A. INTRODUCTION AND BACKGROUND
Because of the potentially momentous implications of a determination of legal capacity, it is essential that the mechanisms that are in place for assessing it are accessible, effective and just. Capacity assessment mechanisms that are difficult to navigate, costly, insensitive, inaccessible,
poor quality or lack appropriate procedural protections may lead to the inappropriate application of the law, including the removal of rights and autonomy from persons who are capable of making their own decisions.
Capacity assessment is in many cases the entry point to the Substitute Decisions Act, 1992 (SDA) or the Health Care Consent Act, 1996 (HCCA): the level of supports, options and navigational assistance available at this stage will significantly shape how individuals and families experience this area of the law.
As will be discussed below, Ontario’s legal capacity, decision-making and guardianship laws include multiple means of assessing capacity, including:
- examinations for capacity under the Mental Health Act (MHA),
- evaluations of capacity to consent to admission to long-term care under the HCCA,
- assessments of capacity to consent to treatment under the HCCA,
- formal Capacity Assessments by a designated assessor under the SDA, and
- informal assessments of capacity by service provider
When this Chapter refers to “capacity assessment” or “assessing capacity”, it includes all Ontario mechanisms for assessing capacity, unless otherwise specified. When the Chapter refers to “Capacity Assessment” using the upper case, it is referring specifically to assessments carried out under the SDA regarding property and personal care.
- Ontario’s systems for assessing legal capacity in the various domains of decision-making are described at length in Part II of the Discussion Paper.
Ontario might best be described as having, not a system for assessing legal capacity, but a set of systems for assessing capacity. There are five systems for assessing capacity considered in this report:
- informal assessments of capacity carried out as part of the provision of a service or the creation of a contract;
- examinations of capacity to manage property upon admission to or discharge from a psychiatric facility (MHA);
- Capacity Assessments regarding the ability to make decisions regarding property or personal care (SDA);
- evaluations of capacity to make decisions about admission to long-term care or for personal assistance services (HCCA): and
- assessments of capacity to make treatment decisions (HCCA);
There are areas of commonality among these assessment mechanisms, but they differ from each other considerably in terms of factors such as the following:
- who conducts the assessment;
- the training and standards imposed on persons conducting the assessment;
- information and supports for persons undergoing assessments;
- documentation required for the assessment process; and
- mechanisms and supports for challenging an assessment.
Each system has its own set of checks and balances for the overarching tensions between accessibility to the process and accountability, preservation of autonomy and protection of the vulnerable that underlie this process.
The various capacity assessment systems also vary in their levels of process and the challenges of navigation. As well, the existence of multiple separate systems inevitably results in considerable complexity in the system as a whole.
While different systems tend to affect different populations, in practice there may be considerable overlap for persons with mental health disabilities or for individuals who interact with issues of capacity at various points over their lives. In practice, there is considerable ambiguity and confusion related to the intersection and interaction of the systems.
A very general overview of key formal mechanisms for assessment of capacity is provided on the chart on the next page.
Some Key Assessment Mechanisms: A Summary Overview
This is a high level summary document provided for reader assistance only. There are many additional occasions for assessment, exceptions, requirements and contexts that are not reflected in the table. Detailed descriptions of assessment mechanisms are provided in the text
2. Informal Assessments of Capacity
Informal capacity assessments play a very important role in the practical operation of Ontario’s legal capacity, decision-making and guardianship system. The way in which these assessments are carried out has a significant impact on the breadth of application of substitute decision-making in Ontario, particularly as these informal assessments occur more frequently than formal assessments.
Service providers regularly informally assess legal capacity, to determine whether a particular individual can enter into an agreement or contract, or agree to a service. Certain service providers, such as health practitioners, have a legislated and long- standing duty to ensure that they have obtained valid consent to provide their services.127 Lawyers and paralegals will need to ensure that clients have the capacity to provide instructions, create a valid power of attorney, or to bring legal proceedings where appropriate.128 Service providers entering into contracts or agreements will have a strong interest in ensuring that the individual has the capacity to enter into the contract and that it is not voidable due to, for example, unconscionability or undue influence. In each case, this is a fundamental preliminary step to providing the service. If the consent or the agreement is not valid, there may be significant consequences for the service provider.
