A. “Legal Capacity”: Setting the Standard
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART TWO CH I
The concept of “legal capacity” underlies this entire area of the law, and is both complex and contested. Under the SDA and HCCA, where a decision must be made and an individual lacks “legal capacity” to make that decision, a substitute decision-maker is appointed to do so. This means that concepts of legal capacity are closely connected to concerns about autonomy, personhood and security, in that it is tied to the ability to make independent decisions and take responsibility for their consequences.
Ontario has adopted a functional and “cognitive” approach to legal capacity, meaning that capacity is determined by an individual’s ability to “understand and appreciate” the information relevant to the decision. Legal capacity does not depend on an individual’s medical status or on the wisdom of her or his decisions. The SDA and HCCA set out specifically what information an individual must understand and appreciate in order to have capacity to make different decisions, such as decisions about admission to long-term care, to make decisions about health care treatments, or to make a power of attorney for property, for example. This means that tests for legal capacity are specific to their particular “domain” or issue.
Some have raised concerns that Ontario’s approach to legal capacity is poorly understood and inadequately applied in practice. The multiplicity of specific tests for legal capacity may contribute to confusion around the application of the concept.
As well, because Ontario’s approach to legal capacity draws a clear line between those who have legal capacity and those who do not, it has some difficulty in adequately accommodating individuals who fall into the “grey zone” or whose decision-making abilities fluctuate. There are also concerns that in practice the test may be difficult to apply, so that assessment may improperly consider actual understanding and appreciation of the information rather than the ability to understand and appreciate, or that an assessment of the appreciation of consequences may collapse into an assessment of the wisdom of a decision.
Some raise a more fundamental critique that this cognitive approach to legal capacity is incompatible with the human rights of persons with disabilities, in that the right to make decisions should not be restricted on the basis of capabilities associated with some types of disabilities. Persons with disabilities that affect their ability to “understand and appreciate” can still make decisions, it is argued, through supports offered through close and trusting relationships. These critics advance as an alternative to cognitive tests for legal capacity an approach that is based on the individual’s ability to manifest “will and intention” to others who know him or her well.
Please share your thoughts on any or all of these questions:
1. What are the most important implications of the Framework principles for approaches to and standards for legal capacity in Ontario law?
2. Are there specific ways in which the current “ability to understand and appreciate” test for legal capacity should be clarified in order to improve its implementation? Or are there other means through which practical guidance on its application could be provided? Are there specific ways in which the legislative test should be amended to better reflect the social and contextual aspects of legal capacity?
3. Should a test for legal capacity based on “will and intention” of the individual be adopted for some or all aspects of Ontario’s decision-making and guardianship laws? If so, in what circumstances would such a test be appropriate, and how would this standard for capacity be assessed?
B. Systems for Assessing Legal Capacity
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART TWO CH II
In keeping with its domain-specific approach to legal capacity, Ontario has several systems for assessing the legal capacity to make particular types of decisions. These differ in terms of who carries out the assessment, the procedural rights of individuals being assessed, information and supports available to those assessed, the costs for assessment and the consequences of a finding of incapacity. The five mechanisms are:
- Examination by treating physician of capacity to manage property upon admission to and discharge from a psychiatric facility (MHA);
- Assessment by specialized capacity assessor of capacity to manage property or personal care (SDA);
- Evaluation by health practitioner of capacity to consent to treatment (HCCA);
- Evaluation by capacity evaluator of capacity to consent to admission to long-term care and of capacity to consent to personal assistive services (HCCA);
- Assessment of capacity to create a power of attorney for property or personal care (SDA).
In responding to their particular contexts, each of the capacity assessment systems strikes a different balance in terms of levels of formality, procedural protections and accessibility. There are specific issues with each of the systems. For example, while capacity assessment for property and personal care under the SDA are performed by specialized individuals who must meet standards for training and carrying out the assessment, they are relatively costly, which may pose barriers to accessibility and to reassessment. There are particular concerns about evaluations of capacity to consent to admission to long-term care: while the consequences of such a determination may be dramatic, the procedural protections are relatively minimal compared to those for some other forms of assessment and the standards for capacity evaluators are not as rigorous as for capacity assessors.
While the multiple systems allow for responsiveness to specific contexts, they also create confusion and complexity, both for professionals and for individuals attempting to navigate the system. Particular concerns have been raised regarding the relationship between examination for capacity to manage property under the MHA and assessments for capacity to manage property under the SDA. There are also concerns about the level of information and supports available to individuals and families who are affected by assessments of capacity: without adequate information and supports, these people may be unable to access the services that they need, or to access and enforce their fundamental rights.
Levels of training, standards and oversight for those assessing capacity vary considerably between systems, with that for capacity assessors under the SDA being the most rigorous and thorough. There are general concerns about the level of expertise and monitoring of those who assess capacity, with commentators pointing to pervasive misunderstandings of the nature of and test for legal capacity, inadequate implementation of existing procedural protections, a lack of clear standards for assessing capacity and inadequate mechanisms for monitoring and overseeing the quality of the assessments that are carried out.
As well, some current mechanisms may not adequately address the fluctuating nature of legal capacity in some populations. This is particularly a concern for assessments of capacity to manage property or personal care under the SDA, which lead to long-term consequences for those assessed through this mechanism.
Please share your thoughts on any or all of these questions:
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 disability 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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