The concept of “capacity” is foundational to the law related to decision-making. Under both the Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA), where a decision must be made and an individual is found to lack the “capacity” to make that decision or that kind of decision, a substitute decision-maker (SDM) must do so in his or her place. Generally, persons who are considered to have capacity are entitled to make decisions for themselves and are held responsible for those decisions, including decisions that others may consider reckless or unwise. On the other hand, persons who have been determined to lack legal capacity in a particular domain or for a particular decision may lose the right to make decisions for themselves independently in that area: others will be responsible for making decisions on their behalf, and can in theory be held accountable for how those decisions are made. The implications for an individual of a determination of legal capacity are therefore momentous.
1. The Concept of Capacity
The concept of capacity is both complex and contested. The term has been understood in different ways at different times and places. It has been said that “there are as many different operational definitions of mental (in)capacity as there are jurisdictions.” To further complicate matters, there are multiple terms, such as “mental capacity” ”competence”, “decision-making ability” (and their opposites, including “mental incapacity” and “incompetence”), which are sometimes used as synonyms or near synonyms of “capacity”, and sometimes used to make important conceptual distinctions. For instance, “competency” may denote “acceptable” behaviour, the ability to take on tasks, standing in a legal proceeding, or a cognitive process of decision-making.
As a legal construct, capacity must be understood as a “socio-legal” concept, to adopt the language of the Weisstub Report. As Prof. Lawrence Frolik has stated, “incapacity exists only after we define it”. In other words, governments regulate the meaning of “capacity” with a view to meeting goals that are informed by our social needs and values: it is an operational construct, the criteria for which vary. Understandings of and approaches to the concept of capacity have varied over time, and will no doubt continue to evolve.
The concept of capacity is closely connected to other important and difficult concepts. It is strongly related to conceptions of autonomy and independence, in that it is intimately tied to the ability to make independent decisions and take responsibility for their consequences. Margaret Hall notes,
Capacity, in law, serves as the effective threshold of autonomy, dividing the autonomous, on the one side, from the non-autonomous, on the other, on the basis of an individual’s ability to engage in the process of rational (and therefore autonomous) thought, explained as the ability to exercise one’s will to reflect upon, and choose between desires, and to adopt those chosen as one’s “own”.
In practical terms, a determination of incapacity legitimates intervention in the life of the individual so identified. Sabatino and Wood argue that capacity is a “legal fiction” necessary to “tell us when a state legitimately may intrude into an individual’s affairs and take action to limit an individual’s rights to make decisions about his or her own person or property”. It is closely related to our assessments of and tolerance for, not only risk but actual harm to individuals who are marginalized or disadvantaged. As such, it is also linked to notions about the role of the state in protecting those who are vulnerable. As Hiltz and Szigeti note, “Once we become sufficiently incapacitated that we or others are at serious risk of harm, the State owes us a duty to protect our interests and that of the community. The legislation [in this area] governs how these protections are afforded to incapable persons”.
The concept of capacity must be understood in the context of the lives of those it most profoundly affects: those persons, older or younger, who live with a disability that affects their ability to independently receive, understand, assess and retain information, and those who are presumed to have impairments in such abilities. Because the lives of persons with disabilities and older persons have been historically and continue to be heavily marked by paternalism, negative assumptions about their abilities and restrictions on their independence, the concept of capacity and the particular ways in which it is operationalized are heavily freighted. The disability rights and elder rights movements have been driven in large part by an effort to assert the right to control their own lives and to reassert their dignity and full human worth, and so conceptions of capacity take on a fundamental importance, both practically and as representations of the rights and status accorded to these groups.
2. Legal Capacity and the Framework Principles
As the above brief introduction makes clear, the concept of capacity is intimately tied to all of the Framework principles, affecting as it does aspirations to and understandings of dignity, autonomy, inclusion, diversity, security, and the ways in which we relate to and are held accountable to others.
As discussed previously, debates about capacity and how it is defined are often described in terms of competing principles of autonomy and “beneficience” or safety. While it is useful to consider tensions between principles, it may be unhelpful to reduce the issue to a zero-sum competition between two principles, where increased focus on safety inevitably reduces autonomy or vice versa. Such a framing distracts attention from the ways in which autonomy and security are profoundly linked, as well as from the important contributions of other principles to understanding the issues in this area. For example, the principle of participation and inclusion can help us in thinking about the effects of the social and economic marginalization of older persons and persons with disabilities on their ability to access supports in making choices and on the availability of concerned and involved individuals to monitor for abuse or exploitation.
The principles of diversity (as defined somewhat differently in each Framework), together with the focus of the Frameworks on the importance of lived experience in understanding the principles, reminds us that the experiences and needs of persons who may be affected by this area of the law will vary significantly: in adopting approaches to and standards for capacity, these differences must be taken into account, to the extent possible.
As well, both Frameworks emphasize the importance of the implementation gap both in understanding the operation of the law in the lives of those affected and in designing law reform. The LCO’s preliminary discussions and consultations have highlighted the enormous gap that may exist between the abstract concepts captured in the statute and the everyday understanding and implementation of the law by individuals. Everyday practical needs and popular “common-sense” understandings of the law drive much of its current implementation. Because this area of the law relies so much on the efforts and understandings of private individuals, the gap between the statute and lived experience is wide, and is a challenge for law reform.
- QUESTION FOR CONSIDERATION: What are the most important implications of the Framework principles for the approaches to and standards for legal capacity in Ontario law?
