II. Systems for Assessing Capacity

II. Systems for Assessing Capacity2017-03-03T21:48:04+00:00

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 specialized expertise is not required by law.[165]

The level of professionalization required for assessing capacity draws mixed responses. For many who are not experts in this area, status or outcome approaches may seem “natural” and so pervasive gaps in awareness and understanding of the law may contribute to results that are not in harmony with Ontario’s approach to capacity. In less formal and regulated settings, assessments of capacity may still be based on or influenced by a medical diagnosis or outcomes (a de facto best interests test). As one commentator notes,

Conclusions about capacity and the right to make certain decisions are too often really backdoor assessments about the reasonableness of the decision rather than the capacity of the person to make it in the first place.[166]

These types of concerns may be seen to indicate the preferability of a more professionalized approach to capacity. However, persons with disabilities have often raised concerns about the medicalization of their experiences and the resultant control over their lives by medical professionals, arguing that a social and human rights understanding of the experience of disability is more appropriate. Such a critique may have some resonance with respect to the application of Ontario’s approach to capacity.

An emphasis on the decision-specific nature of capacity, such as is found in Ontario and many other jurisdictions, may point towards the employment of different knowledge or expertise for assessment of capacity in different subject areas. During the LCO’s preliminary consultations, some psychiatrists noted that doctors not infrequently attempted to obtain their opinion as to capacity to consent to some particular treatment, such as surgery; this is not only contrary to the current state of the law, which requires the person proposing treatment to ensure capacity to consent, but it was the view of the psychiatrists that it was the doctor proposing the treatment who was in the best position to understand whether the individual understood the nature and consequences of that particular proposed treatment.

In keeping with this, in many cases capacity assessments are carried out by professionals providing services, such as lawyers determining whether a client has capacity to instruct counsel, or create a will or a power of attorney. Service providers of all sorts, including financial and social service providers, must often informally assess the ability of an individual to enter into an agreement or provide consent.

The Mental Capacity Act 2005 (UK) takes this approach to its furthest logical extent: there is no system of designated capacity assessors or qualified professionals for certain assessments; rather, the question of who assesses capacity is determined by the specific circumstances in which the need to assess arises:

The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made. This means that different people will be involved in assessing someone’s capacity to make different decisions at different times. For most day-to-day decisions, this will be the person caring for them at the time a decision must be made. For example, a care worker might need to assess if the person can agree to being bathed. Then a district nurse might assess if the person can consent to have a dressing changed.[167]

Notably, under the Mental Capacity Act, for most day-to-day actions or decisions, where a person is found to be incapable, the decision will be made by the “carer” most directly involved with the person at the time, for example, health care staff responsible for carrying out the particular treatment or procedure.[168] In practice, this means that the person assessing capacity is often the person who will then make a decision on the person’s behalf and will provide care or service to the person. To redress the power imbalance that this may create, the legislation creates a system of “independent mental capacity advocates” who are appointed for persons who do not have informal supports or a Lasting Power of Attorney or deputy, and whose task is to obtain and evaluate all relevant information pertaining to the person’s wishes and feelings and report to the decision-maker; they also have the power to challenge a decision in regards to the person to whom they are assigned, including a decision regarding capacity.[169]

Linked to the question of qualifications for capacity assessment is that of standards and of training requirements. In some capacity assessment systems, medical or other health-related expertise is considered in itself sufficient training for capacity assessment, without the imposition of further standards (beyond the legal test for capacity) or training. As will be discussed below, Ontario’s requirements for Capacity Assessors under the SDA include testing, regular education requirements, and extensive explicit mandatory guidelines, and create one of the most formalized and comprehensive sets of requirements in the English-speaking world. The province of Alberta followed this lead in its recent reforms, requiring assessments by designated capacity assessors prior to court orders for guardianship, trusteeship or co-decision-making. These designated capacity assessors must meet specific educational or training requirements or both, and develop thoroughly documented capacity assessment reports.[170]

When considering who should assess capacity, another element to be considered is accessibility. Barriers to assessment may deter necessary assessments or re-assessments, putting autonomy or security at risk. An important element of accessibility is cost. For example, as referenced above, Capacity Assessments under the SDA are notable for the level of standards and training required. However, as they are a private service, there are costs associated with them. While Ontario’s Capacity Assessment Office (CAO) does have some ability to cover costs for low-income individuals, the funding for this program is relatively limited, and for some Ontarians, the costs associated with one or more Capacity Assessments may be a deterrent. Concerns have been raised that this may lead to inappropriate use of Capacity Examinations under the MHA, or that persons with fluctuating or evolving levels of capacity may find themselves inappropriately categorized as either having or lacking legal capacity. 

Related to the issue of accessibility raised above is that of accommodation of the many forms of diversity found in a province as large, multicultural and multi-lingual as Ontario. Given the social and contextual aspects of the concept of capacity, it is important that assessors be equipped to be sensitive to and to take into account this diversity so that, for example, culturally specific behaviours are not misinterpreted as a signs of a lack of legal capacity. Carling-Rowland and Wahl comment with respect to communication and language barriers that,

By necessity the current capacity evaluation is highly dependent on the patient’s proficient use of language, because it is through the spoken or written word that we reveal our ability to take in and weigh information and formulate a response. People with communication barriers are particularly vulnerable to being … excluded from decision making because their inability to converse masks their inherent competence.[171]

Carling-Rowland and Wahl go on to note that while professional interpreters are impartial, have knowledge of culture and customs, and can be expected to follow policies regarding confidentiality, the same cannot be expected of ad hoc interpreters or family members, who are commonly used in the healthcare system.[172]

 

  • QUESTION FOR CONSIDERATION: How does the experience of capacity assessment differ depending on gender, sexual orientation, racialization, language, culture, socio-economic status, Aboriginal status, geographic location, various forms of disability, or other forms of diversity?

 

3.     Procedural protections for those assessed

An individual may experience an assessment of capacity as a significant invasion of privacy; for some it may be a very upsetting experience. Courts have recognized that a capacity assessment is an “intrusive and demeaning process”[173] and a “substantial intervention into the privacy and security of the individual”.[174] It also has very significant and long-term ramifications for the autonomy of the individual should it result in a finding that the individual lacks legal capacity. Accordingly, it is important that adequate procedural protections be associated with the assessment of capacity: “a certain basic respect must be paid to the client, the client’s knowledge of and right to control his or her body, and the client’s right to be informed of the processes being performed”.[175]

Of course, what are considered “adequate procedural protections” will vary depending on the context and the potential consequences of the particular assessment. An assessment that may result in guardianship and therefore has long-term implications for an individual’s autonomy may require more rigorous procedural protections than one that may result in a one-time treatment decision made by a substitute decision-maker; a one-time decision may have life-changing consequences, as with a decision regarding admission to long-term care. There may be opportunity for more extensive review where the need for decisions is less time-sensitive. Weisstub argued that:

Variations in the expected duration of an individual’s incapacity and in the extent and consequences of incapacity suggest that different procedures be employed in different contexts. In this regard it would be desirable to provide both full ‘due process’ and abbreviated versions of the procedure for decision making capacity determination.[176]

However, he recommended that when designing processes for capacity assessment, consideration be given in all cases to fundamental issues such as the following:

  • choice of assessor;
  • notice to the individual;
  • rights advice and right to counsel;
  • rights of appeal; and
  • the time period between reviews.

The Victorian Law Reform Commission emphasized in its Final Report the importance of ensuring that there is a valid trigger present to justify any capacity assessment, and taking steps to “engage the person in the assessment process by seeking agreement and informing the person about the process as far as possible”.[177]

Alberta legislation requires that there be a valid cause for concern in order to necessitate a capacity assessment, that is, an event that puts the individual or others at risk and that seems to be caused by an inability to make decisions.[178] Assessors must know the reason that a capacity assessment has been requested and familiarize themselves with the circumstances leading to the request.[179]

Alberta also includes a number of other novel statutory rights during the capacity assessment process, including rights to

  • have a person present during an assessment to assist the adult to feel comfortable and relaxed,
  • to have the assistance of an interpreter or use of a device to assist the person to communicate  and thereby fully demonstrate her or his capacity, and
  • to undergo the assessment at a time when and under circumstances in which the adult will be likely to be able to demonstrate his or her full capacity.[180]

4.     Ensuring flexible responses to changing levels of capacity

As is widely acknowledged, legal capacity may fluctuate over time. Some individuals will have a single brief episode where they lack legal capacity. Others will cycle in and out of legal capacity. Some who did not have legal capacity will develop it; and some who have had legal capacity will lose it. Because guardianship or forms of substitute decision-making are generally considered as significant intrusions on individual autonomy, it is important that individuals do not retain a status as legally lacking capacity when they do not. It is equally important, because of the significant risks that some individuals may face when independently making decisions for which they do not have capacity, that lack of legal capacity be identified when necessary.

