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 move into long-term care will often require a decision to sell one’s home to finance the long-term care, or to give up an apartment.
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 regulatory college of a limited list of professionals: audiologists and speech-language pathologists, dietitians, nurses, occupational therapists, physicians and surgeons, physiotherapists, psychologists and social workers. Although in reality those who perform evaluations may undergo additional training, there is no legal requirement that they do so.
There is no guidance in the HCCA or regulations regarding 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 above. There is, however, a five-question form known as the “evaluator’s questionnaire”, so ubiquitous as to be almost standard practice. 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. In addition to this 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.
As is the case with assessments regarding consent to treatment, oversight of capacity evaluators is carried out through the health regulatory 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 for the information about the effects of their findings to be provided to the individuals they evaluate.
An individual undergoing a capacity evaluation under the HCCA is entitled to the same rights as with an assessment of capacity to consent to treatment under Part II of the HCCA. 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 the individual found to be incapable and boxes the evaluator should check indicating that the evaluator has informed the person of the finding of lack of capacity and of his or her right to apply to the CCB. 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 principles of natural justice.
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.
6. Assessments of Capacity with respect to Treatment Decisions
Assessment of capacity to make treatment decisions is regulated under Part II of the Health Care Consent Act, 1996. The HCCA requires valid consent to treatment: if a health care practitioner is of the opinion that a person is incapable with respect to the treatment, then the person’s substitute decision-maker must consent on the person’s behalf in accordance with this Act. A health practitioner is entitled to rely on the presumption of capacity, unless the practitioner has reasonable grounds to believe that the person is incapable with respect to the proposed treatment:  where such reasonable grounds exist, the practitioner must assess to determine whether the person is capable of providing consent. This must take place any time a health treatment is proposed; the legislation applies equally inside or outside of a hospital, long-term care facility or doctor’s office.
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 or capable with respect to a treatment at one time and not at another. The treatment-specific nature of legal capacity means that a new assessment must be done if a new type of treatment is proposed.
There is no specific required training related to assessing capacity outlined in the HCCA or regulations. However, each college regulates the mandatory qualifications for membership, and may provide guidelines or publications that address the importance of obtaining consent before administering treatment. Health practitioners may also receive training from their employers. There are also a number of publications by advocacy organizations and experts that can be used by practitioners.
The rights of patients with regard to notices of a finding of incapacity and the right to apply for review, for example, depend on where the patient may be located at the time of the finding, and on the rules of the health regulatory college governing the professional who makes the finding. 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. 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 health regulatory college to which the practitioner belongs. Generally, colleges require that the health practitioner inform individuals who have been found legally incapable who their SDMs are and the requirements regarding their substitute decision-making role (if they are capable of understanding this information), as well as informing them about the 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.
Oversight is mainly performed by the health regulatory colleges. Health professionals are overseen by their respective colleges. Patients can make a complaint to the practitioner’s health regulatory college if they believe the practitioner did not follow the proper procedure or over-stepped their authority.
C. Areas of Concern
Issues related to assessment of legal capacity were the focus of considerable interest and discussion during the LCO’s public consultation. The concept of legal capacity and its operationalization raise some of the most difficult issues in this area of the law. Assessments of capacity may be misused or misunderstood. There is confusion as to the multiple mechanisms for assessing capacity, and the standards for assessing capacity. As well, there is considerable concern regarding the provision of procedural rights to persons who are assessed under the HCCA.
1. Misunderstandings of the Purpose of Assessments of Capacity and Their Misuse
A formal assessment of capacity may be a very upsetting and stressful experience for individuals, and may be felt to be a significant invasion of privacy. Courts have recognized that a capacity assessment is an “intrusive and demeaning process” and a “substantial intervention into the privacy and security of the individual”. An assessment may also have very significant and long-term ramifications for the autonomy of the individual should it result in a finding that the individual lacks legal capacity. It is therefore important that assessments of capacity not be performed unnecessarily, or for purposes unrelated to the intent of the legislation.
Ontario’s legislation emphasizes the presumption of capacity in specified circumstances, including the ability to contract and to consent to treatment, and this should deter the inappropriate use of assessments of capacity. The Ministry of the Attorney General Guidelines for Conducting Assessments of Capacity, which apply to Capacity Assessments under the SDA, emphasize, “In every case, there is a presumption of capacity and there should be reasonable grounds that prompt the request for a formal capacity assessment. Routine screening of whole classes of individuals cannot and should not be endorsed, as this prejudges an individual’s capacity based on class membership”.