3. A Few Words About Terminology
As was briefly noted above, the concept of capacity is a challenging one, with a convoluted history, so it is perhaps not surprising that the terminology surrounding this concept is complex. The terms are often value laden, and may themselves be points of controversy. Disentangling the terms is linked to disentangling the various approaches to the concept. Some key terms are briefly set out here.
“Legal Capacity”: In international documents, “legal capacity” has been treated as having two aspects: 1) the capacity to hold rights and obligations, and 2) the capacity to exercise those rights and obligations. Sometimes these two elements are referred to as “capacity to hold rights” and “capacity to act”. The first aspect may be considered as a “static element” that entitles individuals to recognition under the law as a bearer of specified rights and obligations, including a broad range of rights established in international treaties and domestic constitutional laws such as rights to equality, liberty, education, mobility, and so on. Historically, a number of groups, including women, have been excluded from the capacity to hold rights and obligations.
In common-law systems such as Canada’s, typically the status of legal capacity (the first element) is presumed, and the term “legal capacity” is reserved for the exercise of that capacity, that is, the second aspect identified above (the “capacity to act”). As the “static element” is not at issue in this project, unless otherwise specified, this Paper will use the term “legal capacity” as including both elements (what has sometimes been referred to as “full legal capacity”). The use of the term “legal capacity”, rather than simply referring to “capacity” (as is currently the usage in the SDA and HCCA) also serves to emphasize the socio-legal aspects of the concept.
“Mental Capacity”: The term “mental capacity” has sometimes been used in distinction to “legal capacity”. When used in this way, “legal capacity” refers to “full legal capacity” as described above, that is, the entitlement to hold and exercise certain legal rights and responsibilities, while “mental capacity” is used as a descriptor of the mental or cognitive abilities that have been identified as pre-requisites to the exercise of legal capacity.
“Competence”: The term “competence” or “mental competence” was used historically in Ontario, and remains in use in other jurisdictions. The term “competence” was explicitly rejected by Weisstub in his Report, in favour of the term “capacity”, in order to “minimize the unwanted and unintended intrusion of social stigma, and to more clearly focus attention on functional parameters and the abilities of the person in the context of the decision to be made”. The LCO will not use the term “competence” in referring to the Ontario system, but will do so as appropriate in discussing other jurisdictions that continue to employ the term.
4. Approaches to Capacity
Approaches to capacity have generally been divided into three broad types (although various legislative schemes may combine elements of these approaches): status, outcome and functional. The status and outcome approaches were historically predominant. Most modern capacity and guardianship legislation adopts some version of a functional approach, although elements of the status and outcome approaches arguably continue to influence capacity assessment in practice. A fourth approach, the “will and intent” approach has been raised as an alternative, and will be discussed later in this Chapter.
A “status” approach to the concept of capacity identifies capacity with the presence or absence of particular conditions or disabilities. Under a “status” approach, the presence of a particular disability, such as, for example, dementia, schizophrenia or Downs Syndrome would be associated with a lack of legal capacity. A status approach underlay much of historical guardianship laws, with the status of being a “lunatic” or “idiot” resulting in the appointment of a guardian of some sort. Under this approach, capacity is essentially identical with a medical diagnosis and the identification of disability. This tends to be a pure all-or-nothing approach, is not specific to particular types of decisions, and is unhelpful in addressing conditions that are episodic or where abilities may fluctuate. Historically, status-based approaches to capacity were common. Pure status approaches to capacity are less common today, although some jurisdictions retain a combined approach that includes a diagnosis of disability as part of a broader definition of incapacity. A status-based approach was rejected in the Weisstub Report and Ontario’s legislative language does not support such an approach. It is difficult to see how a pure status-based approach could be made consistent with the provisions of the Convention on the Rights of Persons with Disabilities (CRPD), as was briefly discussed in Part One, Chapter I. In practice, persistent attitudes about certain types of disabilities may lead to inappropriate presumptions of incapacity, and thus may influence the application of capacity assessments.
“Outcome” approaches to capacity focus on whether the individual in question is making “good” decisions – that is, whether the decisions that the individual is making are within the bounds of what might be considered reasonable. This is approach is not the basis for modern capacity and guardianship regimes and it generally rejected as a legal approach, because of its inherent paternalism. However, on a practical level, there may be a tendency for family members or service providers to apply some version of an outcome test in assessing the capacity of an individual to make decisions, so that the application of the law may be affected by outcomes-based mindsets, a concern that was raised by several stakeholders during the LCO’s initial consultations.
Functional and Cognitive Approaches
Contemporary approaches to capacity generally adopt some version of a “functional” or “cognitive” approach. The Queensland Law Reform Commission has described this approach as follows:
The functional approach is based on the cognitive (functional) ability to make a specific decision, including a specific type of decision, at the time the decision is to be made. It focuses on the reasoning process involved in making decisions. This encapsulates the abilities to understand, retain and evaluate the information relevant to the decision (including its likely consequences) and to weigh that information in the balance to reach a decision.
This is the dominant approach in contemporary legal tests of capacity. As will be discussed below, Ontario’s legislation reflects a highly developed version of a cognitive functional approach to capacity.
B. Standards and Tests for Capacity in Ontario Law
1. Key Elements of Ontario’s Current Approach to Legal Capacity
Ontario’s approach to legal capacity has its roots in the 1990 Weisstub Report, which was briefly introduced in Part One, Chapter I of this Paper. This Report made the f