It is therefore vital that legal processes surrounding assessment of capacity retain flexibility, so that individuals can be reassessed with reasonable ease. Weisstub noted, in the Final Report of the Enquiry on Mental Competency, that “as an individual’s capacity may change over time, it is agreed that a finding of capacity ought to be easily reviewable. A finding of legal incapacity should not be perpetual, but should merely extend as long as the actual incapacity of the subject persists.”[181] Notably, Article 12 of the CRPD explicitly requires that measures related to legal capacity “apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body”.

This may be easier said than done, of course. Capacity assessment may be a resource-intensive process. A balance must be struck between ensuring access to review and reassessment, and preventing endless and unnecessary cycles of reassessment.

Some assessments of capacity are decision-specific, of course. For example, under the HCCA, capacity is required to be reconsidered each time a new treatment proposal is made. In such circumstances, there is in theory no concern regarding “review” of assessments, as a fresh assessment should be conducted for each specific decision. In practice, however, there are concerns that the results of a finding of lack of capacity may bias perceptions and undermine the presumption of capacity, so that in effect a finding of incapacity for a single decision may result in ongoing substitute decision-making. Concerns about reassessments arise most strongly where there are long-term ramifications arising from an assessment; for example, where a finding of lack of legal capacity activates a springing power of attorney or gives rise to guardianship. The more a particular regime addresses legal capacity only in the context of specific, particular decisions rather than through long-term arrangements, the fewer concerns about reassessment will arise. It is likely not practical in all contexts, however, to treat legal capacity as totally decision-specific and to reassess capacity for each and every decision. 

Alberta’s new capacity and guardianship legislation provides an interesting example of measures to address returned capacity and end decision-making orders and agreements. The Adult Guardianship and Trusteeship Act (AGTA) and the Personal Directive Act (PDA) contain numerous provisions aimed at recognizing the possibility that a person may regain capacity. This was one of the developments heralded in legislative debates as responding to concerns among Albertans, especially in regards to older adults who had suffered a stroke.[182] For example, capacity assessors must assess whether the adult is likely to regain capacity. The Court has the ability, and in some cases the duty, to include a review date in an Order for guardianship or trusteeship. The AGTA also creates a system for urgent short-term guardianships and trusteeships, as well as a process to take a Personal Directive out of effect.[183] In addition, the PDA requires that a service provider providing services related to a personal matter such as health care, accommodation, participation in social, educational or employment activities, or other similar matters must consider the capacity of a maker, even if they have previously been found to be incapable with respect to the decision. Before providing a personal service, they must “make a reasonable effort to determine if the maker continues to lack capacity”.[184]

In the Australian state of Victoria, the Victorian Civil and Administrative Tribunal (VCAT) orders for guardianship (personal or financial) are subject to regular re-assessment. Under the legislation, a reassessment must occur within 12 months after VCAT makes an order, and at least once within each three year period after an order is made, unless VCAT orders otherwise. Upon reassessment, VCAT has the power to continue, revoke, vary or replace the order, as it finds appropriate.[185] In practice, VCAT often orders reassessments of personal guardianship orders every 12 months, and of administration (property) orders every three years. VCAT also has the power to issue a self-executing order that expires after a designated period or event, unless an application is made to extend the order. These are more common for guardianship than administration orders.[186]

 

C.     Ontario’s Systems for Assessing Capacity

1.     Overview

Ontario might best be described as having, not a capacity assessment system but a set of systems for assessing capacity. In keeping with the general approach of the reforms that lead to Ontario’s current legislation, capacity assessment systems are specific to particular types of decisions. The SDA, HCCA and MHA collectively set out five main systems for assessing capacity under those statutes:

1)     examinations of capacity to manage property upon admission to or discharge from a psychiatric facility (MHA);

2)     assessments of capacity to make treatment decisions (HCCA);

3)     evaluations of capacity to make decisions about admission to long-term care or for personal assistance services (HCCA):

4)     assessments of capacity to make decisions regarding property or personal care (SDA);

5)     assessments of capacity to make a power of attorney (SDA).

There are areas of commonality among these assessment mechanisms, but they differ from each other considerably in terms of factors such as the following:

1)     who conducts the assessment;

2)     the training and standards imposed on persons conducting the assessment;

3)     information and supports for persons undergoing assessments;

4)     documentation required for the assessment process; and

5)     mechanisms and supports for challenging an assessment.

Each system has its own set of checks and balances for the overarching tensions between accessibility and accountability, preservation of autonomy and protection of the vulnerable that underlie this process. The key features of each system are briefly summarized below, but it should be noted that a comprehensive description and discussion of each is not intended. 

While the various capacity assessment systems vary in complexity of process and navigation as among themselves, the existence of five separate systems does inevitably result in considerable complexity in the system as a whole.

The different systems tend to affect different populations, although there may be considerable overlap, particularly for persons with mental health disabilities or for individuals who interact with issues of capacity at various points over the life course. Professionals tend to work in mainly one of the assessment systems: that is, persons who conduct capacity evaluations under the HCCA regarding admission to long-term care would not commonly also be capacity assessors under the SDA. However, as professionals may also act informally to assist individuals in navigating through the legal capacity, decision-making and guardianship system, professionals operating in one assessment system may find themselves attempting to provide information about other assessment systems to individuals or their families. As well, there may be confusion as to which assessment system appropriately applies in a particular instance. In practice, there is considerable confusion related to the intersection and interaction of the systems. 

It is beyond the scope of this Paper to provide an exhaustive description of all of Ontario’s capacity assessment systems. The following sections will provide brief general overviews of the five systems, focussing on procedural issues identified above.

 

2.     Examinations for Capacity to Manage Property Upon Admission to a Psychiatric Facility

These assessments (referred to in the statute as “examinations”) are governed by Part III of the Mental Health Act (MHA).[187] These assessments were intended to provide a speedy and simple mechanism for ensuring that those admitted to psychiatric institutions did not thereby lose their property due to temporary inability to manage it.

Triggering the Assessment: 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 a continuing power of attorney for property.[188] A re-examination of the patient may take place at any time while the patient is in the facility,[189] and must do so prior to discharge. At the time of discharge, the certificate must either be canceled[190]  or a notice of continuance ordered.[191]

Who Performs the Assessment: These examinations are performed by a treating physician, usually a psychiatrist.

Documentation: Upon completion of the examination, the physician must make a notation in the patient’s file of the finding and reasons for the decision.[192]  A certificate of incapacity must be issued using Form 21, which requires the physician to provide the patient’s name and address, the physician’s name, the name of the psychiatric facility, the date of the examination, facts indicating incapacity observed by the physician and facts indicating incapacity communicated to the physician by others.[193] The physician must also complete a Financial Statement Form (Form 22).[194] Form 22 is quite lengthy, and asks for information pertaining to the patient’s family members and dependents, property, insurance protection, personal estate, stocks and bonds, personal property, money secured by mortgage, debts and promissory notes, and any other liabilities, information which, practically speaking, is unlikely to be available to the physician and as a result is frequently left incomplete or is inaccurate. The form for a continuance of a certificate of incapacity is Form 24, and requires exactly the same information as Form 21.[195]

Consequences of the Assessment: 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).[196] The PGT then becomes the patient’s statutory guardian of property,[197] unless the patient has a springing POA. It is also possible for a family member or spouse to apply to the PGT to take over the guardianship.[198] If the physician fails to re-examine the patient prior to discharge, the guardianship of the PGT or any replacement will terminate.

Guidelines or Training Requirements: 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[199] is referenced for the purposes of determining the capacity to manage property under the MHA. Although the Ministry of the Attorney General has published guidelines on assessing capacity, they are aimed at Capacity Assessments under the SDA. Guidelines for assessing capacity published by medical professional colleges, on the other hand, focus on capacity to consent to treatment. It seems that examinations to determine capacity to manage property performed by physicians in psychiatric facilities are relatively unregulated and under-analyzed. The LCO’s research did not uncover any policies, tools or training manuals specifically tailored to this type of assessment, although it is certainly possible that such materials have been developed for use within facilities.