However, as is true throughout this area of the law, in considering the issue of assessments of capacity it is important to take into account that this legislation is implemented in the context of particular supports and services, some of which are under enormous pressure. These pressures shape the application of the law, as families and professionals may attempt to employ it for means not intended, to solve the problems with which they are faced. No reform to the SDA, HCCA or MHA will by itself reduce or remove these pressures, and therefore no reform to the legislation will on its own resolve the problem of misapplication.
I also, and this might be a really naïve thought and question, but based on my experience which is reading some of the families that I work, with their experiences there seems to be a discrepancy sitting around the table too around the intention or the outcome of assessments. I can think of a family specifically who had applied for one intended outcome and gone through the process and had misunderstood it completely… As we talk I realize, and I wonder if this isn’t part of the education piece too, if there needs to be some further education and training around the intended outcomes of these things. Are they to provide independence or are they to support families who are literally breaking apart at the seams?
Focus Group, Advocacy and Service Organizations, October 2, 2014
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 individuals or their assets, creating an incentive for abuse or misuse. 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”. Rather, Capacity 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 Capacity Assessment in an ongoing rivalry with another family member. 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. The potential for these kinds of issues is apparent from the caselaw. The burden of dealing with potentially conflicting agendas and the possibility of nefarious purposes falls on the Capacity Assessor.
Issues of legal capacity intersect in complicated ways with issues related to risk and vulnerability. While most would acknowledge that capable individuals have the right to live at risk, and that foolish decisions are not themselves indicators of incapacity, in practice these concepts may become difficult to apply. A number of service providers and professionals discussed the moral distress that may be associated with the struggle to discern the ethically and legally appropriate course to take in difficult cases.
I would think the way I could respond to your question would be more about the impact that it has for our staff when there is that uncertainty and the distress that they take home with them because they’re believing one way and they feel very strongly about their professional credentials and wondering, you know… we recently had someone because, you know, really go through some real moral distress around this particular issue because they didn’t feel as though it was really lining up with their professional judgment.
Focus Group, Community Health and Social Service Providers, September 26, 2014
In the focus groups, the LCO observed that there may be a blurring of lines in some areas between the purposes of legal capacity and decision-making legislation and adult protection goals: while issues of risk and abuse certainly overlap with issues of legal capacity, it is important to also understand the distinctions. As a result of these misapprehensions, SDA Capacity Assessments may be unnecessarily triggered: for example, family members of vulnerable individuals may unnecessarily trigger the Capacity 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 (for example, due to costs), and the Capacity 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.
I think sometimes it’s to get a quick solution … [to] a difficult situation or an issue, rather than kind of looking at that behaviour or whatever as some kind of meaning and some kind of needs that aren’t being filled. I mean, sometimes behaviours are really deceiving and people interpret that, you know, they can’t… they can’t do anything now so I’ll take full control.
Focus Group, Developmental Services Sector, October 17, 2014
I’ve had a few occasions now where a person, a resident isn’t comfortable having their family member act as their POA, because it’s changed the dynamic so much of that relationship. Or it’s the family member who says, I can’t take it anymore. I just want to be your daughter. I don’t want to have to take care of her money. So that’s often triggered a Capacity Assessment to be done, and then for PGT to take over. I’ve had that about five or six times.
Focus Group, Service Providers for Individuals Living with Dementia, October 21, 2014
Similarly, in terms of evaluations of capacity to consent to long-term care, family members may trigger an evaluation because they are concerned about the risks that the person is facing in the community and the level of supports that he or she is receiving.
I would just add that from the community side of things, I’ve often seen physicians that are very much pressured by whatever reports the adult children are giving. You know, mom’s leaving the pot on the stove, is a common one. You know, she’s having more falls at home. And I think that it probably sounds like the physician is feeling that pressure around the risks. And so it’s quite easy to say, yes, you know, I support that, you know, that she should be going to long-term care. And then we [the CCAC] come out and do the assessment, and then we might be telling the client and family, you know what? You’re capable, and we need to put other things in place, like get an automatic kettle, or, you know, and putting those things in. So I find that a bit of a… a bit of a challenge for sure.
Focus Group, Toronto Central Community Care Access Centre Staff, November 4, 2014
It has been pointed out that those conducting examinations of capacity to manage property under the MHA may face temptations to employ them in ways that address institutional pressures. 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 to force V to comply with the discharge plan. Concerns have also been raised that these examinations may be used as an “end run” around the requirements surrounding Capacity Assessments with respect to the management of property under the SDA. Jude Bursten, a patient rights advocate with the Psychiatric Patient Advocate Office (PPAO), reports that some physicians have requested that clients be admitted to a facility to force an examination of their capacity to manage property when these patients have exercised their right under the SDA to refuse an assessment. Since examinations under the MHA are of no cost, while Capacity Assessments involve a fee that may range from hundreds to thousands of dollars, there may be pressures to use the MHA provisions rather than those under the SDA.
