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 following recommendations with respect to Ontario’s approach to legal capacity, which were ultimately reflected in the provisions of the SDA and HCCA.
- Legislative presumption of capacity: codification of the common-law presumption of capacity and placing the burden of proof on the party asserting incapacity, with a standard of proof of the balance of probabilities. Both the SDA and HCCA make explicit the presumption of capacity. Legal capacity can only be removed through specific mechanisms outlined in the legislation, and subject to robust procedural rights. Where capacity is in doubt, the presumption must operate in favour of capacity, until these processes have been completed.
- Functional basis for assessment of capacity: basing the assessment of decisional capacity on the specific functional requirements of that particular decision, rather than on the assessment of an individual’s abilities in the abstract, the individual’s status or the probably outcome of the individual’s choice.
- Domain or decision-specific capacity: avoiding a global approach to capacity, so that determinations of capacity are restricted to the assessment of capacity to make a specific decision or type of decision. As is described below, the SDA and HCCA provide specific tests of capacity for property management, personal care, creation of powers of attorney for property and for personal care, and consent to treatment, personal assistance services provided in a long-term care home and admission to long-term care.
- The “understand and appreciate” test: Weisstub recommended that tests for capacity be based on the individual’s ability to understand the particular information relevant to that decision, and to appreciate the consequences of making that decision. It is worth emphasizing that the understand and appreciate test focuses on the ability to process information and to reason, as opposed to actual understanding and appreciation. There may be a variety of reasons for a lack of actual understanding or appreciation that may not be related to the ability to understand or appreciate. Weisstub notes the importance of this distinction for “patients who would be able to understand their situation if sedated somewhat less, or, of course, for those who have not received complete information about their situation”.
- Time limited determinations of capacity: since capacity may vary or fluctuate over time, Weisstub recommended that the validity of any one determination of incapacity be limited to the period during which, on clinical assessment, no significant change in capacity is likely to occur.
2. Statutory Tests for Capacity in Ontario
The SDA and HCCA include multiple tests for capacity, reflecting the domain/decision specific approach advocated in the Weisstub Report. While all are variants on the “understand and appreciate” test, in practice the requirements for meeting the test may be substantially different: for example, the information that must be understood and appreciated to create a power of attorney for personal care is substantially different (and less rigorous) from what must be understood and appreciated for managing property. In this way, the “understand and appreciate test” can operate with great flexibility, responding to application in different contexts and for different purposes. However, the underlying basis for the test – the requirement to understand and appreciate particular information – is consistent and coherent across the various areas.
It should be noted, however, that some statutory provisions refer to capacity, while others refer to incapacity. Health care practitioners, for example, have an affirmative duty to take reasonable steps to ensure that the person is capable and has given consent. The HCCA therefore defines “capacity”. Similarly, under the SDA, grantors must have capacity in order to create a valid POA. On the other hand, for the management of property and personal care, statutory guardianship and POAPCs take effect only when the person is assessed as incapable and the definitions in the statute are for incapacity, reflecting the different dynamics of these decision-making domains.
Ontario’s statutory tests for legal capacity and incapacity are set out below.
Management of property (SDA): A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Powers of attorney for property (SDA): To have capacity to create a valid power of attorney (POA) for property, the individual must:
- Know what property he or she has, and its approximate value;
- Be aware of obligations owed to her or his dependents;
- Know the powers that the attorney will have;
- Know that the attorney must account for her or his dealings with the property;
- Know that he or she can revoke the power of attorney, if capable;
- Appreciate that if the attorney does not manage the property well, its value may decline; and
- Appreciate that the attorney might misuse the authority granted.
Powers of attorney for personal care (SDA): To create a valid POA for personal care, the individual must have the ability to understand whether the proposed attorney has a genuine concern for her or his welfare, and appreciate that the individual may need to have the proposed attorney make decisions for her or him.
Personal care (SDA): a person is incapable with respect to personal care if he or she is unable to understand information relevant to making a decision concerning her or his “health care, nutrition, shelter, clothing, hygiene or safety”, or to appreciate the reasonably foreseeable consequences of making or not making a decision.