With the lack of statutory, regulatory or professional guidelines for these examinations, Consent and Capacity Board (CCB) decisions regarding appeals of Form 21 certificates and Form 24 continuations are useful in identifying criteria for these assessments. These decisions have relied on the common-law, the Weisstub Report and the decisions of the Psychiatric Review Board in establishing that these assessments should: (1) presume capacity; (2) focus on the patient’s ability to understand rather than their actual understanding; (3) not rely solely on the patient’s psychological diagnosis; (4) not rely on the physician’s opinion of what constitutes wise or unwise decisions; (5) take account of the patient’s ability to implement skills to overcome any deficiencies they may have; and (6) take account of the size and nature of the patient’s estate.[200]

Rights and Recourse for Those Assessed: Patients admitted to a psychiatric facility are not entitled to refuse the examination to determine their capacity to manage property.[201] However, they are afforded the following substantial procedural rights:

  1. the right to receive notice that a certificate of incapacity has been issued.[202]
  2. the right to timely provision of a rights adviser.[203] The rights adviser will meet with the patient and inform her or him of the significance of the certificate and of the right to appeal to the Consent and Capacity Board (CCB). If requested, the rights adviser will assist the patient to apply for a hearing before the Board, obtain a lawyer or apply for Legal Aid.[204] The legislation sets standards for knowledge, skills and training for rights advisers.[205] Most rights advisers are provided by the Psychiatric Patient Advocate Office (PPAO); all rights advisers receive the legislatively required training through the PPAO.[206]
  3. the right to apply to the CCB to review the assessment.[207] Applications to the CCB for review of a certificate may be made no more often than every six months.[208] If a patient makes such an application, but is discharged from the facility while the review is underway the Board may continue to deal with it under the MHA.[209] However, if a patient makes the application after they have been discharged, they are no longer considered a “patient” under the Act (defined as an inpatient), and the application will be subject to the SDA, and a “fresh” assessment of capacity will be required in order to apply to the Board for review, which the individual would have to pay for her or himself.

In practice, concerns have been voiced that discharge often happens without rights advice, and that failure to ensure compliance with procedural rights does not result in meaningful consequences for the non-complying physician.

 

Concerns and Critiques

Examinations under the MHA have received relatively little attention in the literature. The most important areas of concern seem to be misuse of the legislation to achieve purposes not intended, and problematic interactions between the MHA and SDA. 

It has been pointed out that those conducting the examinations may face temptations to employ them in ways that address institutional pressures.[210] The case of Re V provides an example of these dynamics. In this case, V’s physician was of the opinion that V could be discharged if there were financial resources available to support him. V had no financial means and did not want to apply for ODSP or other financial assistance: his physician thought that if he were found incapable of managing property, the PGT could apply for financial assistance on his behalf and V could be discharged. The physician had not examined V upon his admission to the facility, but had just assumed his incapacity to manage property at that time. The CCB overturned the physician’s finding of incapacity to manage property and admonished the attempt to use the PGT in order to force V to comply with their discharge plan.[211]

Concerns have also been raised that these examinations may be used as an “end run” around the requirements surrounding assessments to manage property under the SDA. Jude Bursten, a patient rights advocate with the PPAO, reports that some physicians have requested that clients be admitted to a facility in order to force an examination of their capacity to manage property when these patients have exercised their right under the SDA to refuse an assessment.[212]

There are issues arising from the way this aspect of the MHA relates to the SDA, particularly in the transition from “patient” under the MHA to coverage under the SDA. Patients who did not apply for a review of a continuance prior to their discharge, but who later want to have the decision reviewed must have a fresh Capacity Assessment completed at their own expense. Bursten identifies this as a barrier to patient rights, particularly in the case of patients who are discharged to the community while on a leave of absence from the hospital. These patients, he reports, often do not receive rights advice or written notice.[213] They therefore are not always aware of their right to challenge this assessment, and may not be made aware until a later date. The requirement of a fresh Capacity Assessment also creates a financial barrier which is especially concerning given the disproportionate poverty and unemployment experienced by persons with mental illnesses.

Bursten also notes that the interaction between the two statutes is frustrating for treating physicians outside of psychiatric institutes, who do not have the obligation or even the authority to assess their patients’ financial capacity or to revoke a prior certificate of financial incapacity issued while their patient was in a psychiatric facility.[214]

There are some legislative gaps in terms of regained capacity. While the MHA allows a physician to re-examine a patient for their capacity to manage property and requires a re-examination prior to a patient’s discharge, there is no requirement that a physician re-examine a patient if they have reason to believe their capacity has changed (although this may be the purpose of allowing for re-examinations, whether a re-examination occurs is left to the physician’s discretion), no right of the patient to request a re-examination, and no requirement that the physician re-examine the patient every six months to match the limit on how often a patient can apply to the CCB. This means that a patient’s certificate of incapacity may remain in place while their capacity has changed, and if they have already applied to the Board in the previous six months, they would have no obvious way of challenging the certificate. 

 

3.     Assessing Capacity to Make Treatment Decisions

Assessment of capacity to make treatment decisions is regulated under Part II of the Health Care Consent Act. The HCCA requires that treatment not be administered unless consent to treatment has been provided by the patient, if capable, or by a substitute decision-maker, if the patient is found to be legally incapable.[215]

Triggering the Assessment: If a health practitioner proposes treatment and has reasonable grounds to believe the patient is not legally capable with respect to making a decision about the proposed treatment, the patient’s legal capacity must be assessed in order to ensure that valid consent is obtained. For patients who are legally capable, the health practitioner must get their consent to treatment, and if they are not, they must get consent from the appropriate SDM. This must take place any time a medical treatment is proposed; the legislation applies equally inside or outside of a hospital, long-term care facility or doctor’s office.

A health care practitioner can rely on the presumption of capacity in obtaining consent to treatment unless she or he has reasonable grounds to believe the person is legally incapable with respect to the decision at hand.[216] Unlike the now-repealed Consent to Treatment Act, 1992,[217] the HCCA and guidelines do not contain guidance on what constitutes reasonable grounds to believe the person is incapable. 

Assessments to determine capacity to make treatment decisions are specific to time and treatment. An individual may be legally capable with respect to one treatment but not another[218] or capable with respect to a treatment at one time and not at another.[219] The treatment-specific nature of legal capacity means that a new assessment must be done if a new type of treatment is proposed. The HCCA defines treatment as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan”.[220] 

Who Performs the Assessment: Health practitioners are responsible for obtaining consent to treatment, and therefore responsible to assess capacity to consent to treatment, as necessary. Health practitioners are defined as members of a college under the Regulated Health Professions Act, 1991 (RHPA)[221] or as prescribed by the regulations.

Consequences of the Assessment: If an individual is found legally incapable with respect to a health care decision, an SDM is appointed to make the decision on their behalf. In making decisions, the SDM must abide by certain guidelines designed to ensure they take into account the individual’s beliefs and prior capable wishes and act in the best interests of the individual.[222]

Guidelines or Training Requirements: There is no specific required training outlined in the HCCA or regulations. However, each college regulates the mandatory qualifications for membership. These may of course vary considerably from college to college. Using the College of Physicians and Surgeons of Ontario (CPSO) as an example, O Reg 865/93, which governs the requirements for a qualifying medical degree for the purposes of joining the College, does not require any specific training in ethics, consent or capacity.[223] However, most medical colleges have guidelines or publications that address the importance of obtaining consent before administering treatment.[224]

Health practitioners may also receive training from their employers. The type of training they receive in these settings will vary greatly depending on the employment setting and the specific employer. Examples of training manuals include the CCAC Client Services Manual,[225] the Dr. E. Etchells’ Aid to Capacity Evaluation (ACE),[226] and A Practical Guide to Mental Health and the Law in Ontario, a toolkit prepared by Borden Ladner Gervais LLP for the Ontario Hospital Association.[227]

There are also a number of publications by advocacy organizations and experts that can be used by practitioners. A notable example is the National Initiative for the Care of the Elderly’s (NICE) short guide to capacity to consent to treatment in Tool on Capacity & Consent: Ontario Edition.[228]

Rights and Recourse for Those Assessed: A finding of lack of capacity to consent to a treatment must be communicated to the patient. If the individual is a patient in a psychiatric facility, they are entitled to written notice under the MHA.[229] Outside a psychiatric facility, a patient is not statutorily entitled to written notice of a finding of incapacity to consent to a treatment. The form of notice a health practitioner must give and whether a patient must be informed of their right to apply to the CCB for review of the finding is governed by the regulating College to which the health practitioner belongs. Generally, colleges require that the health practitioner inform an individual who has been found legally incapable who their SDM is and the requirements regarding their substitute decision-making role (if they are capable of understanding this information), as well as informing them about their right to apply to the CCB.