These concerns are not unique to the Ontario context. The Victorian Law Reform Commission emphasized in its Final Report on guardianship the importance of ensuring that there is a valid trigger present to justify any assessment of capacity, 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”. Alberta legislation requires that there be a valid cause for concern in order to necessitate a capacity assessment with respect to property or personal care, that is, an event that puts the individual or others at risk and that seems to be caused by an inability to make decisions. Assessors in Alberta must know the reason that a capacity assessment has been requested and familiarize themselves with the circumstances leading to the request.
2. Access to Capacity Assessments under the Substitute Decisions Act, 1992
Capacity Assessments under the SDA are provided on a consumer choice model. The government ensures minimum standards through education and ongoing training requirements, and the provision of thorough guidelines. The Capacity Assessment Office (CAO) maintains a list of designated Capacity Assessors who have met the requirements. However, it is the responsibility of individuals and service providers who wish for a Capacity Assessment to be conducted to locate an appropriate Capacity Assessor from the list and to fund the cost of the Assessment, a cost which may vary from hundreds to thousands of dollars, depending on the nature and complexity of the Assessment required.
The CAO does make efforts to ensure that designated Capacity Assessors are available in regions across Ontario and will provide assistance to persons seeking to locate Capacity Assessors who are able to communicate in languages other than English.
The CAO also operates a Financial Assistance Program to cover the costs of a Capacity Assessment in situations where an individual (not an institution or agency) is requesting an Assessment and cannot afford the fees. Criteria for assistance under this Program include the following:
· the particular assessment required cannot, by law, be completed by anyone other than a designated Capacity Assessor (that is, an assessment by a Capacity Assessor as a “letter of opinion”, for example regarding capacity to create a will or POA will not be covered);
· the Capacity Assessment Office agrees that a Capacity Assessment is appropriate in the circumstances;
· the person is able to self-request or family member requests, and the person will not refuse the Assessment; and
· the individual requesting the Assessment meets the financial criteria to be eligible for financial assistance. The financial criteria are very restrictive, but would generally cover persons living on Ontario Disability Support Program payments, or an older adult whose income was restricted to Canada Pension Plan and Old Age Security payments. 
It should be kept in mind that where a guardian of property is appointed through a Capacity Assessment, the guardian can provide reimbursement for the costs of the Assessment from the incapable person’s funds if there is sufficient money to do so
Concerns about the accessibility of Capacity Assessments were raised throughout the consultation. It is important to remember that Capacity Assessments are necessary, both for entry into guardianship and also for exit, and therefore their accessibility is a matter of significant importance to families and to individuals affected by issues related to legal capacity.
In keeping with the observations of Jude Bursten, noted in the previous section, it has been suggested to the LCO that there is sometimes pressure by physicians or other professionals in the system to gain entrance to the MHA examinations for capacity to manage property because these examinations produce the same results as a Capacity Assessment (statutory guardianship, should the person be found to lack the capacity to manage property), but are no cost and do not require the consent of the person to be examined.
The cost of Capacity Assessments was a significant concern for many community organizations and service providers who work with populations affected by issues related to legal capacity.
One of the barriers that I’ve seen from a financial capacity [assessment] is the cost. Making way for a Capacity Assessment. You know, when you’re mentioning it and it could be $400 for something, that really is, it’s a lot of money for people here. That’s one thing I’ve seen.
Focus Group, Service Providers for Individuals Living with Dementia, October 21, 2014
There’s no consistency or standardisation on the ability to administer. And I know I’m stupid in this area but when I think about those kind of dilemmas, right, well, this person really could benefit from a competency assessment but it’s going to cost $2,000 to do it, why is that? Why is there that cost associated with something that might be… like, I can understand screening, screening, screening and then saying, yes, you meet the criteria to get a free competency assessment because if that’s the thing that’s preventing the person from getting the proper care, right, it doesn’t seem logical to me that someone should have to pay $2,000 to get a competency assessment when we’re trying to [improve] the person’s life and whatever. So, that… when you [another participant] were just talking about it I was thinking, well, that’s kind of crazy.
[Second speaker] And it’s very prohibitive for some people. Even if they do want to have it done in advance and have their wishes condoned. But it’s, obviously, not everyone can fork over that cash.
Focus Group, Community Health and Social Service Providers, September 26, 2014
Further, the CAO fund for Capacity Assessments is of relatively limited reach, and is not necessarily well-known or understood. The Ontario Brain Injury Association commented that
Specialized capacity assessments are also a costly procedure, leaving many concerned loved ones at a loss as to how they can best support the individual in question. Many people with an ABI [Acquired Brain Injury] are on Ontario Disability Support Program (ODSP) and their caregivers or concerned family/friends are not in any financial position to pay for an assessment. Having a subsidy, or provincially funded program for those who are on social assistance will ease the burden of the costly nature of the process.