Treatment, admission to long-term care, and personal assistance services (HCCA): To be capable with respect to these decisions, the individual must understand “the information that is relevant to making a decision” about treatment, admission to long-term care, or personal assistance, and appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
3. Challenges in Operationalizing This Approach to Capacity
The concept of “capacity” is complex, and so it is not surprising that it is difficult to implement. As was emphasized throughout the LCO’s preliminary consultations, the operationalization of the concept of capacity may differ significantly from legal theory and requirements. This section focuses on challenges to the operationalization of capacity that are arguably inherent to the conceptual approach that Ontario has selected. The following chapter will examine at length the actual systems and requirements for the capacity assessment process.
Distinguishing “ability “from “actual” understanding and appreciation: The distinction between the ability to understand and appreciate and actual understanding and appreciation is “subtle but important”. Theoretically, the use of the auxiliary verb “is able” in the capacity test allows for more patients to pass the test as they must only display the potential for understanding and appreciating, and need not reach the level of actual understanding/appreciating. As such, this interpretation of the test is meant to protect the patient from, for example, not being able to understand the information due to poor explanation from a physician, or being better able to understand if under less sedation. The individual may weigh or value the information differently than does the professional and may disagree with the recommendation, but so long as she or he appreciates the parameters of the decision to be made, that amounts to an ability to appreciate.
As the Supreme Court of Canada noted in Starson v Swayze, described below,
While the difference between ability to understand and appreciate and actual understanding and appreciation is easily stated, it may be less easy to apply in practice. Capacity is an abstract concept. The primary means of ascertaining capacity or ability, in any context, is to look at what an individual in fact says and does.
In practice, there is some question as to whether assessment can always adequately distinguish between the two. According to Jessica Berg, when it comes to testing patients for their “ability” to understand, clinicians are, in reality, testing for actual understanding. The patient is posed with questions about the risks, benefits, and alternatives to treatment, and the physician continuously provides more information while trying to notice if the patient comprehends the information. Recognizing the difference between ability to understand in this scenario and actual understanding seems to be difficult. Since the same testing process is used when testing for ability to appreciate, the same difficulty in recognizing the distinction between “ability” and “actual” arises.
Appreciating consequences: Some commentators have raised concerns about the ability to effectively apply the “appreciation” branch of the test in practice. The Supreme Court of Canada has considered and set out the “appreciation” requirement in Starson v Swayze in some detail. Starson had applied to the CCB for review of a physician determination that he lacked legal capacity with respect to treatment, and subsequently sought review of the CCB’s decision to uphold the physician’s determination. The case turned on Starson’s ability to appreciate the consequences of his decision with respect to treatment. The SCC ruled that this branch of the test “requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof”. This requires the individual to be able to be able to apply the relevant information to his or her own circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack of decision. The individual need not agree with the diagnosis in order to apply the relevant information to his or her own circumstances, but must be able to recognize the possibility that he is affected by the manifestations of his condition.
The majority of the SCC found that Starson was capable with respect to treatment on the basis that while Starson did not conceive of his condition as an illness, he conceded that his brain did not function normally and understood the intended effects of the proposed medication. The dissent, on the other hand, stated that while Starson did not deny all of his difficulties and symptoms, he did not see them as an illness or a problem relevant to the proposals for treatment.
One academic, Monique Dull has argued that an examination of the caselaw following the Supreme Court of Canada decision in Starson v Swayze indicates that in practice, decisions by the courts have in a number of instances, while not explicitly abandoning the approach set out by the majority in Starson, in practice applied a higher threshold to the “ability to appreciate” than was applied in that case. Dull argues that this case review demonstrates that subsequent decisions applying the capacity test are tending to justify their findings of incapacity by striving to uncover factual distinctions from Starson where none really exist. In effect, she argues that subsequent decisions are substantively following the dissent’s higher threshold standard in Starson, even while claiming to follow the majority’s lower threshold standard.
