is to say what you can observe, explain the limit of your role, and offer a referral.

Working beside a clinician who can diagnose. CRPO's jurisprudence manual (Standard 1.4) names the setting where this goes wrong: "Confusion can arise when an RP works with another professional authorized to communicate a diagnosis. Registrants are permitted to refer to and treat a previously diagnosed condition, but may not take on the role of the diagnosing professional." Its example is Rian, an RP in the motor vehicle accident sector, whose supervisor, a physician or psychologist, reviews Rian's assessment, makes the diagnosis, tells the client and signs the insurance report. In a busy stretch Rian discusses the cases with the supervisor, then signs the reports and tells the clients the diagnosis. The manual's verdict: "Even though they work with a professional authorized to communicate a diagnosis, Rian should not be the first care provider to communicate the diagnosis to clients." A colleague's agreement does not hand you the controlled act. Your part stays the same: assess, recognise the diagnostic categories (competency 1.3d), and refer to and treat a condition the diagnosing professional has already communicated to the client.

In simulations, an option that has the RP telling a client "what you are describing is post-traumatic stress disorder" is a scope violation, typically weighted -2, and it is placed in the item precisely because it sounds helpful and clinically fluent.

PHIPA: personal health information

The Personal Health Information Protection Act, 2004 governs the collection, use and disclosure of personal health information by health information custodians in Ontario.

Custodian or agent, and why it matters

A health information custodian is a listed person or organisation that has custody or control of personal health information as a result of their powers or duties. An RP in private practice is a custodian. An RP employed by a hospital, agency or group practice is normally an agent of that organisation, and the organisation is the custodian.

The distinction determines who holds the obligations: who must have a privacy policy and a written public statement of information practices, who responds to access requests, who notifies on a breach, who retains and destroys the records. An agent acts on the custodian's behalf and within the custodian's permissions; a custodian answers for the record.

Personal health information is identifying information about an individual's physical or mental health, health care provided to them, their health number, the identity of their provider or substitute decision-maker, and related matters. It includes oral information, not only recorded information. The client's name on your appointment calendar is personal health information.

Consent, implied consent and the circle of care

PHIPA requires consent for collection, use and disclosure unless the Act permits or requires otherwise. Valid consent under PHIPA must be the individual's (or their substitute's), knowledgeable, must relate to the information, and must not be obtained by deception or coercion. "Knowledgeable" means the individual knows the purposes of the collection, use or disclosure and knows they may give or withhold consent. A posted or provided notice of information practices is how custodians usually satisfy this.

"Circle of care" is not a statutory term. It is shorthand for a rule that lets certain custodians assume an individual's implied consent to collect, use and disclose health information for the purpose of providing health care. The assumption is available only when all six of the following hold:

1. The custodian belongs to a class entitled to rely on assumed implied consent.
2. The information was received from the individual, their substitute decision-maker, or another custodian.
3. It was received for the purpose of providing or assisting in providing health care to that individual.
4. The present collection, use or disclosure is also for providing or assisting in providing health care to that individual.
5. If it is a disclosure, the recipient is another health information custodian.
6. The custodian is not aware that the individual has expressly withheld or withdrawn consent.

Note what falls outside: a disclosure to an employer, insurer, lawyer, family member, school or unregulated counsellor is not a circle-of-care disclosure, because the recipient is not a custodian.

CRPO adds a practice overlay that is stricter than the statute. Registrants are strongly encouraged to obtain express consent for disclosures to other providers, and to explain in team settings what will be shared and who will have access. On the exam, the option that obtains express consent outscores the option that relies on implied consent almost every time, even where implied consent would be lawful.

The lockbox

An individual may expressly withhold or withdraw consent to the collection, use or disclosure of some or all of their personal health information. This is the "lockbox", and it is a client right, not a request you may weigh.

Three consequences:

• A lockbox instruction defeats assumed implied consent, because condition 6 above fails.
• If you are prevented by an express instruction from disclosing information that is reasonably necessary for the provision of health care, you must notify the receiving custodian that information has been withheld, without revealing the content. The other clinician learns that something is missing; they do not learn what.
• A lockbox does not override disclosures that are permitted or required without consent. Mandatory reports, a disclosure to reduce a significant risk of serious bodily harm, and a court order all operate regardless.

Right of access

An individual has a right of access to a record of their own personal health information in your custody or control. Treat access as the default and refusal as the exception you must justify.

Timeline: respond no later than 30 days after receiving the request. Within those 30 days you may extend once, by up to a further 30 days, only where the information consists of numerous pieces or needs a lengthy search, or the consultations needed to reply cannot practically be completed in time, and you must give written notice of the length and the reason (PHIPA s. 54 (3) and (4)).