The issue is not only one of cost, but also of navigation, as individuals are responsible for locating and selecting their own Assessors, based on the list that the CAO provides. This may be particularly difficult for individuals who are marginalized or low-income.
I don’t know what other people’s experience is in areas other than Toronto, here there’s quite a lengthy Capacity Assessor list but everyone’s independent on that list. There’s no, sort of, coordination around it. It’s the client’s individual responsibility to contact the Assessors, schedule and, sort of, negotiate all that type of thing. And that has been quite difficult. That itself has been a barrier for a number of clients in my experience. Particularly if they require an interpreter to communicate. But even if not, having the ability to have even voicemail accessible to return calls back and forth, all of these things are quite difficult. And not knowing what the expectations are of the Capacity Assessor either. That’s been hard for our clients.
Focus Group, Rights Advisers and Advocates, September 25, 2014
[T]he process itself isn’t even that good, there’s no central number, you’re calling each Assessor, like some of them are good, some of them aren’t, also. And then also trying to find different languages and all of that kind of stuff, right, so before you even start, it’s quite a process, and then the billing itself is also, you have to figure that out for like maybe, who’s going to pay, they all want it differently, like it’s a lot of work, it’s a pain.
Focus Group, Clinicians, September 12, 2014
Particular concerns were raised for persons in remote communities, including Aboriginal communities. In smaller or more remote communities, there may be no Capacity Assessors, or no Capacity Assessor with the necessary expertise. The cost of assessment will then significantly increase, because the costs of travel will be included in the fee, and these may be considerable. As well, the nature of the process may not work well for individuals who are low-income, or for particular communities.
In Thunder Bay we have a large northern community of Aboriginal communities and, again, that would be the same. No Assessor around there. The cost of flying in and out. But also the process is so bureaucratic. It’s too… it’s not user friendly, all this. So, it’s very difficult for a lot of the Aboriginal communities that, to understand what options they have and how to access those processes. How to get, you know, again, like, sometimes they don’t even have touch tone phones, you know, or they don’t even have a phone and voice message and all that to get a hold of a Capacity Assessor. And there’s no one to walk them through and assist them with that a lot of it.
Focus Group, Rights Advisers and Advocates, September 25, 2014
3. The Complex Relationships between Mechanisms for Assessing Capacity
The LCO’s consultations revealed widespread confusion about the roles and operation of Ontario’s multiple mechanisms for assessing capacity. This was true for individuals and families, and it was also surprisingly common among service providers. Sometimes service providers directly indicated their difficulties in understanding and navigating these systems, while in other cases, their confusion was apparent from the discussion, in which it was clear that particular service providers did not understand the scope of various types of assessments. Most service providers provide the majority of their services within one domain, and therefore with one type of assessment: interactions with the other mechanisms are not a daily occurrence, and so confusion may occur in these cases. It is also important to remember that these same service providers are often the most accessible guide to navigating Ontario’s legal capacity and decision-making system available to families and individuals: if they are not able to provide accurate information, they may unintentionally mislead these individuals. In particular, participants in the consultation identified confusions between SDA Capacity Assessments for personal care and capacity evaluations under the HCCA regarding consent to admission to long-term care or for personal assistance services, and between MHA examinations of capacity to manage property and SDA Capacity Assessments regarding property.
Especially at the CCACs we’ve noticed that there’s an understanding gap between, or rather even just, a language gap between the words assessment and evaluation. And people confusing the two or using the words interchangeably….
[Second speaker] Exactly, and one costs a lot of money and one is free. So, and people thinking that certain aspects, that the assessment provider, that also, that they can do an evaluation, which is not true at all. And vice versa. So, it is a, it’s a very blurred line that has been very difficult for us to, kind of, clearly point people towards a direction of, you know, as a care coordinator you can only perform an evaluation. If you want an assessment you must pay a Capacity Assessor to do this for you and it’s something that has been very challenging for us.
Focus Group, Community Health and Social Service Providers, September 26, 2014
I so often find, in practice, people will say, well, let’s get the Assessor in here. Well, you don’t need an Assessor. The evaluator, who may be the proposer… who is the proposer of the treatment, is the one evaluating. So, just some way of making sure that… I don’t know if it’s education or how it’s stated in law, to differentiate those rules.
Focus Group, Joint Centre for Bioethics, October 1, 2014
One is just the word capacity assessment because when people see it they automatically think they have to get a Capacity Assessor. So, I think we have to somehow make sure that people understand that we’re not talking about a Capacity Assessor when we say capacity assessment.