One stakeholder commented to the LCO that there was some risk of the “appreciation” requirement collapsing into an outcomes-based test for capacity, as in practice it may be difficult to distinguish between an inability to appreciate the consequences of a decision and an assessment of the nature and level of risk that differs from that of the person assessing.
Challenges in addressing fluctuating levels of capacity: Legal capacity as it is defined and understood in Ontario can be a fluctuating quality, so that an individual who lacks legal capacity at one time may have capacity at another time. This reflects the rejection of a status-based approach to legal capacity, something that is generally lauded, as well as the recognition that capacity is domain-specific and contextual. However, one effect of this approach to capacity is difficulty in its use as a legal threshold for decision-making domains. This is not an issue to the same degree in the realm of health care consent, where capacity, at least as the law is written, is generally reassessed for each decision, but does raise issues for those areas where legal incapacity has longer-term consequences, such as when it triggers the operation of a power of attorney or the appointment of a guardian. Guardianship is, by its nature, a relatively costly and complex process. Where loss of legal capacity is temporary or episodic, it may be relatively difficult to ensure that substitute decision-making structures are in place only where they are truly necessary.
Ontario’s operationalization of its concept of capacity may therefore be uneven, and in practice maintain aspects of status or outcome-based approaches that the legislation on paper clearly rejects.
4. The Human Rights Critique
Cognitive approaches to capacity were adopted, in part, as more closely adhering to human rights concepts, particularly in moving away from the stereotypical and medicalized assumptions that underlie the status approach, and what many felt was the excessive paternalism of an outcomes based approach. However, the functional and cognitive approach adopted in Ontario’s current legislation scheme is also the subject of human rights critiques, with some arguing that it is incompatible with the provisions of the CRPD, which was described in Part One, Chapter I.
Some have argued that any functional approach to capacity is incompatible with a disability-rights lens, in that the right to make decisions should not be restricted on the basis of diversity in some capabilities associated with some types of disabilities, and that these types of distinctions are discriminatory.
Others argue that the type of cognitively based test for capacity adopted in Ontario disproportionately disadvantages persons with intellectual, language, cognitive and psychosocial disabilities, and is improperly based on medically defined cognitive abilities (and in this sense retains many of the problematic aspects of a status-based approach). As noted above, the “understand and appreciate” test creates a threshold for who can and cannot make decisions for themselves based on cognitive abilities. Thus, although it is not a disability-based test, it will have a disproportionate effect on individuals whose disability affects their cognitive abilities, such as persons with intellectual, mental health or neurological disabilities. Individuals without disabilities will certainly be affected, but the majority of those who are found to be unable to understand and appreciate the requisite information for a particular type of decision will be individuals with some type of disability that has recurrent or ongoing effects on their cognition.
It is further argued that cognitive and functional approaches do not take into account that we all tend to be interdependent, and to make decisions in consultation with and with support from others whom we trust and who are close to us. As Bach and Kerzner have stated, “We do not exercise our self-determination as isolated, individual selves, but rather ‘relationally’, interdependently and intersubjectively with others.” These relationships and supports towards autonomy, although important to us all, are particularly important to persons who have disabilities related to communication and understanding. Through these relationships and supports, it is argued, individuals who may not on their own be able to achieve a competent decision-making process can do so in cooperation with others. In this view, a cognitive approach to capacity places the individual in isolation and ignores the network of supports and relationships that may support a strong decision-making process.
As well, it is argued that a cognitive approach does not sufficiently value other attributes that people employ to make decisions, such as preferences, emotions and intuition. Bach and Kerzner have argued that intention is the basis of human action and reflects human agency, and that the foundation for capacity to make decisions should lie, not in cognition, but in the ability of individuals to express intent or make evident their will in a way that can guide those who know them well. Will and intent can be communicated through behaviour as well as language.