Grounds for refusal include legal privilege, information in an ongoing investigation or proceeding, another statute prohibiting disclosure, and the clinically important one: where access could reasonably be expected to result in a risk of serious harm to the treatment or recovery of the individual, or serious bodily harm to the individual or another person. Note that this is a high bar and a specific one. "The client will find it upsetting" is not the test.

Excluded material includes quality of care information, quality assurance information and raw data from standardized psychological tests (PHIPA s. 51 (1)), and information of a type the regulations prescribe.

Severance is mandatory where it is possible. If part of the record is exempt, you sever that part and give access to the rest. Refusing the whole file because part of it is exempt is a breach.

Fees must be limited to reasonable cost recovery.

Verified against e-Laws on 23 September 2026. PHIPA s. 54 (10) lets a custodian charge for access only "if the custodian first gives the individual an estimate of the fee", and s. 54 (11) caps it: "The amount of the fee shall not exceed the prescribed amount or the amount of reasonable cost recovery, if no amount is prescribed." No amount is prescribed, so reasonable cost recovery is the rule. Section 54 (12) allows the custodian to waive the fee where it is fair and equitable. No rate is set by the Act, so do not quote a per-page figure as a rule. CRPO's own Standard 5.1 page gives an example, "a fee of $30 for the first 20 pages and 25 cents for each additional page, has been held as reasonable", and adds that "the fee must not be a financial barrier to access."

Right of correction

An individual who believes their record is inaccurate or incomplete for the purposes for which you use it may request a correction, and you respond within a comparable 30-day structure.

You are not required to correct a professional opinion or observation made in good faith. This is the point the exam tests. A client who disputes your clinical impression is not entitled to have it deleted. Nor are you required to correct a record you did not create where you lack the knowledge, expertise or authority to do so.

If you refuse, the individual may require you to attach a statement of disagreement to the record, and on request to notify, to the extent reasonably possible, the people to whom the information was disclosed, unless the correction could not reasonably affect their ongoing care or other benefits (PHIPA s. 55 (10) and (11); there is no one year limit in the statute). Refusal, or failure to respond, may be complained of to the IPC. The clinically correct posture is to correct plain factual errors readily (a wrong date of birth, a misattributed statement) and to offer the statement of disagreement for matters of opinion.

Verified against e-Laws on 23 September 2026. The pinpoints are PHIPA s. 55 (1) for the request, which the individual makes in writing where the record is "inaccurate or incomplete for the purposes for which the custodian has collected, uses or has used the information", and s. 55 (3) for the reply: "As soon as possible in the circumstances but no later than 30 days", extendable once by up to a further 30 days on the grounds set out there. Access runs on the same structure: s. 54 (2) gives 30 days and s. 54 (3) one extension of up to 30 days.

Breach notification

Where personal health information is stolen, lost, or used or disclosed without authority, you must notify the affected individual at the first reasonable opportunity, and tell them they may complain to the Information and Privacy Commissioner.

Certain breaches must also be reported to the IPC. The prescribed circumstances include: use or disclosure without authority by someone who knew or ought to have known it was not permitted; theft, including records, devices, and ransomware, unless the stolen information was de-identified or properly encrypted; further unauthorised use or disclosure after an initial breach; a pattern of similar breaches suggesting a systemic problem; disciplinary action taken against a College member or another agent as a result of the breach; and a breach that is otherwise significant, judged on the sensitivity of the information, the volume, the number of individuals affected, and whether more than one custodian or agent was responsible.

Every custodian must also report annual breach statistics to the IPC, covering all breaches whether or not individually reportable, by 1 March each year for the previous calendar year.

Safeguards, retention and disposal

You must retain, transfer and dispose of records of personal health information securely, and take steps reasonable in the circumstances to protect against theft, loss, and unauthorised use, disclosure, modification or disposal.

PHIPA itself sets no fixed retention period. CRPO does: records are kept for at least 10 years from the date of the last interaction with the client, or 10 years from the client's 18th birthday, whichever is later. CRPO's own worked example: a client last seen at age seven is retained until they are 28. The same rule applies to clinical records, appointment records and financial records, and it survives the closure of a practice.

Reasonable safeguards, as CRPO frames them, include locked storage, screens positioned against unauthorised viewing, micro-cut shredding, encryption and password protection, backups with tested recovery, audit logs recording who entered and who viewed what and when, need-to-know access, confidentiality agreements, and an alternate record-keeping method for system failure. A custodian should also designate a written successor, with that person's consent, and keep the College informed of who would take custody of the records on the custodian's death or long-term inability.