Focus Group, Rights Advisers and Advocates, September 25, 2014
In their paper, Health Care Consent and Advance Care Planning, the Advocacy Centre for the Elderly (ACE) and Dykeman Dewhirst O’Brien (DDO) noted that in focus groups with health practitioners,
There was some confusion expressed by health practitioners about who determines capacity for treatment. Some health practitioners were not confident that they knew how to assess the capacity of a patient to make treatment or other health decisions. Some thought that they were required to get a psychiatrist to assess capacity for treatment decision-making. A few health practitioners thought they would need to get a “Capacity Assessor” to perform this assessment.
ACE and DDO lawyers have also dealt with cases where health practitioners providing services in long-term care homes have assumed that a person was incapable for treatment if that person had been determined by an “evaluator” (as defined in the HCCA) to be incapable for admission to long-term care. These health practitioners may not have understood that capacity is issue specific and that a person could be capable for some or all treatment decisions although determined incapable for the decision for admission.
As was briefly referenced in the previous section, the parallel processes between assessments for property management under the MHA and the SDA are the source not only of confusion, but of practical difficulty for individuals who may at varying times fall within the scope of both systems.
I know from my perspective, there’s interaction between the Mental Health Act and Substitute Decisions Act, but I think entanglement is probably a better word, is really complex, is very difficult to try to explain to our clinicians, and is very, results down the line in a lot of difficulties for the family, and trying to explain to clients, yes, because there are situations where the client is an inpatient for a psychiatric facility and yes has no right of review for financial incapacity under the Mental Health Act, and trying to explain how that could be possible is very difficult. Part of that I think comes from the fact that the this financial incapacity piece has been embedded on the back of the Mental Health Act, completely seemingly separate from everything else that’s going on in the Substitute Decisions Act. So I think where that point of crossover is, where you sort of leave the realm of the Mental Health Act and enter the realm of the Substitute Decisions Act, there’s enhanced costs that come with it, right of refusal that comes with it. The fact that [unclear] raise obligations in costs associated with the assessments, is very challenging.
Focus Group, Clinicians, September 12, 2014
Clinicians commented that part of the need for a separate process under the MHA was that the costliness and cumbersomeness of Capacity Assessments under the SDA make it too difficult to ensure that MHA patients have their basic finances protected or for them to regain control over their finances once legal capacity is regained. As rights advisers pointed out to the LCO, the vast majority of individuals in the mental health system are living in low-income, and not only can they not afford a Capacity Assessment, but may not have the most basic wherewithal, for example in terms of access to a telephone, to arrange one. One clinician commented that “essentially you almost want to encourage them to how to become an inpatient, to be able to be assessed, and that sounds like a really broken system”.
I think the biggest issue is accessibility, so you have an outpatient client who isn’t doing that well, but even if you are able to see that as a clinician, there isn’t really accessible ways of getting that assessed in the community. So it’s kind of like you [another participant] were saying, it works well in an inpatient standpoint, but if you have an outpatient, it becomes very complicated, and I think also for families being able to navigate that, in the absence of some sort of clinician or case worker, that kind of help.
Focus Group, Clinicians, September 12, 2014
This is perhaps a greater issue now than when the legislation was initially passed, because of the trend towards outpatient treatment. Many psychiatrists, rights advisers and clinicians pointed to the cumbersome processes for reassessment for persons who transition from inpatient to outpatient.
The other thing that I’ve seen is very challenging from a client rights perspective or a patient rights perspective, is if the initial finding made as an inpatient, subsequently getting right of review to the CCB is exceedingly difficult, and we’re constantly, particularly if the client has been discharged and then readmitted, because they have remained under the statutory guardianship, they don’t have a MHA right of review, and for a lot of the clients, when I am giving the advice that what they have to do is get a new assessment, here’s a phone number for the PGT’s capacity office, I know that what I’m saying to them is, you will never have a CCB hearing about this. Being able to get an assessor and afford it, it’s not going to happen.
Focus Group, Clinicians, September 12, 2014
The Centre for Addiction and Mental Health’s submission addresses this issue, commenting that,
The inability of psychiatrists to perform examinations of capacity to manage property with their outpatients is a shortcoming of capacity, decision‐making and guardianship legislation that negatively impacts people with mental illness and leads to system inefficiencies. CAMH recommends making amendments to the MHA and/or SDA to ensure that they work cooperatively to facilitate assessments of financial capacity by qualified practitioners, including psychiatrists, in the community. Amendments must include standardized guidelines for when and how to examine capacity in community settings and patients must have access to the same procedural rights they are afforded in inpatient settings.