An individual can apply to the CCB for review of a finding of incapacity to consent to a treatment unless they have a guardian of the person who has authority to give or refuse consent to the treatment or an attorney for personal care under a POA that waives his or her right to apply to the CCB for review.[230] Patients may apply to the CCB no more than once every six months for review of a health practitioner’s finding that they are incapable with respect to a treatment decision, except under a special application when there has been a material change in circumstances justifying a reconsideration of the person’s capacity.[231] There are also circumstances where a person is deemed to have applied for a review of the finding of incapacity, such as an application to appoint a representative for the incapable person or an application to interpret an SDM’s decision-making obligations. An individual has the right to apply to the CCB for every specific assessment, meaning that they have the right to apply in regards to capacity to consent to a new treatment, regardless of whether they have applied in regards to a different treatment in the prior six months. Hiltz and Szigeti report that historically, less than 10 per cent of applicants have been found capable of consenting to treatment upon appeal to the CCB.[232] 

Oversight is mainly performed by the health professional colleges. Health professionals are overseen by their respective colleges, which are in turn overseen by the Health Professions Regulatory Advisory council. Patients can make a complaint to the health practitioner’s regulatory college if they believe the practitioner did not follow the proper procedure or over-stepped their authority.

 

Concerns and Critiques

Commentators have identified a number of concerns with the implementation of the legislation. 

Many of the concerns arise from pervasive misunderstandings of the law. Judith Wahl of the Advocacy Centre for the Elderly identifies several misconceptions on the part of a variety of players—health professionals, community workers, and older adults and their families—that have to do with an assumption that capacity is more global than is intended by the legislation. The first is that a single capacity assessment may be applied to multiple health care decisions.[233]  Second, health practitioners may take any existing POA as an indication to consult only the attorney, not the patient, or not to consult at all and simply follow directions in the POA, foregoing a capacity assessment altogether and assuming the patient’s incapacity in regards to the proposed treatment. Third, the ability to gain consent to a “plan of treatment” may be abused by writing these plans in very general terms, thereby foregoing required capacity assessments.[234] 

Particular concerns have been voiced about the failure to properly apply the statutory presumption of capacity. Assumptions about the characteristics of some groups may lead, in practice, to a contrary presumption of incapacity for older adults, persons with disabilities and long-term care residents.[235] There may also be a de facto presumption that consent to treatment indicates capacity, while refusal to consent indicates incapacity.[236]

Some have argued that the capacity assessment process is inherently subjective. Daniel J Dochylo and Michel Silberfeld argue that “[t]rained assessors may come to different decisions about capacity” and that “[a]ssessors can also differ about the relevance of and weight to be given to specific psychiatric symptoms in relation to particular decisions”.[237]

Concerns have been raised about the adequate provision of rights information, a concern which applies also to other mechanisms such as capacity evaluations for admission to long-term care. The Advocacy Centre for the Elderly writes that,

Unfortunately, many health care practitioners fail to satisfy even the minimal requirement of providing rights information to individuals: residents [of long-term care homes] are not informed when they are found incapable nor are they made aware of their statutory rights and the procedures available to exercise these rights. There are also problems with the policies of the various health Colleges respecting rights information. By requiring health practitioners to follow the policies of their Colleges, they could be subject to discipline proceedings if they fail to provide rights information. However, the policies of the Colleges do not necessarily ensure that the patient would have the information necessary for the purpose of due process. As well, it is questionable as to whether the Colleges enforce this requirement or discipline practitioners who fail to comply.[238]

There are also a number of concerns regarding the appeals process, which will be addressed in Part Four, Chapter II dealing with dispute resolution mechanisms under the HCCA. 

 

4.     Evaluations of Capacity to Make Decisions Regarding Admission to Long-Term Care and Personal Assistance Services

The HCCA sets up a specific assessment process for decisions related to admission to long-term care homes (as defined in the Long Term Care Homes Act 2007) (Part III) and consent to personal assistance services (Part IV).  Personal assistance services are defined as “assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person”.[239]

Triggering the Assessment: An evaluation of capacity with regards to an admissions decision happens when an individual’s family or health professional believes they should move into long-term care, and there is reason to believe the individual lacks legal capacity to make a decision on this issue. As with decisions regarding treatment, legal capacity is not supposed to be associated with the individual’s consent or refusal of consent. However, individuals are usually evaluated when they disagree with their family’s or health practitioner’s opinion. These evaluations can happen when a person is living in the community (at home, either alone or with someone) or when the person is in a short-term facility. Often, the discussion about long-term care follows an incident such as a fall that raises concerns over the individual’s well-being in their current living situation. In practice, numerous capacity determinations often occur at once, such as assessment of capacity to make admissions decisions and capacity to manage property, since a decision to move into long-term care will often require a decision to sell one’s home to finance the long-term care.[240] For an inpatient in a psychiatric institution, the CCB has held that an actual evaluation may not be necessary, if the patient’s treating psychiatrist is able to determine the patient’s capacity based on their ongoing interaction and the patient’s chart.[241]

Who Makes the Assessment: Unlike assessments of capacity to make treatment decisions, which can be performed by any health professional, evaluations of capacity to make personal assistance services decisions and admissions decisions are performed by a special category of health professionals who are called capacity evaluators. Capacity evaluators must be members of the college of a limited list of health professionals: audiologists and speech-language pathologists, dietitians, nurses, occupational therapists, physicians and surgeons, physiotherapists, psychologists[242] and social workers.[243] These health professionals were chosen for conducting evaluations of capacity to make admissions decisions because they are the ones who are most likely to be serving seniors, the population most often in need of evaluations of these capacities.[244]  Jeffrey Cole and Noreen Dawe report a study that found that most evaluations were completed by social workers, and that social workers found this to be the most challenging aspect of their jobs.[245] Alexandra Carling-Rowland and Judith Wahl similarly report that the majority of evaluations are conducted by CCAC case managers, who tend to be trained as social workers or registered nurses.[246] Moreover, they report that in a survey of audiologists and speech-language pathologists, only 19 per cent knew they were qualified to conduct evaluations of capacity to make admission decisions, 11 per cent had conducted an evaluation with another health professional and 6 per cent had conducted an independent evaluation.[247] The prevalence of the other listed professionals in performing evaluations is unknown. However, if they are similar to the figures concerning audiologists and speech-language pathologists, there is reason for concern about under-awareness and lack of training of these health professionals in conducting capacity evaluations. As is noted below, there has been in some quarters considerable effort put into training and the creation of standards beyond that required by statute: the College of Audiologists and Speech Language Pathologists have developed a Consent and Capacity learning module, and the CCAC Training Manual for Evaluators referenced below providing an example. 

Documentation: There is no guidance in the HCCA or regulations with respect to the conduct of capacity evaluations. Nor are there guidelines, official policies or training materials, or mandatory forms. This forms a striking contrast with the detailed guidance for capacity assessors under the SDA, as described in the following section. There is, however, a five-question form known as the “evaluator’s questionnaire, so ubiquitous as to be almost standard practice.[248] The evaluator is instructed to record the answers to these questions and to check a box indicating capable, incapable, or no communication was possible, and boxes verifying that they have informed an individual of their finding of incapacity, that they have been given a rights information sheet and to indicate whether the applicant intends to apply to the CCB. The form also includes a two-page evaluator questionnaire assist, which recommends that evaluators inform clients of the purpose of the evaluations and the effect of a finding of legal incapacity, provides a few sample additional questions and outlines the evaluator’s post-interview responsibilities. The CCB and the courts have repeatedly held that simply asking the five questions on the form and recording the answers does not constitute a proper capacity evaluation.[249]

Consequences of the Assessment: Where an individual is assessed as lacking capacity to make decisions about admissions or personal assistance services, these decisions will be made by an SDM, appointed in the same way as SDMs for treatment decisions.

Guidelines and Training Requirements: The above-listed health professionals are capacity evaluators by virtue of being a member of the health college. They are not required to undergo any specialized training in performing capacity evaluations. Although in reality, those who perform evaluations may undergo additional training, there is no legal requirement that they do so. Judith Wahl comments,

[T]he evaluators receive no specific training on capacity assessment. They get the authority to assess capacity in respect to consent to admission into long term care homes simply from being a member of one of the Health Colleges that are listed in the definition of evaluator.[250]

Cole and Dawe report that social workers in the study they referred to did not feel they had adequate training and supervision in completing evaluations of capacity to make admissions decisions.[251]

In addition to the Ministry form, numerous guides have been created to provide additional guidance for those conducting evaluations of capacity to make admissions decisions. However, since none of these guides is endorsed by the legislation or regulations, evaluators are not required to use them. It is also unclear how much buy-in these guides have or how widely they are distributed. The most comprehensive of these is Assessing Capacity for Admission to Long-Term Care Homes: A Training Manual for Evaluators, prepared for the CCAC.[252] There are also specialized tools, such as the Practical Guide to Capacity and Consent Law of Ontario for Health Practitioners Working with People with Alzheimer Disease by the Dementia Network of Ottawa,[253] and the Communication Aid to Capacity Evaluation (CACE), developed by Alexandra Carling-Rowland.[254] 

As is the case with assessments regarding consent to treatment, oversight of capacity evaluators is carried out through the regulated health colleges, with sections 47.1 and 62.1 of the HCCA requiring evaluators, like treating health practitioners, to follow the guidelines of their profession’s governing body with respect to the information to be provided to the individuals they evaluate regarding the effects of their findings.

