III. ASSESSING LEGAL CAPACITY: IMPROVING QUALITY AND CONSISTENCY

FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter V

For the full text of draft recommendations, see the accompanying document

Main Point of the Chapter
Chapter V outlines Ontario’s multiple, overlapping systems for assessing legal capacity, under the Substitute Decisions Act, Health Care Consent Act and Mental Health Act. It identifies barriers and challenges within each of these systems, as well as in the ways in which they relate to each other. Particular concerns have been raised regarding access to Capacity Assessments under the Substitute Decisions Act and the lack of meaningful rights protections under the Health Care Consent Act.

Background
In keeping with its domain-specific approach to legal capacity, Ontario has several systems for assessing the legal capacity to make particular types of decisions. These differ in terms of who carries out the assessment, the procedural rights of individuals being assessed, information and supports available to those assessed, the costs for assessment and the consequences of a finding of incapacity. The four formal mechanisms are:

1.     Examination by treating physician of capacity to manage property upon admission to and discharge from  a psychiatric facility (Mental Health Act);

2.     Assessment by specialized Capacity Assessor of capacity to manage property or personal care (Substitute Decisions Act);

3.     Evaluation by health practitioner of capacity to consent to treatment (Health Care Consent Act); and

4.     Evaluation by capacity evaluator of capacity to consent to admission to long-term care and of capacity to consent to personal assistive services (Health Care Consent Act).

Legal capacity is also commonly informally assessed by service providers, as part of their responsibility to determine whether a particular individual can enter into an agreement or contract, or agree to a service. 

These various mechanisms for assessing capacity overlap and interact in complicated and sometimes confusing ways.

Issues
A number of concerns have been identified regarding the various mechanisms for assessing legal capacity. 

Misuse of assessments: The purpose of assessments may be misunderstood. They may also be misused as means of controlling others, furthering family disputes or attempting to achieve goals beyond the purposes of the legislation.

Barriers to Assessments of Capacity: Assessments by designated Capacity Assessors under the Substitute Decisions Act are provided on a consumer choice model. Persons seeking such an Assessment select an Assessor from a list maintained by the Capacity Assessment Office and are responsible for the cost of the Assessment. Low income or marginalized persons may find it difficult to navigate this system or to fund an Assessment. Because such Assessments are often necessary for entry to or exit from guardianship, this may have significant implications. 

Interaction between systems of assessment: There is widespread confusion about the roles and operation of Ontario’s multiple mechanisms for assessing capacity. 

Lack of clear standards for assessments under the Health Care Consent Act: There is no guidance in the Health Care Consent Act, regulations or official policies, forms or training materials for assessing capacity for consent to treatment, personal assistive services or admission to long-term care. Standards are set by the multiple health regulatory colleges. As well, some organizations have taken the initiative to develop training materials or guides. The lack of clear standards, together with shortfalls in training or education within some professions, creates confusion and anxiety in this area, and may leave some professionals without the supports they require to effectively carry out this important role. 

Rights protections for assessments under the Health Care Consent Act: Individuals found to lack legal capacity under the Health Care Consent Act are entitled to receive rights information, to enable them to access procedural protections around this important determination. However, many stakeholders raised significant concerns about widespread inadequate provision of rights information, across all Health Care Consent Act settings. This includes concerns that in many cases, rights information is not being provided at all.    

Here is a summary of the LCO’s draft recommendations in this area:

5.     Include in the Substitute Decisions Act a clear statement of purposes of Capacity Assessment, and amend Form C accordingly.

6.     Amend the Mental Health Act to require an examination of capacity to manage property where there are reasonable grounds to believe that the person may lack legal capacity and negative consequences may result. 

7.     The Ontario Government develop and implement a strategy for removing barriers and increasing access to Capacity Assessments under the Substitute Decisions Act. 

8.     Create official Guidelines for assessments under the Health Care Consent Act. 

9.     Include in the Health Care Consent Act minimum standards for the provision of rights information to persons found to lack legal capacity. 

10.  The Ontario Government explore means of providing independent and expert rights advice for persons found incapable under the Health Care Consent Act, for example by developing targeted programs. 

11.  Health Quality Ontario take steps, within its mandate, to improve the quality of assessments in the health care setting. 

12.  The Ministry of Health and Long-Term Care encourage and support long-term care homes to better address their responsibilities under the Bill of Rights regarding consent, capacity and decision-making. 

13.  Within the scope of their mandates and objects, the Local Health Integration Networks use their roles in improving quality, setting standards and benchmarks and evaluating outcomes to address issues identified by the LCO. 

14.  Should the recommendations related to capacity and consent in the health care setting be implemented, the Government of Ontario actively monitor and evaluate their success with a view to taking more wide-ranging initiatives if necessary.