4. Lack of Clear Standards for Assessments under the Mental Health Act and Health Care Consent Act
As was described above, Capacity Assessors designated under the SDA must meet specified requirements for ongoing training, as well as comply with the thorough Ministry of the Attorney General Guidelines for Conducting Assessments of Capacity. Other forms of assessment of capacity are not regulated in the same way, and by and large, these assessments are mainly subject to the professional judgment of the practitioners who carry them out.
The SDA Guidelines do not apply to the examination of capacity to examine property under the MHA and guidelines for assessing capacity published by the relevant colleges 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.
One area of misunderstanding or misapplication of the MHA with respect to examinations for capacity to manage property relates to section 54(6), which dispenses with the requirement to make such an examination where “the physician believes on reasonable grounds that the patient has a continuing power of attorney under that Act that provides for the management of the patient’s property”. A lack of clarity regarding “reasonable grounds” together with misunderstandings of continuing powers of attorney for property may lead to confusion and gaps in rights in this area. Without appropriate enquiry, there may be a failure to determine whether the patient’s power of attorney for property actually covers all of her or his property, or is currently in effect, with the result that the safeguards against property loss intended by the MHA may not have effect. The individuals affected by this provision are not entitled to rights advice, exacerbating the issue. Because it is relatively much more common for older persons to prepare powers of attorney, this issue may have particular impact on older adults.
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. Evaluations of capacity with respect to admission to long-term care are generally conducted with reference to the five question form highlighted earlier, a document whose origins are cloudy, but which is widely treated as an “official” document. As already noted, 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.
Some organizations have created guides to capacity evaluations which recommend a more thorough approach. The most comprehensive of these is Assessing Capacity for Admission to Long-Term Care Homes: A Training Manual for Evaluators, prepared by Jeffrey Cole and Noreen Dawe. 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, and the Communication Aid to Capacity Evaluation (CACE), developed by Alexandra Carling-Rowland. 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 level of procedural protections to be afforded to persons subject to an evaluation of capacity is also unclear. By contrast with Capacity Assessments under the SDA, 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, individuals undergoing capacity evaluations may be entitled to some procedural rights based on the common law principles of natural justice. Notably, in Re Koch, Justice Quinn ruled that the basic standards set out in section 78 of the SDA with respect to Capacity Assessments, should also apply to assessments under the HCCA. Lawyers practicing before the CCB have noted that the decision in Re Koch has been inconsistently applied, as some adjudicators consider the comments of Justice Quinn as obiter. In Saunders v. Bridgepoint Hospital, a case involving evaluation of capacity to consent to admission to long-term care, Madam Justice Spies held 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.”
Another recurring theme in consultations was the confusion regarding the conduct of assessments of capacity to consent to treatment. As with capacity evaluations, training and guidance on assessments of capacity to consent to treatment are left to the health regulatory colleges, and these vary considerably from college to college. The abilities and level of confidence of health practitioners in carrying out assessments of capacity to consent to treatment therefore also varies widely.
What I notice a lot is, there’s much confusion. I will have physicians who are adamant with me, that say the college of physicians and surgeons says they don’t assess. And when I remind them that we all assess as health care providers, there’s, they don’t seem to comprehend. Yes. They don’t. It’s a real struggle, because it’s a legal context as well, not a medical context, in terms of… you know, so some people will incorrectly, as well, in the medical field, use things [unclear] or those other kinds of medical-based screenings for cognitive function, rather than understanding the whole capacity and that assessment of it. So, from the very beginning, it’s a challenge. And then, I guess, the other side of that coin is, actually, health care providers standing up and saying there needs to be a capacity, a licensed or authorised capacity assessment. What we’re challenging, interpretations of the capacity, and they may be different across family and health care provider person.
Focus Group, Service Providers for Individuals Living with Dementia, October 21, 2014
The lack of clear standards for assessments under the HCCA, together with shortfalls in training or education within some professions, creates confusion and anxiety around assessments under this Act, and a desire to defer the assessment elsewhere.
I think, in part, that people find assessing capacity [under the HCCA] difficult, because there are no standards. So, it’s like, there’s somebody who they believe somehow [has] more expertise; let’s get that person, and so I think there’s, kind of, the reluctance, because they’re just not sure how to assess capacity. I think that’s new clinicians, perhaps, or even if it could be a nurse practitioner who’s proposing treatment. I mean, maybe the doctors are in a better position, but the other ones who are… they may be thinking, I’m not qualified enough, even though I’m the occupational therapist and I’m proposing that. So, I think it could be just some… they think that other person just knows more. That’s, I think, one reason.