C. Standards and Tests for Legal Capacity: Options for Reform
Given these challenges to Ontario’s approach to and tests for capacity, what are the options for reform? There are two main approaches to reform: making adjustments to the current cognitive approach, or adopting alternative approaches that attempt to address the fundamental critiques of cognitive approaches. It is important to keep in mind that it is possible for Ontario to incorporate into its legislation more than one approach. That is, it is possible that there may be some situations where a cognitively-based approach is most appropriate and others where an alternative approach is the best way to reach the goals of the law. Though this would certainly add complexity to an already complicated legislative scheme, Ontario does already set different tests for capacity for different types of decisions.
1. Adjustments to Cognitively-Based Capacity Tests
The “understand and appreciate” test, together with other hallmarks of a functional approach to capacity, such as decision-specific assessments, a presumption in favour of capacity, and a focus on abilities rather than outcomes, is found in many common law jurisdictions, including the United States, Australia and the United Kingdom, and other Canadian jurisdictions.
As was detailed above, while all of Ontario’s capacity tests are based in the “understand and appreciate” test, the legislation takes pains to specify exactly what information must be “understood and appreciated”. Some jurisdictions do not include in the legislation particular requirements for what must be understood and appreciated, but simply employ a broad requirement that the individual must understand the information relevant to the decision and appreciate the reasonably foreseeable consequences of a decision or lack of decision, leaving to the assessment process the application of the test to specific contexts. This has the benefit of simplicity and flexibility, but leaves to the expertise and judgment of assessors the determination of what information must be understood and appreciated.
Some jurisdictions provide further amplification in the statute as to the requirements for “understanding” or “appreciating”. For example, in the United Kingdom, the Mental Capacity Act 2005 (UK) specifies that a person is unable to make a decision if he or she is unable to:
- understand the information relevant to the decision;
- retain that information;
- use or weigh that information as part of the process of making the decision.
This adds some clarity to the test, particularly in terms of what is intended by the ability to “appreciate” the relevant information. In a similar fashion, it might be desirable to amend Ontario’s test to specifically include the ability to “apply the relevant information to his or her circumstances” and to “weigh the foreseeable risks and benefits of a decision or lack thereof”, (to use the language of the Supreme Court of Canada in Starson v Swayze).
The test for capacity under the SDA is considerably amplified and illuminated in the Ministry of the Attorney General’s capacity assessment guidelines, which capacity assessors under the SDA are required to use in their assessments (as is further outlined in the following Chapter). These guidelines include key tenets for capacity assessment, and clarification of the terms “understand” and “appreciate”. For example, the Guidelines make clear that assessments of capacity must give consideration “not only to what the individual can accomplish, but to whether the person acknowledges any personal limitations, knows his or her options, and has considered the merits of obtaining appropriate assistance to meet his or her decision-making needs”. As another example, the Guidelines emphasize that when assessing an individual with factual knowledge deficits, the assessor must consider whether the person has been exposed to the necessary training or learning opportunities to acquire the relevant facts. Given that the Guidelines apply only to capacity assessors under the SDA, the importance of assessments of capacity, and the confusion related to capacity that was identified by many of those that the LCO spoke with, it may be useful to consider whether some of the clarifications of the tests for capacity in the Guidelines might usefully be incorporated into the statute or regulations, or applied to other mechanisms for assessing capacity.
- QUESTION FOR CONSIDERATION: Are there specific ways in which the current “understand and appreciate” test for legal capacity should be clarified in order to improve its application? Or are there other means through which further guidance on its proper application could be provided? Are there specific ways in which the legislative test should be amended so that it better reflects the social and contextual aspects of legal capacity?
2. A Non-Cognitive Approach: The “Will and Intent” Test
Other potential approaches to capacity have been identified that would not simply make adjustments to the “understand and appreciate” test, but would move the test for capacity in a significantly new direction. These maintain the concept of capacity, but attempt to rework it in a way that broadens it to include persons with disabilities that may disproportionately affect their status under current laws relating to legal capacity and guardianship.