Beyond PHIPA: complaints, PIPEDA, missing persons and deceased clients

Four further rules complete the privacy picture.

• Privacy complaints. Every custodian needs a process for handling complaints about its information practices, and clients should know they may complain to CRPO and to the Information and Privacy Commissioner. The IPC, not the College, can order a custodian to correct a record or give access; CRPO regulates the registrant's conduct.
• PIPEDA. The federal Personal Information Protection and Electronic Documents Act governs personal information in commercial activity outside health care, such as selling a course or an e-book. CRPO's manual lists its ten principles: accountability through a privacy officer, identifying purposes, consent, limiting collection, limiting use, disclosure and retention, accuracy, safeguards, openness, individual access, and a complaints procedure for challenging compliance.
• The Missing Persons Act, 2018. In a missing person investigation, police may make an urgent demand for records on the prescribed form. It is not a criminal investigation power: its purpose is the missing person's safety. The demand may cover all or part of a record, or an oral account if the officer agrees. Read the form, and where there is a compelling reason not to release part of the record, tell the police and contact legal counsel promptly.
• Deceased clients. Confidentiality survives death, and the estate trustee, or the person who has taken on the administration of the estate, consents in the client's place (PHIPA s. 23 (1) para. 4). PHIPA s. 38 (4) permits, without requiring, disclosure to identify the person, to tell people it is reasonable to inform of the death and, where appropriate, its circumstances, and to a spouse, partner, sibling or child who reasonably needs the information to make decisions about their own or their children's health care.

The Health Care Consent Act

It applies to psychotherapy

The Health Care Consent Act, 1996 (HCCA) governs consent to treatment. "Treatment" is defined broadly enough to capture anything done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, including a plan of treatment. Psychotherapy is treatment; an RP is a health practitioner for these purposes; and CRPO's consent standard is expressly grounded in the HCCA.

The four elements of valid consent

Consent to treatment is valid only if:

1. It relates to the treatment.
2. It is informed.
3. It is given voluntarily.
4. It is not obtained through misrepresentation or fraud.

Consent is informed if the person received the information a reasonable person in the same circumstances would require about the nature of the treatment, its expected benefits, its material risks, its material side effects, alternative courses of action, and the likely consequences of not having the treatment, and received responses to their requests for further information.

Consent may be express or implied. CRPO's operational rules on top of this are the examinable ones:

• Consent is obtained on an ongoing basis, not once at intake. Continued attendance after an adequate explanation generally implies ongoing consent.
• A change in therapeutic approach or technique is documented in the record with a note of the client's express or implied consent. Where the change is significantly different in nature, benefits or material risks, the earlier consent does not cover it and a fresh consent conversation is needed (HCCA s. 12 (a)).
• Express consent is required in every instance before using physical touch, and you may not assume implied consent to touch even where you have used a similar technique with that client before.
• Withheld or withdrawn consent is complied with immediately.
• A signature on a form is not informed consent. The discussion precedes the signature, and it is the discussion that must be documented: the date, what was discussed, the options, risks and benefits, and the method by which consent was indicated.

Capacity is decision-specific, not age-based

There is no fixed age of consent to treatment in Ontario. CRPO states it plainly: there is no minimum age for consent. A client under 18 may consent for themselves if they are capable.

A person is capable with respect to a treatment if they are able to:

1. understand the information relevant to making the decision, and
2. appreciate the reasonably foreseeable consequences of a decision or of a lack of decision.

Four features follow, and each is examined.

• Capacity is presumed. You may presume a client is capable unless you have reasonable grounds to believe otherwise.
• Capacity is decision-specific. A client may be capable with respect to some matters and incapable with respect to others. Capable of consenting to weekly psychotherapy; incapable of managing their finances.
• Capacity is time-specific. It fluctuates. A client who was incapable during an acute episode may be capable a fortnight later.
• Where a client appears to lack capacity, you assess it and document the assessment, and if they are incapable you identify the substitute decision-maker.

Age does appear in the legislation, which is the source of the confusion. Under PHIPA, a capable individual of any age makes their own decisions about their personal health information (s. 23 (1), para. 1). For a child under 16, a parent (not one with only a right of access) may also decide, except about treatment the child decided on alone under the HCCA or counselling the child took part in alone under the CYFSA (para. 2), and a capable child's decision prevails over the parent's (s. 23 (3)). Under the HCCA, an SDM must be at least 16 unless they are a parent of the incapable person, and a prior capable wish binds only if it was expressed at 16 or older. None of that creates an age of consent to treatment. If a simulation option turns on the client "being old enough to consent", it is wrong.