[Second speaker] I’ve seen this lots recently under several consultations, where you’re bringing in geri-psych because you think they have greater expertise, but it’s not an area in which they have the best expertise, and they don’t know the patient best of all. So, you know, they’re seeing the patient out of context and asking the wrong kinds of questions, and yet, because of that perception of superior expertise, everybody defers to that assessment, when the OT may well be the person who’s seen the patient for… the patient performing, and sees dramatic… in the case I’m thinking about, the team had seen a change over time, whereas the geri-psych person is seeing that person in the moment, right, and may think that’s where they normally function and it’s not the case. So it’s misapplication.
Focus Group, Joint Centre for Bioethics, October 1, 2014
As ACE and DDO commented in their paper, confusion about capacity and consent under the HCCA among health practitioners is exacerbated by the significant reliance on materials from other jurisdictions or materials that include incomplete or misleading information.
While the lack of clear standards and adequate training for assessments of capacity under the MHA and the HCCA are problematic in itself, given the challenges of assessing capacity and the vital importance of such assessments to the rights and wellbeing of those assessed, the lack of a consistent approach between different mechanisms for assessing capacity also adds to the confusion and complexity of the system.
I was just going to say the other part of it is I’m not sure that, you know, a lawyer or a psychologist, an evaluator in the long-term care sector, the treatment assessor in terms of the health part, I’m not even sure that what they’re assessing is consistent, right? Are they asking the same questions and doing the same process? I don’t think so.
Focus Group, Developmental Services Sector, October 17, 2014
It is true that there are significant differences between some of the domains and contexts in which assessments are carried out. Assessments under the HCCA are generally carried out with respect to a particular decision, and not with respect to an entire domain of decision-making, as are Capacity Assessments under the SDA. Further, assessments under the HCCA are generally carried out in situations where a particular decision is required on a time-sensitive basis, whereas Capacity Assessments under the SDA are more frequently carried out in the context of more general concerns about the abilities of the individual to manage their decisions independently. However, the LCO cannot identify a principled reason for significant differences in the standards for Capacity Assessments regarding management of property under the SDA and examinations for capacity to manage property under the MHA. Further, there are certain common elements to assessments of capacity which are fundamental to the approach underlying the entire legislative regime and that ought to be clear and respected across all contexts and domains.
5. Quality of Assessments
Assessing legal capacity is a challenging endeavour. Legal capacity, as it is embodied in Ontario law, is a nuanced concept. There is an inevitable tension between the concept of capacity as being contextual and fluctuating, and the need of the legal and health systems for clear thresholds. Given the potential impact of an assessment of capacity, it is important to ensure that these assessments are of high quality, and that those who are conducting them have the skills to carry them out effectively. In its written submission, the Ontario Brain Injury Association (OBIA) emphasized that
The importance of having a qualified, trained person administering these assessments cannot be stressed enough. The assessor should have sound knowledge of the policies, but also have detailed knowledge of, in this case, ABI. No two people with ABI are alike.
The assessment challenges inherent in the concept are exacerbated by the great diversity of the populations that may be subject to assessment. For example, the nature of the decisional limitations of persons living with dementia, developmental disabilities, acquired brain injuries or various types of mental health disabilities will vary widely, and assessment strategies need to take into account these differences. The OBIA has pointed out the complexity of assessing persons with brain injury: these individuals may be able to answer questions at the time of assessment but not be able to put them into effect because of damage to the areas of the brain that process information, make decisions, filter information and initiate activities; as well their abilities may fluctuate considerably. The OBIA suggested that the best way to assess a person with a brain injury is to assess them in their environment over time.
As well, communication barriers or cultural differences may affect the assessment of legal capacity. As was noted in Chapter III.B, Ontario’s population is extremely linguistically and culturally diverse. A number of consultees raised issues related to language barriers: without expert interpretation, the true abilities of an individual may not be manifest. Cultural differences may be subtle, and an assessor may not realize that a pattern of communication that seems to indicate a lack of legal capacity may simply be the manifestation of different cultural norms. Those who assess capacity may need additional training or supports to meaningfully address these challenges.
Members of the Deaf community have raised concerns that communication barriers for persons who are culturally Deaf (such as a lack of skilled interpreters), and the low levels of literacy for this community arising from educational barriers, result in improper assessments of the legal capacity of members of this group.
Just coming to the idea of assessments, I’ve noticed not having the appropriate accommodations on the assessments or the way assessments are done. It is really key to have those appropriate accommodations. I mean again if you don’t have that in place there is misrepresentation of what is written on that assessment or what is part of that assessment so I think it is really key before you even start any type of assessment is to look at those accommodations, what does that person need to do to do it successfully regardless of their hearing loss, interpreters, FM systems, a note taker ensuring that this person knows that they have the right to access that information and be able to have that assessment done correctly I think is key.