Rights and Recourse for Those Assessed: An individual undergoing a capacity evaluation is entitled to the same rights as with an assessment of capacity to consent to treatment. In the admissions decisions context, there is no statutory right to be informed of the purposes of the evaluation, to refuse the evaluation, to have a lawyer or friend present, or to be informed of these rights prior to the evaluation. However, the standard evaluation form includes an information sheet that is to be given to individuals found to be incapable and boxes the evaluator should check indicating that he has informed the person of the finding of lack of capacity and of their right to apply to the CCB.[255]

Despite the lack of rights spelled out in the HCCA, individuals undergoing capacity evaluations may be entitled to some procedural rights based on the common law notion of natural justice.[256] For example, in Saunders v Bridgepoint Hospital, Spies J. commented (in obiter) that

The HCCA does not have a comparable provision to s. 78 of the SDA. With respect to the right to refuse an assessment, that seems to me to be a matter beyond the scope of procedural rules of fairness and is reviewable only in the context of a constitutional challenge. I am however, of the view, that as a matter of procedural fairness, a patient must be informed of the fact that a capacity assessment, for the purpose of admission to a care facility, is going to be undertaken, the purpose of the assessment and the significance and effect of a finding of capacity or incapacity. Given what is at stake for the patient, this seems to be a minimal requirement for procedural fairness. Furthermore, this will ensure that the information collected from the patient, which forms the basis of the assessment, is reliable.[257]

Individuals can apply to the CCB for a review of a finding of incapacity to consent to admission or personal assistance services, unless they have a guardian of the person who has the authority to give or refuse consent to admission to a care facility or an attorney for personal care under a POA that waives the right to apply to the CCB.[258] If someone wishes to challenge a finding of incapacity to make admissions decisions after admission has occurred, the CCB has no jurisdiction to hear an application regarding compliance by the SDM with the requirements of the HCCA under section 54(1). However, they have ruled that they will review the decision through an application for directions pursuant to section 52(1).[259]

 

Concerns and Critiques

During the LCO’s preliminary consultations, this form of capacity assessment raised the greatest concerns, particularly with respect to admission to long-term care. These evaluations take place at a nexus where institutions and systems (health care, long-term care, home care) and informal supports such as family and friends are under very considerable strain, and often at a point where the individual in question is vulnerable – for example, when they are recovering from an illness that has left them hospitalized. The consequences of an erroneous determination of capacity in this area will likely be life-changing and long-term, profoundly affecting individuals and their families. While admission to long-term care may be necessary, and may result in improvements to health and well-being, most of those admitted would prefer to remain in the community if possible.

Some of the key issues are readily apparent from the discussion above. There are considerable concerns that the 5-question form is being misused. Instead of applying it as a starting point, evaluators may ask only those five questions, and may fail to “probe and verify” or to take into account factors that might influence the assessment (such as stress, difficulties with communication or cultural differences).[260] Carling-Rowland and Wahl, looking at the specific concerns of individuals with communications disabilities, raised concerns that persons with these disabilities may be more likely to be found incapable, particularly since the tool is not designed to take into account communications barriers. This is particularly of concern because of the wide range of practitioners who may carry out evaluations, and the lack of mandatory training for these evaluators.[261]

While a determination that an individual lacks capacity to make a decision with respect to admissions does not result in guardianship or similar ongoing loss of decisional autonomy, the consequences of a determination of lack of capacity in this area may be life-changing and permanent. However, individual access to information and supports around this process are relatively minimal.

As well, there are concerns that existing protections are not adequately implemented. Similarly to the concerns it has expressed related to capacity to consent to treatment, the Advocacy Centre for the Elderly has noted that,

The Health Care Consent Act … does not specifically require evaluators, a specified category of health practitioners, to provide rights information to the individuals they find incapable of consenting to admission a care home. The practice of most evaluators is to give a rights information sheet to incapable individuals, although the information may be unclear and misleading. There is no guarantee that the person will be assisted by the evaluator in obtaining legal assistance or contacting the Consent and Capacity Board to initiate the process to challenge the finding of incapacity.

Statistics obtained from the Consent and Capacity Board indicate that only 61 people in 2007 and 81 people in 2008 had a hearing to dispute the finding of incapacity respecting admission to long-term care. Considering that there are approximately 76,000 long-term care residents in the province and such a small number of applications, it leads us to speculate that many older adults are not receiving rights information.[262]

 

5.     Assessments of Capacity to Make Decisions Regarding Property or Personal Care

MHA examinations of capacity to manage property on admission to a psychiatric facility were discussed above. All other assessments of legal capacity to manage property are governed by the SDA, as are assessments of capacity to manage personal care, which includes decisions related to health care, clothing, nutrition, shelter, hygiene or safety.

Triggering the Assessment: Assessments of capacity to manage property or personal care may be triggered in a variety of ways and for a number of different purposes. An assessment may be carried out for the following purposes:

  1. to trigger a statutory guardianship for property, upon request by the individual to be assessed, or by another individual;[263]
  2. to bring into effect a power of attorney for personal care or property that is contingent on a finding of incapacity;
  3. to challenge or reverse a previous finding of incapacity (for example, where an individual believes that his or her status has changed and wishes to challenge their court-appointed or statutory guardianship);
  4. to provide evidence in an application for court-appointed guardianship;
  5. when ordered by a court.[264]

Who Carries Out the Assessment: Only a qualified Capacity Assessor can conduct an assessment under the SDA.[265] In order to be a Capacity Assessor, a person must be a member of one of the following regulated colleges of Ontario: Physicians and Surgeons, Psychologists, Occupational Therapists, Social Workers and Social Service Workers (and hold a certificate of registration), or Nurses (and hold a certificate of registration).[266] Assessors must meet training requirements, as outlined below. The Capacity Assessment Office of the Ministry of the Attorney General maintains a list of approved capacity assessors.

Consequences of the Assessment: Assessments of capacity to manage property or personal care under the SDA can result in a broad range of outcomes for the assessed individual, from having no legal effect to triggering a statutory guardianship, the form of substitute decision making most limiting on the individual’s autonomy.

Following a finding of lack of capacity to manage property, the Capacity Assessor must advise the PGT, who immediately becomes the individual’s guardian for property unless the individual already has a court-appointed guardian for property or a continuing POA for property that empowers the attorney to manage all of their financial affairs. Another person may apply to the PGT to take over a guardianship after the fact. However, only certain individuals can do so: the legally incapable person’s spouse or partner, a relative, an attorney under a continuing POA for property who does not have power over all of the legally incapable person’s property or a trust corporation if the legally incapable person’s spouse or partner consents in writing.[267] An application to be a court-appointed guardian does not carry the same limitation on who may be appointed. However, the court will look to whether the proposed guardian is already the individual’s attorney under a continuing power of attorney, the person’s current wishes, if ascertainable, and the closeness of the proposed guardian to the person.[268]

An assessment of capacity for personal care decisions is only legally relevant for the purposes of activating a POA for personal care or for providing evidence to the court in an application for guardianship for personal care.[269]

Guidelines and Training: Qualified Capacity Assessors must have completed the requisite training and requirements to maintain qualification. This includes a qualifying course approved by the Attorney General that includes instruction in the SDA, best practices for completing forms and reports under the Act, standards for the performance of Capacity Assessments, and procedures for determining if a person needs decisions made on their behalf. They must be evaluated on their mastery of the training.[270] An approved Capacity Assessor must also complete continuing education courses every two years.[271]

In addition to the continuing education course, an approved Capacity Assessor must provide the Capacity Assessment Office (CAO) with copies of two recent assessments (with personal information removed) every two years for review and feedback[272] and must perform a minimum of five assessments in every two-year period in order to maintain their approved status.[273]

Capacity Assessors must comply with the Guidelines for Conducting Assessments of Capacity[274] established by the Attorney General.[275] The Guidelines attempt to create a standard assessment protocol that will prevent inconsistent or bias-laden assessments. Failure to comply with the Guidelines may lead to a complaint to the Assessor’s college of regulated health professionals.[276] The Guidelines set out key principles that should inform Capacity Assessments, such as the right to self-determination and the presumption of capacity; outline the conceptual underpinnings of Capacity Assessments; elaborate on and explain the test for capacity; and set out a five-step process for Capacity Assessment.

