A. Introduction and Background
Because of the potentially momentous implications of a determination of legal capacity, it is essential that the mechanisms that are in place for assessing it are effective and just. 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. 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.
Capacity assessment is in many cases the entry point to the Substitute Decisions Act, 1992 (SDA) or the Health Care Consent Act, 1996 (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.
As will be discussed below, Ontario’s legal capacity, decision-making and guardianship laws include multiple means of assessing capacity, including examinations for capacity under the Mental Health Act (MHA), evaluations of capacity to consent to admission to long-term care under the HCCA, assessments of capacity to consent to treatment under the HCCA, formal Capacity Assessments by a designated assessor under the SDA, and informal assessments of capacity by service providers. 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 Assessment” using the upper case, it is referring specifically to assessments carried out under the SDA regarding property and personal care.
B. Current Ontario Law
Ontario’s systems for assessing legal capacity in the various domains of decision-making are described at length in Part II of the Discussion Paper. What follows here is a brief overview.
Ontario might best be described as having, not a system for assessing legal capacity, but a set of systems for assessing capacity. In keeping with the general approach of the reforms that lead to Ontario’s current legislation, assessment systems are specific to particular types of decisions. The SDA, HCCA and MHA collectively set out four formal 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) Capacity Assessments regarding the ability to make decisions regarding property or personal care (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 to the process and accountability, preservation of autonomy and protection of the vulnerable that underlie this process.
While the various capacity assessment systems vary in their levels of process and the challenges of navigation as among themselves, the existence of multiple 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 their lives. Professionals who conduct assessments 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 ambiguity and confusion related to the intersection and interaction of the systems.
2. Informal Assessments of Capacity
Service providers regularly informally assess legal capacity, to determine whether a particular individual can enter into an agreement or contract, or agree to a service. Certain service providers, such as health practitioners, have a legislated and long-standing duty to ensure that they have obtained valid consent to provide their services. Lawyers and paralegals will need to ensure that clients have the capacity to provide instructions, create a valid power of attorney, or to bring legal proceedings where appropriate. Service providers entering into contracts or agreements will have a strong interest in ensuring that the individual has the capacity to enter into the contract and that it is not voidable due to, for example, unconscionability or undue influence. In each case, this is a fundamental preliminary step to providing the service. If the consent or the agreement is not valid, there may be significant consequences for the service provider.
A decision by a service provider that an individual does not have legal capacity to agree to a particular service or enter into a contract may trigger entry into formal substitute decision-making arrangements in order to access the service, whether through the activation of a power of attorney or the creation of a guardianship by a family member.
The LCO’s project on Capacity and Legal Representation for the Federal RDSP provides an example of this dynamic. To open a federal Registered Disability Savings Plan through a financial institution, there must be a plan holder who is “contractually competent”. Where a financial institution does not believe that an individual has the legal capacity to be a plan holder, it may decline to enter into a contract. Currently, in these situations, the would-be beneficiary may need to seek a legal representative, such as a guardian of property or a person acting under a power of attorney for property, to open an RDSP.
These types of informal assessments thus play a very important role in the practical operation of Ontario’s legal capacity, decision-making and guardianship system. The way in which these assessments are carried out may have a significant impact on the breadth of application of substitute decision-making in Ontario.
During the LCO’s preliminary consultations, some service providers expressed discomfort with their role in assessing legal capacity, indicating that they felt that they did not have sufficient expertise or skill to carry out assessments appropriately, and noting that it did not always fit naturally with other aspects of their role. This is particularly true where legal capacity and decision-making law is only a small part of the work that service providers are doing, and issues arise only on an infrequent basis. In many service organizations, it is front-line workers who will be directly encountering issues related to legal capacity and decision-making, and who will be tasked with identifying potential issues and applying correct procedures. It is also at the front-lines where pressures related to limited resources, competing needs and the tension between standardization and responsiveness to individual needs will be most acute.
Service providers will want to feel secure that they can reasonably rely on the decisions that individuals make as they interact with them as valid in law, particularly where legal capacity is lacking or unclear.
During the consultations, the LCO heard concerns that unduly risk-averse approaches to assessment by service providers, or approaches that seem to be based on assumptions or stereotypes about certain groups of individuals, may have the effect of pushing individuals unnecessarily into formal substitute decision-making arrangements.
3. Examinations of Capacity to Manage Property under the Mental Health Act
These assessments, which are governed by Part III of the MHA, were intended to provide a speedy and simple mechanism for ensuring that those admitted to psychiatric facilities did not thereby lose their property due to temporary inability to manage it. 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 the physician has reasonable grounds to believe that the person has a continuing power of attorney that provides for the management of the person’s property. These examinations are performed by a treating physician, usually a psychiatrist. A re-examination of the patient may take place at any time while the patient is in the facility, and must do so prior to discharge. At the time of discharge, the certificate must either be canceled or a notice of continuance ordered. 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). The PGT then becomes the patient’s statutory guardian of property, unless the patient has a springing POA. If the physician fails to re-examine the patient prior to discharge, the guardianship of the PGT or any replacement will terminate.
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 has been applied for the purposes of determining the capacity to manage property under the MHA.
Patients admitted to a psychiatric facility are not entitled to refuse the examination to determine their capacity to manage property. However, they are afforded substantial procedural rights, including the right to receive notice that a certificate of incapacity has been issued; the right to timely provision of a rights adviser; and the right to apply to the Consent and Capacity Board (CCB) to review the assessment. As with the provision of all rights, however, the ability to exercise the rights has to be taken into account in determining how meaningful the rights are.
4. Assessments of Capacity to Manage Property or Personal Care under the Substitute Decisions Act, 1992
Other than MHA examinations of capacity to manage property on admission to a psychiatric facility, 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. Capacity Assessments with respect to the management of property or personal care may be triggered in a variety of ways and for a number of different purposes, including to create a statutory guardianship for property; to bring into effect a power of attorney for personal care or property that is contingent on a finding of incapacity; to challenge or reverse a previous finding of incapacity; or to provide evidence in an application for court-appointed guardianship; or when ordered by a court. They 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.
Only a qualified Capacity Assessor can conduct a statutorily required Capacity Assessment under the SDA. To be designated as a Capacity Assessor, a person must be a member of one of the following health regulatory 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). Qualified Capacity Assessors must have completed the requisite training and requirements to maintain qualification, which are significant. The Capacity Assessment Office (CAO) of the Ministry of the Attorney General maintains a list of designated capacity assessors.
Capacity Assessors must comply with the Guidelines for Conducting Assessments of Capacity established by the Ministry of the Attorney General. 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 health regulatory college. 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.
The SDA sets out a number of procedural rights for persons undergoing these Capacity Assessments, including a right to refuse an Assessment (with some exceptions), a right to receive information about the purpose, significance and potential effect of the Assessment, and a right to receive written notice of the findings of the Assessment. For cases involving a finding of incapacity to manage property for the purposes of establishing a statutory guardianship in favour of the Public Guardian and Trustee (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. As well, for persons who become subject to statutory guardianship, there is a right to apply to the CCB for a review of the finding of incapacity, within six months of that assessment.
5. Evaluations of Capacity with Respect to Admission to Long-Term Care and Personal Assistance Services
The HCCA sets up a specific assessment process under Part III for decisions related to admission to long-term care homes (as defined in the Long-Term Care Homes Act, 2007) and under Part IV for consent to personal assistance services. 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 hospital, for example. 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