A.    Introduction

The legal concept of “capacity” is central to the law related to decision-making, serving as both its rationale and the threshold for its application. Generally, persons who are considered to have legal capacity are entitled to make decisions for themselves and are held responsible for those decisions, including decisions that others may consider reckless or unwise. On the other hand, persons who have been determined to lack legal capacity in a particular domain or for a particular decision may lose the right to make decisions for themselves independently in that area: others will be responsible for making decisions on their behalf, and can in law be held accountable for how those decisions are made. 

Legal capacity has been defined in different ways at different times and for different purposes. At some times and in some jurisdictions, it has been tied to the diagnosis of particular disabilities, in what has been referred to as the “status” approach to defining capacity. At other times, an “outcome” approach has been taken, which focusses on whether the individual in question is making “good” decisions – that is, whether the decisions that the individual is making are within the bounds of what might be considered reasonable.[51] Ontario’s approach, like that of many other common law jurisdictions, is based on a cognitive and functional approach, which emphasizes the ability to make a specific decision or type of decision at a particular time, evaluating the abilities of the individual to understand, retain and evaluate information relevant to a decision. This approach was adopted following the extensive work resulting in the 1990 Report in the Enquiry on Mental Competency, chaired by David Weisstub.[52] 

Because the test for legal capacity determines the threshold for the application of the law, and because the consequences of a determination regarding legal capacity may be momentous, approaches to legal capacity are highly contested.  The relatively abstract nature of the concept of capacity, embedded as it is in multiple intersecting legal, ethical, medical and social concepts and realities, makes these debates challenging.

Adding to the challenge is the difficulty of operationalizing the concept of legal capacity, particularly the nuanced approach adopted in Ontario’s laws. It may be difficult to disentangle implementation issues from shortfalls in the conception itself. In this Interim Report, Ontario’s systems for assessing legal capacity are dealt with in Chapter V.

Finally, the concept of legal capacity and the critiques of it are closely tied to the ongoing debate regarding the concept of “supported decision-making” as an alternative to substitute decision-making, in that some models of supported decision-making are grounded in a proposed fundamental shift in the approach to legal capacity. Issues related to alternatives to substitute decision-making are dealt with in Chapter VI of this Interim Report.

 

B.    Current Ontario Law

The following elements are fundamental to Ontario’s approach to legal capacity:

1.               Legislative presumption of capacity: the Health Care Consent Act, 1996 (HCCA) makes explicit a presumption of capacity for decisions within its ambit: this presumption prevails unless the health practitioner has “reasonable grounds” to believe the person is legally incapable with respect to the decision to be made.[53] The Substitute Decisions Act (SDA) sets out a presumption of capacity to contract, though not for other areas falling within the scope of that legislation. The Ministry of the Attorney General Guidelines for Conducting Assessments of Capacity which bind designated Capacity Assessors conducting Capacity Assessments under the SDA emphasize that when Capacity Assessors assess legal capacity, “in every case there is a presumption of capacity and there should be reasonable grounds that prompt the request for a formal capacity assessment”.[54]

2.               Functional and cognitive basis for assessment of capacity: basing the assessment of decisional capacity on the specific functional requirements of that particular decision, rather than on the assessment of an individual’s abilities in the abstract, the individual’s status or the probable outcome of the individual’s choice.

3.               The “ability to understand and appreciate” test: tests for capacity are based on the individual’s ability to understand the particular information relevant to that decision, and to appreciate the consequences of making that decision:[55] it is the ability that is most important, rather than the actual understanding or appreciation. While this subtle difference can be difficult to apply in practice, it allows for more individuals to meet the test, as the must only display the potential for understanding and appreciation, rather than actual understanding and appreciation: for example, while communication barriers might thwart actual understanding, they would not impair the ability to understand.

4.               Domain or decision-specific capacity: avoiding a global approach to capacity, so that determinations of capacity are restricted to the assessment of capacity to make a specific decision or type of decision. The SDA and HCCA provide specific tests of capacity for property management, personal care, creation of powers of attorney for property and for personal care, consent to treatment, personal assistance services provided in a long-term care home and admission to long-term care.