A decision by a service provider that an individual does not have legal capacity to agree to a particular service or enter into a contract may trigger entry into formal substitute decision-making arrangements in order to access the service, for example through the activation of a power of attorney or the creation of a guardianship by a family member.
The LCO’s project on Capacity and Legal Representation for the Federal RDSP provides an example of this dynamic. To open a federal Registered Disability Savings Plan through a financial institution, there must be a plan holder who is “contractually competent”. Where a financial institution does not believe that an individual has the legal capacity to be a plan holder, it may decline to enter into a contract. Currently, in these situations, the would-be beneficiary may need to seek a legal representative, such as a guardian of property or a person acting under a power of attorney for property, to open an RDSP.
During the LCO’s consultations, some service providers expressed discomfort with their role in assessing legal capacity, indicating that they felt that they did not have sufficient expertise or skill to carry out assessments appropriately, and noting that this did not always fit naturally with other aspects of their role. This is particularly true where legal capacity and decision-making law is only a small part of the work that service providers are doing, and issues arise only on an infrequent basis. In many service organizations, it is front-line workers who will be directly encountering issues related to legal capacity and decision-making, and who will be tasked with identifying potential issues and applying correct procedures. It is also at the front-lines where pressures related to limited resources, competing needs and the tension between standardization and responsiveness to individual needs will be most acute.
Service providers want to feel secure that they can reasonably rely on the decisions that individuals make as they interact with them as valid in law, particularly where legal capacity is lacking or unclear. The Canadian Bankers Association, in its 2016 submission, commented,
Financial institutions that are dealing with the life savings and financial security of their clients, including older persons and persons with disabilities, require certainty when clients or their legal representatives enter into contracts and provide instructions about the investment and disposition of the client’s financial holdings. In situations where a client’s actions make it less likely that presumptions of capacity can be relied upon, financial institutions should be able to obtain and rely on objective proof of a client’s capacity for decision- making and/or of the legal representation of the client. We suggest development of a process that engages private professionals, such as doctors or lawyers, to provide the requisite degree of oversight and who could also provide a certification, be it of capacity or the validity of the power of attorney, for example. Legislation should provide that a financial institution could rely on this certification, thereby allowing the financial institution to discharge its obligations to its client with certainty and without the need for court proceedings.
During the consultations, the LCO heard concerns that unduly risk-averse approaches to assessment by service providers, or approaches that seem to be based on assumptions or stereotypes about certain groups of individuals, may have the effect of pushing individuals unnecessarily into formal substitute decision-making arrangements.
3. Examinations of Capacity to Manage Property under the Mental Health Act
Examinations of capacity to manage property under Part III of the MHA, were intended to provide a speedy and simple mechanism for ensuring that those admitted to psychiatric facilities did not lose their property due to their temporary inability to manage it. When a person is admitted to a psychiatric facility, an examination of capacity to manage property is mandatory, unless the person’s property is already under someone else’s management through a guardianship for property under the SDA or the physician has reasonable grounds to believe that the person has a continuing power of attorney that provides for the management of the person’s property. These examinations are performed by a treating physician, usually a psychiatrist. A re-examination of the patient may take place at any time while the patient is in the facility, and must do so prior to discharge. At the time of discharge, the certificate must either be canceled or a notice of continuance ordered.
A physician who determines that a person lacks capacity to manage property must issue a certificate of incapacity, which must be transmitted to the Public Guardian and Trustee (PGT). The PGT then becomes the patient’s statutory guardian of property, unless the patient has a POA that comes into effect upon incapacity. If the physician fails to re-examine the patient prior to discharge, the guardianship of the PGT or any replacement will terminate.
The MHA does not explicitly define incapacity to manage property, and the regulations offer no additional guidance in this regard. However, the definition set out in the SDA has been applied for the purposes of determining the capacity to manage property under the MHA.
Patients admitted to a psychiatric facility are not entitled to refuse the examination to determine their capacity to manage property. However, they are afforded substantial procedural rights, including:
- the right to receive notice that a certificate of incapacity has been issued;
- the right to timely provision of a rights adviser; and