Michael Bach and Lana Kerzner, in developing a thoroughly elaborated proposal for a paradigm shift in capacity and guardianship law, propose a move away from the rationality-based “understand and appreciate” test to one that focuses on the concepts of “will and intention” as the basis for human agency and action. Bach and Kerzner define these proposed criteria for decision-making ability as:
1) My capacity to express my will and/or intentions, at least to others who know me well, and who can then ‘confer’ or ascribe agency to my actions in their descriptions of me to others; and
2) Being able to tell ‘who’ I am, my life story of values, aims, needs and challenges, or having my community of knowing and valuing others do that for me, and using that narrative coherence of my life to help direct the decisions that give effect to my intentions. …
This minimum threshold of human agency we might characterize as: to act in a way that at least one other person who has personal knowledge of an individual can reasonably ascribe to one’s actions, personal will and/or intentions, memory, coherence through time, and communicative abilities to that effect.
In a somewhat similar fashion, the British Columbia Representation Agreement Act provides that in deciding whether an individual is incapable of making, changing or revoking a standard representation agreement, all relevant factors must be considered, including:
(a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions;
(b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
(c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;
(d) whether the adult has a relationship with the representative that is characterized by trust.
This standard is for the most part non-cognitive, based as it is on the ability of the individual to indicate choices and preferences and to express trust. It does require the adult to be “aware” of some of the potential effects of a representation agreement. In this way, it is more rigorous or exclusive than the standard proposed by Bach and Kerzner, although it has some important commonalities.
A legal capacity test based on some version of will and intention would mark a radical departure from Ontario’s current cognitive approach. Careful thought would be required as to who would assess capacity based on such a test, and what types of procedural safeguards and supports would be appropriate. It would also have broader implications for who might act in a decision-making context, and the types of safeguards required to detect and address abuse. As is discussed in Part Three, Chapter II, such an approach also raises questions regarding individuals who do not currently have the kind of close and trusting relationships that are fundamental to this proposal. Proposals related to “will and intention” tests for legal capacity are generally part of a broader advocacy for the inclusion of supported decision-making approaches in laws related to legal capacity, decision-making and guardianship. These approaches and their implications are described at length in Part Three, Chapter I of this Paper.
- QUESTION FOR CONSIDERATION: Should a test for legal capacity based on “will and intention” of the individual be adopted for some or all aspects of Ontario’s decision-making and guardianship laws? If so, in what circumstances would such a test be appropriate, and how would this standard for capacity be assessed?
3. Some Practical Considerations for Reform
In considering reforms to Ontario’s approach to or tests for capacity, it is important to keep in mind both the advantages of simplicity and comprehensibility in a single, unified approach, and the possibilities for addressing diversity and providing nuance through approaches or tests tailored to specific circumstances.
In considering the merits of any test for capacity, its implications for operationalization must be taken into account. For any particular test of capacity, how would it be measured? Who would carry out the assessment? What kinds of processes would be appropriate? The account of Ontario’s current capacity assessment mechanisms in the following chapter of this Paper highlights the complexities and challenges of putting concepts of capacity into practice.
It is also essential to keep in mind that understandings of capacity are intimately connected with understandings of disability, aging, autonomy and accountability. While legislation can have influence in shifting norms, the experience with Ontario’s current legislation highlights the challenges: stakeholders have emphasized how slow and still incomplete has been the process of shifting from status and outcome based approaches to capacity to a functional and cognitive approach. Effective changes to capacity approaches or tests will require changes to attitudes, and will require extensive and persistent training and education, as well as support from shifts in broader cultural attitudes.
D. Questions for Consideration
- What are the most important implications of the Framework principles for the approaches to and standards for legal capacity in Ontario law?
- Are there specific ways in which the current “ability to understand and appreciate” test for legal capacity should be clarified in order to improve its implementation? Or are there other means through which practical guidance on its application could be provide? Are there specific ways in which the legislative test should be amended to better reflect the social and contextual aspects of legal capacity?
- Should a test for legal capacity based on “will and intention” of the individual be adopted for some or all aspects of Ontario’s decision-making and guardianship laws? If so, in what circumstances would such a test be appropriate, and how would this standard for capacity be assessed?
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