The substitute decision-maker hierarchy

Where a client is incapable with respect to a treatment, consent comes from the highest-ranking available person in this list:

There is no ninth rank. If nobody on the list qualifies, the Public Guardian and Trustee decides (s. 20 (5)), and where two substitutes of equal rank disagree, the Public Guardian and Trustee decides between them (s. 20 (6)). A spouse is a person you are married to, or live with in a conjugal relationship outside marriage where you have cohabited for at least a year, are together the parents of a child, or have a cohabitation agreement; spouses living separate and apart after a breakdown are excluded. A partner is someone you have lived with for at least a year in a close personal relationship of primary importance to both (HCCA s. 20 (7) to (9)). Only a partner carries the one year test on its own.

Three rules attach:

• A substitute must be capable with respect to the treatment, at least 16 (unless a parent of the incapable person), not prohibited by court order or separation agreement, available, and willing. A person who ranks high but is unavailable or unwilling is passed over.
• A custodial parent outranks a parent with access only. This matters in family law scenarios where the parent pressing you for a decision is not the one entitled to make it.
• The answer is never "nobody". When no one on the list qualifies, the Public Guardian and Trustee decides, and it also decides where two people of equal rank disagree (s. 20 (5) and (6)).

How a substitute must decide

A substitute decision-maker does not decide as they would for themselves. They must act on the incapable person's prior capable wish applicable to the circumstances, expressed when the person was capable and at least 16. If there is no such wish, they act in the person's best interests, taking into account the person's values and beliefs when capable, any later wishes that do not meet the test for a binding prior wish, and whether the treatment is likely to improve the person's condition or prevent or slow deterioration, whether the expected benefit outweighs the risk of harm, and whether a less restrictive or less intrusive treatment would be as beneficial.

If a substitute is not following these principles, the remedy is an application to the Consent and Capacity Board, not unilateral action by the clinician. CRPO's manual adds the first step: speak with the substitute, and where their decisions will harm the client, contact the Office of the Public Guardian and Trustee.

Emergency

Treatment may be given without consent in an emergency to a person who is incapable with respect to it, where they are apparently experiencing severe suffering or are at risk of sustaining serious bodily harm if treatment is not administered promptly, and the delay in obtaining a substitute's consent would prolong the suffering or put them at risk (HCCA s. 25 (2)). Section 25 (3) extends this to an apparently capable person only where a language barrier or a disability prevents communicating with them. An emergency never overrides a capable person's refusal. This rarely arises in psychotherapy, but the related PHIPA permission (contacting a relative, friend or potential substitute decision-maker where a person is injured, incapacitated or ill and unable to consent personally) does.

Verified against e-Laws on 23 September 2026. Treatment, s. 2 (1), is "anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose", and the definition excludes, among other things, capacity assessments, taking a health history, communicating an assessment or diagnosis, and "a treatment that in the circumstances poses little or no risk of harm to the person". Capacity, s. 4 (1), is being "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"; s. 4 (2) presumes it. Section 15 makes capacity specific to the treatment and to the moment. The elements of consent are in s. 11 (1): it must relate to the treatment, be informed, be given voluntarily, and not be obtained through misrepresentation or fraud, and s. 11 (3) lists what informed means. The emergency exception is s. 25, not s. 13: s. 25 (1) defines an emergency as the person "apparently experiencing severe suffering" or being "at risk, if the treatment is not administered promptly, of sustaining serious bodily harm". Section 13 is the plan of treatment provision. The substitute hierarchy is s. 20 (1), and the requirements on a substitute, including being at least 16 unless they are the person's parent, are in s. 20 (2); where two equally ranked substitutes disagree, s. 20 (6) sends the decision to the Public Guardian and Trustee. Section 21 (1) puts a known applicable prior capable wish first and best interests second, and s. 21 (2) lists what best interests takes in.

What this looks like in a simulation

Five patterns recur:

1. The scope trap. An option in which the RP diagnoses, gives legal advice, or makes a custody recommendation. Always a negative, usually -2, always plausible-sounding.
2. The consent shortcut. An option in which a form is produced instead of a conversation, or a new modality is introduced without a fresh consent discussion, or touch is used on the strength of past practice.
3. The capacity error. An option that treats a competent 15-year-old as unable to consent, or an adult with a cognitive impairment as globally incapable. Capacity is decision-specific and presumed.
4. The implied consent overreach. An option that shares information with an employer, insurer, school or family member on a circle-of-care rationale. They are not custodians and it is not the circle of care.
5. The access refusal. An option that refuses a client access to their own record for reasons of discomfort rather than serious harm, or refuses the whole file when severance would do.

In each case the highest-weighted option is the one that finds out first, tells the client, obtains the specific consent, and does the minimum the law requires.