A. Introduction
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.”[112] 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.[113]
As a legal construct, capacity must be understood as a “socio-legal” concept, to adopt the language of the Weisstub Report.[114] As Prof. Lawrence Frolik has stated, “incapacity exists only after we define it”.[115] 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”.[116]
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”.[117] 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”.[118]
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. B