Rights and Recourse for Those Assessed: The SDA sets out a number of procedural rights for persons undergoing these assessments.[277]

  1. A right to refuse an assessment, with the exception of court-ordered assessments and those mandated through special provisions in a power of attorney for personal care.[278]
  2. A right to receive information about the purpose, significance and potential effect of the assessment.[279]
  3. A right to receive written notice of the findings of the assessment; for situations involving incapacity to manage property for the purposes of a statutory guardianship, there is an additional requirement to provide a copy of the certificate of incapacity.[280]
  4. For cases involving a finding of incapacity to manage property for the purposes of establishing a statutory guardianship in favour of the PGT, the PGT must, upon receipt of the certificate of incapacity, inform the individual that the PGT has become their guardian of property and that they are entitled to apply to the CCB for a review of the finding of incapacity.[281]
  5. For persons who become subject to statutory guardianship, the right to apply to the CCB for a review of the finding of incapacity, within six months of that assessment.[282]

 

Concerns and Critiques

There is considerable literature addressing SDA assessments for capacity to make decisions about property and personal care.  The dynamics of SDA assessments are significantly affected by their potential to lead to long-term solutions, such as the exercise of powers of attorney or the appointment of a guardian, together with the resultant access to finances or control over the personal life of the individual.

Because there are costs associated with SDA assessments, there may be accessibility issues. While the Capacity Assessment Office has some funds available towards Capacity Assessments for those who cannot afford them, these are limited. The cost of assessment may be a deterrent to assessment or to re-assessment. There may also be other types of accessibility issues, for example in remote communities, or for persons from linguistic or cultural minorities, although the CAO does attempt to ensure the availability of Capacity Assessors in all Ontario regions and will assist families in finding Capacity Assessors with appropriate language capabilities.

A major concern has been attempts to use assessments to control others or to further family disputes. Capacity Assessments under the SDA have the potential to result in transfer of long-term control over the individual or his or her assets, creating an incentive for abuse. While the SDA allows individuals to request a Capacity Assessment of themselves (as well as of another person), Verma and Silberfeld report that “[p]eople rarely refer themselves for assessment”.[283] Rather assessments are often requested by a family member or a lawyer acting on behalf of a family member. While it is likely that in most cases the family member may be genuinely concerned for the individual’s well-being, it is also possible that they may be looking to benefit personally from a finding of legal incapacity, or may be using the assessment in an ongoing rivalry with another family member.[284] Similarly, Silberfeld et al identify potential conflicts of interest in the context of requests for reassessments to restore capacity, suggesting that third parties who are not legal decision-makers for an individual may pressure the individual to request a reassessment so that the third party can informally take over the decision-making authority.[285] The potential for these kinds of issues is apparent from the caselaw.[286] The burden of dealing with potentially conflicting agendas and the possibility of nefarious purposes falls on the Capacity Assessor.[287] 

Another concern is that SDA assessments may be unnecessarily triggered: family members of vulnerable individuals may unnecessarily trigger the assessment and guardianship process because they do not know how else to protect that family member from perceived or actual harms. They may not be aware of non-legal options, or the family may not be sufficiently cohesive to implement them. Family members may feel frustrated at a lack of information or options available to address the particular situation they face, especially if they are unable to consult a lawyer, and the assessment process under the SDA may be comparatively easy to launch for those who have the means to do so, even when requesters may not understand the implications.

The SDA assessments have the most extensive system for training and oversight of Ontario’s capacity assessment mechanisms, reflecting the significant consequences of a finding of incapacity for the purposes of managing property or personal care. Indeed, as was noted earlier in this Chapter, the training and oversight requirements, together with the comprehensive guidelines for SDA assessors, are exceptional when compared to most other jurisdictions. Even so, concerns have been raised that these training and oversight requirements could be more rigorous.

 

6.     Assessments of Capacity to Create a Power of Attorney

To create a power of attorney, one must meet the legal test of capacity for doing so. As was discussed in Part Two, Chapter I, the SDA sets out specific tests for capacity to make powers of attorney for property and personal care, with the test for the latter being set quite low, and for the former, quite high.

Triggering the Assessment: While the SDA does not contain a presumption of capacity specific to making POAs, capacity to enter into a contract is presumed for persons over eighteen[288] and to make personal care decisions for those over sixteen,[289] and a person (such as a lawyer asked to prepare a POA) can rely on this presumption of capacity unless she or he has reasonable grounds to believe that the individual is incapable of entering into the contract or of giving or refusing consent.[290]

There is therefore no legislative requirement that an individual undertake a capacity assessment in order to make a POA, unless the client wants to create a POA for personal care with certain extraordinary clauses.[291] However, some lawyers require their clients who are older adults or who appear to have a mental disability to undergo such an assessment. During the LCO’s preliminary consultations, staff spoke with a number of Capacity Assessors who indicated that this kind of non-statutory assessment made up a considerable portion of their assessments.

Who Carries Out the Assessment: With limited exceptions, a Capacity Assessment is not required for entering into a POA. If challenged, the final arbiter of capacity will be a judge, who will consider any assessments as evidence. Professional credentials are thus only one component that a lawyer will look to when asking for an assessment of a client’s capacity to make a POA. Cohen and Shulman point out that the expertise of such an assessor will affect the weight their opinion is given in a potential court battle at a later date. Lawyers requesting that their clients undergo an assessment will therefore likely refer them to a clinician with whom they are familiar, who has expertise and experience with capacity to make POAs, who makes a good expert witness and who has an impressive list of credentials.[292]

Requirements for the Assessment: These assessments are not subject to specific statutory requirements. Since many of them are completed by persons who are also Capacity Assessors for property under the SDA, the MAG Guidelines may be in practice applied.

Rights and Recourse for Those Assessed: Assessments of capacity to make a POA are generally undertaken at the behest of the person being assessed, and usually when they are confident they will be assessed as capable. However, a finding of incapacity to make a POA is not reviewable by the CCB.[293] Since these assessments do not carry legal weight, except as they are likely to be interpreted by a court, someone in this position would only be able to argue against the assessment in court, and only in a proceeding in which the assessment was being used, that is, someone cannot just apply to the court to have an assessment invalidated or overturned.

In Knox v Burton,[294] Mrs. Knox wished to make a new POA for property in favour of her nephew, revoking the existing POA in favour of her son. She was assessed by one assessor as incapable of making a POA for property. She then underwent two more assessments by two other assessors, both of whom found her capable of making a POA for property. When her son challenged the new POA, the court considered all three assessments, recognized that capacity can fluctuate, and held the POA to be valid.

 

Concerns and Critiques

Some concerns have been expressed as to whether formal assessments of capacity to make a POA are really necessary. For example, Judith Wahl questions whether these assessments really provide the best evidence of capacity. She suggests that affidavit evidence from others who know the client and have observed their actions might provide better evidence of specific capacity.[295] Similarly, Spar and Garb argue that contemporaneous assessments do not provide much additional assistance to courts, as they are usually able to get a clear inferential picture of legal capacity using medical records, financial records, business records, any writing by the testator at the time of execution (such as diaries or letters) and information provided by the person’s friends, family, business associates and service providers.[296] At the most, contemporaneous Capacity Assessments are just one piece of evidence the court can consider in a challenge of a POA; a Capacity Assessment in this context does not in itself prove capacity.

A second concern is that it may be unclear who “owns” the assessment, or whom it is for, the lawyer or the assessed individual. An assessment in this context must satisfy multiple goals: giving an objective evaluation of the person’s capacity to make a POA, creating a document that will provide useful evidence in the event of a challenge of the POA, and satisfying the lawyer that they can proceed with preparing the documents. Olders asks: “What allegiance does the assessor owe to lawyers? The latter may exert pressure on the assessor to be part of an adversarial process, whereas the assessor, who has been consulted only to provide expertise, may view his or her role as impartial”.[297]

As with assessments for capacity to manage property or to make decisions about personal care, the cost of an assessment may be prohibitive for some, and so may form a barrier for older persons or persons with disabilities to accessing important legal tools such as POAs, particularly when it is kept in mind that older adults are often living on a fixed income, and younger persons with disabilities are disproportionately likely to live in poverty.