5.               Time limited determinations of capacity: since capacity may vary or fluctuate over time, the validity of any one determination of incapacity is limited to the period during which, on clinical assessment, no significant change in capacity is likely to occur. 

The SDA and HCCA include multiple tests for capacity, reflecting the domain/decision specific approach advocated in the Weisstub Report. While all are variants on the “understand and appreciate” test, in practice the requirements for meeting the test may be substantially different: for example, the information that must be understood and appreciated to create a power of attorney for personal care is substantially different (and less rigorous) from what must be understood and appreciated for the capacity to manage property. In this way, the “understand and appreciate test” can operate with great flexibility, responding to its application in different contexts and for different purposes. However, the underlying basis for the test – the requirement to have the ability to understand and appreciate particular information – is consistent across the various areas. 

It should be noted, however, that some statutory provisions refer to capacity, while others refer to incapacity, reflecting differences in context between the various domains in which legal capacity is assessed. Health care practitioners, for example, have an affirmative duty to take reasonable steps to ensure that the person is capable and has given consent. The HCCA therefore defines “capacity”. Similarly, under the SDA, grantors must have capacity in order to create a valid POA. On the other hand, for the management of property and personal care, statutory guardianship and POAPCs take effect only when the person is assessed as incapable (the requirements as to who makes this assessment varies) and the definitions in the statute are for incapacity. A person who might be incapable with respect to property management if assessed might in reality not need to make any significant decisions with respect to property or might have informal supports that make a formal finding of incapacity and an appointment of a substitute decision-maker unnecessary.

 

C.    Areas of Concern

1.     Article 12 of the Convention on the Rights of Persons with Disabilities 

The most fundamental critique of Ontario’s functional and cognitive approach to legal capacity takes as its starting point the rights enunciated in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).[56] The CRPD codified the commitments of the international community with respect to the rights of persons with disabilities, detailing the rights that all persons with disabilities enjoy and outlining the obligations of States Parties to protect those rights. Its purpose is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.[57] It reflects social and human rights models of disability and therefore highlights the need for society to adapt to the specific circumstances and realities of persons with disabilities in order to ensure respect and inclusion.  

Article 12 requires States Parties to take certain actions, specifically to:

·       recognize persons with disabilities as persons before the law;

·       recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life;

·       take appropriate measures to provide access for persons with disabilities to the supports they may require in exercising their legal capacity;

·       ensure that all measures related to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse.  These safeguards must ensure that measures related to the exercise of legal capacity respect the rights, will and preferences of the person; are free of conflict of interest and undue influence; are proportional and tailored to the person’s circumstances; apply for the shortest time possible; and are subject to regular review by a competent, independent and impartial authority or judicial body.

·       take all appropriate and effective measures, subject to the provisions of the Article, to ensure the equal rights of persons with disabilities in a range of areas, including owning or inheriting property; controlling their own financial affairs; having equal access to bank loans, mortgages and other forms of financial credit; and ensuring that persons with disabilities are not arbitrarily deprived of their property.[58]

There has been considerable debate about the implications of Article 12 for approaches to decision-making. In brief, some commentators view Article 12 as protecting individuals from discriminatory determinations of incapacity based on disability status. Other commentators view Article 12 as creating an inalienable and non-derogable right for persons with disabilities to be considered as legally capable at all times. 

The former view appears to have been that of Canada when it ratified the CRPD: at that time, it also entered a Declaration and Reservation, which states that “Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”.[59] It declares Canada’s understanding that Article 12 permits substitute decision-making arrangements as well as those based on the provision of supports “in appropriate circumstances and in accordance with the law”, and reserves the right for Canada “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”. 

The latter view, that legal capacity is an irremovable right of all individuals in all circumstances, was taken in the General Comment developed by the Committee on the Rights of Persons with Disabilities.[60] General Comments “are the result of a wide process of consultation and, although not legally binding, are regarded as important legal references for interpretation and implementation of specific aspects of the treaties”.[61] In the view of the Committee, “there is a general misunderstanding of the exact scope of the obligations of State parties under article 12”.