A.    Background and Introduction

Part Two, Chapter I of this Paper considered approaches to and tests for “legal capacity”.  This Chapter focuses on the ways in which the concept of capacity has been operationalized, specifically through mechanisms for assessing capacity. That is, what systems and processes do we use to apply the statutory tests and determine whether or not a person has legal capacity? This includes the required qualifications for persons who assess capacity, the standards and requirements surrounding the capacity assessment, oversight of the capacity assessment process, and the rights and recourse available to those who are assessed.

Because capacity provides the threshold for the application of the decision-making and guardianship laws, the mechanisms that are in place for assessing it are central to their effective and just application. Capacity assessment mechanisms that are difficult to navigate, overly costly or insensitive to the needs of persons with disabilities and their families will reduce the ability of the system to address fluctuating or evolving capacity, and lead to the inappropriate application of the law. For example, accessible and meaningful mechanisms for capacity assessment are essential to the ability of persons under guardianship or powers of attorney to assert their abilities and their autonomy. Capacity assessments that are of poor quality or offer inadequate procedural protections may lead to the removal of rights and autonomy from persons who are capable of making their own decisions.

It is important to keep in mind that capacity assessments may be triggered for a range of reasons, not all of them based on a strong understanding of the purpose and possibilities of the legislation. Families may unrealistically hope that a capacity assessment will somehow solve difficult practical or ethical issues. Some parents of young adults with developmental disabilities may incorrectly believe that guardianship is a necessary and inevitable next step as their child nears adulthood. Professionals may also misunderstand what can be achieved through a capacity assessment process. This is a challenge for those given the task of assessing capacity.

Capacity assessment is in many cases the entry point to the Substitute Decisions Act (SDA) or the Health Care Consent Act (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. 

The focus of this Chapter is on requirements relating to assessment of statutory tests for capacity, that is, processes under Part III of the Mental Health Act (MHA), the Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA).  Legal capacity is commonly assessed in many other contexts – for example, lawyers must assess the capacity of clients to instruct counsel – but these assessments fall outside the scope of this project.

Ontario’s mechanisms for assessing capacity include “Capacity Evaluations” under the HCCA, “Capacity Assessments” for property and personal care under the SDA, and “Examinations for Capacity” under the MHA, as well as less formal mechanisms for assessing capacity to consent to treatment or to create a power of attorney (POA). When this Chapter refers to “capacity assessment” or “assessing capacity”, it includes all Ontario mechanisms for assessing capacity, unless it is otherwise specified. When the Chapter refers to “Capacity Assessments”, it is referring specifically to assessments carried out under the SDA regarding property and personal care.

As was outlined in Part Two, Chapter I, legal capacity is a multidimensional concept: it is not surprising that it is difficult to develop meaningful and effective systems for assessing it. It should be acknowledged at the outset that there is no perfect system for assessing capacity, although there are certainly better and worse ones.

There are a number of different approaches to capacity, as was discussed in the previous Chapter. The processes for assessing capacity will of course be closely linked to the underlying concept of capacity which the processes are intended to apply. The process for assessing capacity under a status-based model (such as one based on a medical diagnosis) would necessarily be considerably different from that under a functional or cognitive model (such as an “understand and appreciate” test), which would differ again from a process that reflected a concept of capacity based on a non-cognitive model such as “will and intent”. Ontario’s current legislative framework is based on a cognitive model of capacity. If Ontario were to shift towards a non-cognitive model, there would be very significant ramifications for its capacity assessment systems, particularly for the decision as to who assesses capacity.

However, all capacity assessment systems must grapple with certain fundamental issues. Is the selected method of assessment appropriate for the particular context or for this particular purpose? What kind of recourse should be available to an individual who disagrees with the results of a capacity assessment? How often should capacity be reassessed? What kinds of skills or knowledge should people who assess capacity have? What kind of information or supports should persons who are being assessed expect? What are the barriers to capacity assessment? How can vital procedural protections and supports be appropriately balanced with resource limitations and needs for efficiency?

In applying a principles-based approach to the law of legal capacity, decision-making and guardianship, it is important to keep in mind that the principles are equally applicable to the “procedural” aspects of the law (such as capacity assessment mechanisms), as to the “substantive” provisions. For example, effective mechanisms for complaint and redress are essential to respecting the dignity and worth of those affected by the law; processes should be designed in a way that reflects diversity in ability and other characteristics; the autonomy and independence of persons affected should be promoted through the provision of information and supports that are sufficient to ensure meaningful choice.