 

D.    General Themes and Concerns

Ontario’s approach(es) to capacity assessment were the result of thorough law reform efforts in the late 1980s and early 1990s, and as a result reflect a relatively advanced attempt to address the challenges inherent in designing processes and standards for assessing capacity.  Almost two decades worth of experience with the current capacity assessment mechanisms has revealed some general tensions and concerns with the current approach. Some of these challenges are particular to the inherent difficulties of designing processes for capacity assessment. Issues such as qualifications and requirements for persons assessing capacity, responding to the shifting nature of capacity, and striking the right balance of procedural protections are fundamental, and while improvements can be made, there are likely no perfect solutions.  Others issues are ones that arise in many areas of the law and, as indicated by the research for the Framework projects, tend to be of persistent concern to older persons and persons with disabilities in relating to the law.

 

1.     Issues Specific to Capacity Assessment Mechanisms

Diversity and Standardization Across Multiple Approaches to Capacity Assessent

While the underlying concepts of capacity are consistent across all of Ontario’s capacity assessment systems, this review of these systems under the SDA, HCCA and MHA reveals the diversity of approaches to capacity assessment processes within Ontario law and practice. Some systems, such as assessment of capacity to make a treatment decision, are relatively informal, while others, such as assessment of capacity to manage property under the SDA, are quite formal. Some assessments are for specific decisions (such as a particular treatment decision), while others are for decisional domains. Some include reasonably extensive procedural protections and supports, such as the rights advisers provided under the MHA, while others, such as assessments for management of property under the SDA, rely on what might be characterized as a consumer model with a right of refusal. Assessments of capacity to manage property or personal care under the SDA are subject to fairly extensive standards and guidelines, while capacity evaluations are guided by voluntary or institution-specific best practices and standards, and others, such as assessments related to property under the MHA, are treated as a matter of professional judgement. 

This variance among assessment systems reflects, to some degree, the variation in the contexts and consequences of different assessments, an approach recommended in the Weisstub Enquiry on Mental Competency.[298] Although the underlying concept of capacity is consistent across all of Ontario’s capacity assessment systems, its applications to different circumstances and types of decisions varies. It is a question worth considering, whether the various systems could be simplified or consolidated, without losing some of the attention to context. Could, for example, some standardization in training or protocols be profitably imposed across the various mechanisms?  For example, the Victorian Law Reform Commission recommended that clear principles inform the process of capacity assessment and that these principles “should provide guidance when anyone – including clinicians, tribunal members, or persons appointed under enduring powers – is required to determine whether another person has capacity to engage in a particular activity” [emphasis added].[299] The Mental Capacity Act 2005, which applies in England and Wales, aims to create a unified approach to capacity assessment. It governs powers of attorney, advance directives, assessments of capacity for one-time health, personal welfare or finance and property decisions, and appointments of decision-makers for ongoing decision-making needs, and binds all to a set of standard practices through a plain language Code of Practice.[300]


  • QUESTION FOR CONSIDERATION: Would Ontario benefit from greater harmonization, coordination or simplification of its various capacity assessment systems? If so, what are some specific suggestions for how this might be achieved?

 

Who Assesses

As compared to other jurisdictions, Ontario has opted for a largely professionalized and formalized approach to capacity assessment. With the exception of assessments for capacity to create a power of attorney, those who conduct statutory capacity assessments are drawn from the regulated professions. Interestingly, during the LCO’s preliminary consultations, several designated capacity assessors told the LCO that assessments for capacity to create powers of attorney or to create a will make up a significant and growing portion of their workloads, indicating a trend towards professionalization even where it is not statutorily required.

Indeed, the most frequent concern that the LCO heard about capacity assessment in Ontario was that it is still insufficiently specialized and formalized. The LCO heard significant concerns about the lack of mandatory specialized training for capacity evaluators, about the misunderstandings about the legal concept and test for capacity among health practitioners assessing for the purposes of obtaining consent, about insufficiencies in training requirements for designated Capacity Assessors, and about the need for clear, specific mandatory guidelines for those who assess capacity and are not currently bound by the MAG Guidelines. 

One area for further exploration is that of skills and training for the various forms of capacity assessors in issues related to diversity, including cultural competence and sensitivity to dynamics related to racialization, sexual orientation and other aspects of identity. As well, as with other issues related to service provision and access to the law in a province as large as Ontario, timely access to skilled professionals and services will be more challenging in rural or remote areas, something which must be taken into account when designing law reform recommendations.


  • QUESTION FOR CONSIDERATION: Who should carry out the various types of capacity assessments required? What types of training and education should they receive? How should this training be delivered?

 

Flexibility and Reassessment

The issue of reassessment applies mainly to provisions for capacity examinations under the MHA and for assessments of capacity to manage property or personal care under the SDA, as these are the assessments that have longer-term consequences, as potentially leading to guardianship or the activation of powers of attorney. Under the MHA, physicians may reassess at any time, and must do so prior to discharge. However, for patients who make lengthy stays in a psychiatric facility, the gap between re-assessments may be lengthy, and may not reflect shifts in the condition of the patient, who may only apply to the CCB every six months.  

Under s. 20.1 of the SDA, a statutory guardian of property must assist in arranging a re-assessment at the request of the legally incapable person, if at least six months have passed since the guardianship was created or since the last assessment. However, this requires that the individual in question (as well as the guardian) be aware of the right to have a reassessment carried out, and leaves the individual dependent for access to rights on the person whose control they wish to terminate. As well, there are no similar provisions for court-appointed guardians or those acting under a power of attorney. ARCH Disability Law Centre, in a paper commissioned by the LCO, identified this lack of a statutory requirement for court-appointed guardians to arrange new capacity assessments as a significant issue:

A major weakness of the current substitute decision-making regime is that court-appointed guardians are not required to arrange for the ‘incapable’ person’s capacity to be reassessed within any particular period of time. The only way to ensure that a person subject to a court-appointed guardianship is reassessed is for this requirement to be included in the order appointing the guardian. If no such order is made, there is little an individual can do to compel a court-appointed guardian to arrange for a capacity assessment. If a court-appointed guardian refuses to arrange or pay for an assessment, the ‘incapable’ person could bring a motion to court to obtain an assessment. However, where an individual subject to a court-appointed guardianship lacks sufficient resources to pay for an assessment, there is no guarantee that any other public authority would do so.[301]

 

  • QUESTION FOR CONSIDERATION: Do Ontario’s capacity assessment systems deal adequately with fluctuating levels of capacity? If so, what are some specific suggestions for how they might be improved in this respect?

 

Procedural Protections

All of the mechanisms contain some balance of procedural protections. For example, while MHA examinations of capacity to manage property do not include the right to refuse the assessment, there are fairly robust supports in the form of rights advisers for challenging the results of the assessment. Persons assessed for capacity to manage property or personal care under the SDA have some significant procedural protections, whether through the statute or through the mandatory Guidelines, including the right to refuse an assessment, to receive information about the assessment, to receive written notice of the findings, and in some cases, to review by the CCB; however, they do not have access to supports analogous to the rights advisers.  It is a valid question as to whether the correct balance has been struck in each case. 

The greatest concerns about procedural protections have been identified for evaluations of capacity to consent to admission to long-term care. An assessment that a person lacks capacity, while a one-time assessment, is likely to have very significant consequences; however, the statutory protections are sparse. This, combined with the relatively low requirements for training, raise concerns about the protection of basic rights of individuals in this assessment process. As well, there are several situations where individuals have no straightforward recourse to challenge an assessment, other than by paying for a new assessment, which may well be beyond their means.

As is noted elsewhere, there may also be problems with the implementation of existing procedural protections: for example, the Advocacy Centre for the Elderly has raised concerns with the provision of rights information to persons found legally incapable with respect to treatment or admission to long-term care, particularly since the policies regarding the provision of rights information are largely left to the regulatory colleges.[302]

 

  • QUESTION FOR CONSIDERATION: For each of Ontario’s systems for assessing capacity, does it strike the appropriate balance between formality, procedural protections, accessibility and efficiency?

 

2.     Issues Frequently Arising in the Law as It Affects Persons with Disabilities and Older Adults

A review of Ontario’s capacity assessment systems reveals patterns of challenges that are consistent with barriers identified in the LCO’s two Framework projects. These are challenges that will tend to arise in designing any set of laws, policies or practices affecting persons with disabilities or older persons, but of course they manifest in particular ways in the context of the laws of legal capacity, decision-making and guardianship, and of capacity assessment systems. 

Complexity and Navigation

The diversity of Ontario’s multiple capacity assessment systems aims to respond to particular contexts and types of decisions, but does itself raises issues. It adds considerably to the complexity of the system, for both individuals and families, and for professionals. It may not always be clear through which avenue a particular individual should be proceeding: for example, during preliminary consultations, a number of individual raised concerns that some older adults might be finding themselves inappropriately examined for capacity to manage property under the MHA, rather than by a Capacity Assessor under the SDA. As well, one individual might find her or himself assessed multiple times in different systems, particularly those individuals whose needs are complex or multiple. 

As well, many of the capacity assessment systems are in themselves fairly complex, in part due to well-intentioned efforts to respond to diversity in particular circumstances and to provide an adequate balance of procedural protections and efficient operation.

As the Final Report: A Framework for the Law as it Affects Persons With Disabilities notes,

[C]omplexity can itself create a challenge, both for persons with disabilities and for service providers and advocates who attempt to assist individuals in navigating the system. Laws that are well-intended may fail to achieve their purposes, because they are effectively inaccessible for persons with disabilities who do not have the supports and resources necessary to understand and make use of them. Persons with disabilities may not be able to make meaningful choices because they are not aware of the options available to them, or perceive them to be too difficult to exercise.[303]

The response to complexity is not necessarily to simplify systems (although this is obviously one alternative); another approach may be to increase the formal provision of information, supports, oversight and advocacy for those who are likely to have difficulty in navigating the system, options for which are described in Part IV of this Paper.

 

  • QUESTION FOR CONSIDERATION: Are standards for the assessment of capacity under the various systems sufficiently clear, consistent and stringent? If not, what are some specific suggestions for how they might be improved?

 

Complaints and Oversight

Oversight of the various capacity assessment systems occurs, generally speaking, in two ways: through the education programs, policies and standards of the various regulated health professions and the associated complaints mechanisms of the health colleges, and through challenges to capacity assessments either through the CCB, or through a section 39(1) application to the court under the SDA for persons who have a continuing power of attorney for property and who have been found legally incapable. For those who are assessed by an approved Capacity Assessor, there are additional safeguards, in that the assessor must provide the CAO with copies of two recent assessments each second year for review and feedback, and must perform a minimum number of assessments in order to retain their status. For some types of assessments, some level of practical oversight may be provided through the large institutional employers with whom the professional conducting the assessment is affiliated. 

Oversight therefore takes place largely through complaints. It appears that it is relatively rare for complaints regarding assessments to be made to the regulated health colleges. The Advocacy Centre for the Elderly has commented that “the complaints process is lengthy and, if legal counsel is retained, expensive. Some of our clients opt not to make a complaint because it will take too long to address a problem that needs to be addressed immediately.”[304] While a discussion of the strengths and limitations of the CCB will be undertaken in Part Four, Chapter II on dispute resolution mechanisms, the CCB provides an impartial and expert avenue for review of assessment, and as an administrative tribunal, it is relatively less cumbersome and costly than a court-based review would be. It is of note that it is relatively rare for assessments to be overturned by the CCB: as was noted above, Hiltz and Szigeti have commented that that historically, less than 10 per cent of applicants have been found capable of consenting to treatment upon appeal to the Board.[305] 

While it is important to provide avenues whereby individuals may seek redress for their particular issues, both the Framework projects identified risks and disadvantages where systems that serve vulnerable populations rely entirely on complaints as a means of oversight. The Final Report: A Framework for the Law as It Affects Older Adults notes that,

Complaint-based systems leave decisions about action to the initiative of older adults. This may be understood as respecting the autonomy of older adults. In some circumstances, however, complaint-based systems may be problematic, particularly where older adults are at-risk or marginalized due to disability, low-income, immigration status or other issues … As well, complaint systems may involve expenses, bureaucratic obstacles, or delays beyond the capacity of vulnerable older persons to absorb … Where services are targeted to at-risk older adults … systems that rely entirely on older adults to identify issues and pursue remedies may fall short of addressing needs.[306]

The possibilities for oversight vary considerably from mechanism to mechanism. Some types of assessments take place in heavily regulated settings, such as hospitals, and are carried out by professionals who are highly professionalized and bound by relevant standards and ethical codes. Other types of assessments take place in private settings and are much less amenable to oversight.

 

  • QUESTION FOR CONSIDERATION: Is there sufficient monitoring and oversight of the various types of capacity assessments in Ontario? If not, what are some specific suggestions for how the various capacity assessment systems could be improved in this respect?

 

Access to Information, Advocacy and Supports

Access to information about laws, policies and programs, about their potential impact and how to access them, is fundamental to access to justice. All of us may face challenges in accessing and understanding this information, but as was noted in the Frameworks for older adults and for persons with disabilities, individuals who are older or who are living with a disability or both may face additional barriers to accessing information. Some of these barriers may arise from a lack of disability accessibility – for example, a lack of information in alternative formats or websites that post information only in a PDF format. Some populations will have lower levels of print or technological literacy than the population at large, due to historical trends (for example, older women will generally have faced in their youth reduced expectations and opportunities related to education) or particular educational barriers (as have been widely documented for persons with some types of disabilities). The trend away from the provision of information by individuals (whether by telephone or in person) towards online information will therefore create disadvantages for some. As well, increasingly complex telephone information systems will also create barriers to access for some. Persons living in long-term care homes will, by the nature of the setting, have some reduced access to information.[307] During the LCO’s public consultations towards the development of its Framework for the Law as It Affects Older Adults, one of the most pervasive themes was the lack of knowledge among older adults about their rights and how to access them. During focus groups, many participants had difficulty in identifying where they might go to access information about rights and responsibilities. 

Where laws, policies and practices are complex or have high-stakes results or both, the importance of access to information becomes particularly acute. Law, policy and practice related to the assessment of capacity is both complex and high stakes. It is positive to note, therefore, that the legislative framework has included some requirements (varying between mechanisms) that aim to address this issue. Examples include the duty to inform individuals about the nature of an assessment and its potential impact, the provision of rights advisers in some cases, or the duty to provide information about rights to challenge an assessment in others.

However, concerns remain about access to information for those who are being assessed. Some difficulties are inherent to the nature of the law: many of those affected by capacity assessment will be in crisis (for example, ill and hospitalized), vulnerable or marginalized, or needing extra information supports due to the nature of the disability that has triggered the assessment. Provision of information takes on extra importance in these circumstances; it also takes on extra challenges.

For this reason, the provision of information itself may be seen as insufficient without the provision of additional formal individual advocacy and supports. Issues related to advocacy and supports will be dealt with at some length in Part Four, Chapter III. It is sufficient to note here that the current legislative scheme was originally envisioned as including extensive independent advocacy through the Advocacy Commission; the repeal of the Advocacy Act without the creation of thorough-going compensating changes elsewhere in the legislation has been seen by some as fundamentally ‘unbalancing’ the legislative scheme.

This is not to say that there have not been considerable efforts put into advocacy and information provision within the confines of the current legislation. Many organizations, including the Capacity Assessment Office, the ARCH Disability Law Centre and the Ontario Network for the Prevention of Elder Abuse among many others, have put considerable effort into public legal education. There are plain language materials available from a variety of sources; for example, some hospitals have developed plain language brochures and fact sheets about capacity assessment and the roles of substitute decision-makers, which they provide to those that need them. The Psychiatric Patient Advocate Office (PPAO) plays a vital role in the current system, as do the specialty legal clinics that provide both individual and systemic advocacy on these issues as they are able. Nevertheless, a significant gap has been identified, and remains of concern.

 

  • QUESTION FOR CONSIDERATION: Are there barriers to accessing Ontario’s capacity assessment systems? If so, what are some specific suggestions for how these systems can be made more accessible?

 

E. Questions for Consideration

  1. How does the experience of capacity assessment differ depending on gender, sexual orientation, racialization, language, culture, socio-economic status, Aboriginal status, geographic location, various forms of disabiity  or other forms of diversity?
  2. For each of Ontario’s mechanisms for assessing capacity, does it strike the appropriate balance between formality, procedural protections, accessibility and efficiency?
  3. Who should carry out the various types of capacity assessments required? What type of training and education should they receive? How should this training be delivered?
  4. Is there sufficient monitoring and oversight of the various types of capacity assessments in Ontario? If not, what are specific suggestions for how the various capacity assessment mechanisms could be improved in this respect?
  5. Are standards for the assessment of capacity under the various mechanisms sufficiently clear, consistent and stringent? If not, what are specific suggestions for how they might be improved?
  6. Would Ontario benefit from greater harmonization, coordination or simplification of its various capacity assessment mechanisms? If so, what are specific suggestions for how this might be achieved?
  7. Do Ontario’s capacity assessment mechanisms deal adequately with fluctuating levels of capacity? If not, what are specific suggestions for how they might be improved in this respect?
  8. Are there barriers to accessing Ontario’s capacity assessment mechanisms? If so, what are specific suggestions for how they can be made more accessible?

 

 

 

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