 

B.    Challenges in Developing Effective Mechanisms for Assessing Capacity

In writings related to capacity assessment mechanisms, there are a number of recurring themes or concerns, which may be helpful to keep in mind when reviewing Ontario’s capacity assessment mechanisms and considering potential reforms. These issues must be addressed by any capacity assessment system.

1.     The challenges of translating the concept of capacity into practical terms

As the Victorian Law Reform Commission noted in its 2012 Final Report on Guardianship, capacity assessment is, by its nature, challenging:

Assessing capacity is a very complex undertaking. There are no definitive, objective tests and relatively few professionals are specially trained to conduct capacity assessments. Professionals with decades of experience have suggested to the Commission that capacity assessment actually gets harder over time, as practitioners become more aware of the complex and individualised nature of cognitive ability and inability.[159]

The slippery and multi-dimensional nature of the concept of capacity means that its application will always be challenging. Assessments of capacity, if they are properly engaged in, are not simple, cut-and-dried endeavours. While there will be individuals who clearly either do or do not meet the threshold, there will also be a significant number of individuals who fall within a grey zone or whose abilities require considerable care to determine. Because the consequences of a determination with respect to capacity are so significant, there is an added pressure to “get it right”. Capacity assessment mechanisms must therefore carry a heavy burden: given the stakes and the possibility of error, it is important to have a process that is transparent, fair and perceived to be fair, and open to correction. Given the risks of abuse or other negative outcomes where a person lacks capacity and requires the supports provided by legislation, it is also important that the process be reasonably timely.

As well, given how closely assessments of capacity are tied to the operation of complex and overburdened systems such as hospitals, long-term care and social services for vulnerable individuals, there is also pressure to ensure that the mechanisms for assessments provide efficiency and certainty for those charged with providing services and operating these systems. The challenges in designing capacity assessment mechanisms that appropriately balance all of these factors are significant. 

 

2.     Who should assess capacity?

The complex and multi-faceted nature of capacity assessment naturally raises the question of what type of person should carry out assessments, and what qualifications, training and standards they should be required to maintain.

The type of answer that one provides to this question is intimately linked to the concept of capacity that one adopts. A concept of capacity that centres on the ability of an individual to evince “will and intent” will tend to lead away from specialized experts, and towards those who have a profound and intimate knowledge of the person in question – those who are able to “read” the actions and reactions of the individual to see intention and preferences. A concept of capacity that focuses on cognition will point towards the employment of those who have specialized knowledge of cognitive abilities and how they may be evinced – that is, experts in health related professions. Since most common-law jurisdictions appear to have adopted some form of a functional or cognitive approach to capacity, it is not surprising that there is generally a tendency to place the assessment of capacity largely in the hands of health professionals. Capacity is a legal threshold with a defined legal test; however, initial determinations are often made by health professionals, and where determinations of legal capacity are reviewed by tribunals or courts, considerable weight will be given to medical evidence.

In light of this dynamic, it is worth noting that the province of Alberta, in its recent reforms to guardianship law, explicitly created room for non-professional assessment of capacity in some circumstances. Under the Personal Directives Act, an individual, when making a personal directive, can designate a person or persons to assess capacity (the ability to understand and appreciate the relevant information) for the purpose of determining when the directive comes into effect.[160] This might include family or a trusted friend.[161] This person or persons must consult with a physician or psychologist in making a determination of capacity, and complete a detailed form, as must the consulting professional.[162] Where no person is named in the personal directive, the assessment of capacity must be carried out by two service providers, one of whom must be a physician or psychologist.[163]

Ontario’s current approach to capacity is cognitive, and, as described below, is heavily professionalized. Weisstub refers to this in the Final Report on the 1990 Enquiry on Mental Competency, stating that “Almost all submissions which addressed the point suggested that physicians ought to have a central role in the process, although there was broad agreement that the guidelines now extant for the exercise of physician discretion were not clear enough”.[164]

Because Ontario’s approach to capacity is cognitive – whether or not a particular individual at a particular time is able to make specific decisions – in theory at least, specific expertise may not necessarily be required to determine whether an individual has legal capacity in a particular area. In Ontario law, some capacity assessments require specialized professionals, while others, such as assessment of capacity to make a POA, do not. In many cases, those interacting with persons whose legal capacity may be in doubt are not necessarily experts in this area of the law, or in the social and medical aspects of the concept of capacity. However, because the concept draws on a variety of medical, psychological and social disciplines, there is a tendency to rely on specialized expertise for assessing capacity, even where the use of such specia