Focus Group, Advocacy and Service Organizations, October 2, 2014
Similarly, it may require some patience and skill to communicate with persons with aphasia: failure of health practitioners to take the time to do this may result in the assumption of their incapacity and referral of decision-making to family members. In a focus group with persons with aphasia, participants expressed considerable personal pain at the tendency of health practitioners and others to assume their incapacity.
While some concerns were raised regarding the quality of some Capacity Assessors, particularly in those areas of the province where there is less choice, overall there was appreciation for the training and standards for SDA Capacity Assessments, and the bulk of the concerns about assessments were focussed on other assessment processes, particularly assessments under the HCCA.
I was going to say certainly the formal assessments done by designated Capacity Assessors you do have to pick and choose but I generally find that those Assessors are well versed in protecting autonomy, defending rights and at least those that I’ve experienced have gone out of their way to accommodate people … Outside of that process with evaluations and others there is I think a much wider range where people are some better trained than others and take more care than others but those processes seem to be much less organized and sometimes they are pretty perfunctory. Some don’t seem to understand that you can’t assess someone without the accommodations that they think are supposed to be assessed without support and that can affect things.
Focus Group, Advocacy and Service Organizations, October 2, 2014
It should be noted that Community Care Access Centres, which perform a significant number of capacity evaluations for consent to admission to long-term care, have undertaken a variety of initiatives to increase the skills of their staff and to institute appropriate procedural protections for those they evaluate. Toronto Central CCAC staff told the LCO,
That also speaks to what … you [another participant] were also articulating, that coordinators take this process really seriously, and… from both a professional practise perspective, and also taking care that this is a major decision, that we’re working with the client, and a life-changing decision…. And so we undertook in this committee, or these guys undertook in this committee to change the… we decided that they… they decided that they didn’t want to use the provincial tool, the five questions to determine somebody’s capacity to make decisions around long-term care. So they developed quite a significant, lengthy tool that’s flexible, that really captures questions around whether the client understands and appreciates and is able to make decisions around long-term care.
Focus Group, Toronto Central Community Care Access Centre Staff, November 14, 2014
However, the process and tools used significantly vary even among the different CCACs, and CCACs are certainly not the only stakeholders carrying out capacity evaluations. For example, many hospitals have their own social workers or occupational therapists carrying out evaluations. The LCO has heard that many evaluations are still being carried out with only the “five questions” discussed above as a guide. CCAC staff have pointed to inconsistent application of the law, and to concerns that the law is not being appropriately attended to, whether because of institutional pressures or lack of understanding of the law.
The hospitals don’t like to be told what to do obviously, so yes, we do use the law. I’ve had to go to the hospital ethicist before and say, I don’t think this is being followed. Can you support me in this? And then they do get involved and enforce it. Sometimes you have to do that if people aren’t willing to re-do the evaluation, or they just outright refuse and say, no, I won’t do it. And to be… kindly remind them that it is the law, and that you’re not doing this correctly.
Focus Group, Toronto Central Community Care Access Centre Staff, November 4, 2014
Concerns were widely raised that physicians and other health practitioners do not receive sufficient training and support regarding assessment of capacity to consent to treatment, so that these assessments may be inadequately completed, or not done at all.
I’ve had discussions with doctors. Well, how did you come to this decision? And one doctor said, well, she was sleeping, so I just talked to her daughter. So things like that. Like, they’re… they just making decisions based on that moment, and I don’t think they’re reassessing on an ongoing basis, especially if people are coming in with some infection, and they’re delirious, and then a couple days after antibiotics start, they’re clearing up. Like, just because someone was sleeping, that’s not a good enough reason to make them incapable.
[Second speaker] Or they just automatically go to the family without even having the discussion because, like, they come and get admitted to hospital, and it’s just automatically… because you… when we come and do these assessments and have the conversations at rounds, one of the questions I’ve asked before is, well, who are you getting to consent for the treatment? And it’s like, oh, we talked to the family. But you’re… for long-term care or for whatever you’re saying, you think she’s capable, so why wouldn’t she… this person be capable to be able to make the decisions about their own treatment decisions? So it just seems to be whatever’s the path of least resistance
Focus Group, Toronto Community Care Access Centre Staff, November 4, 2014
In their paper, Health Care Consent and Advance Care Planning, prepared for the LCO, the Advocacy Centre for the Elderly and Dykeman Dewhirst O’Brien carried out a review of regulatory policies and publications, consent and advance care planning forms and systems and institutional policies and practices, as well as conducting focus groups with health practitioners, older adults and lawyers. In focus groups with older adults, ACE and DDO heard that
[P]articipants stated that health practitioners generally do not adequately provide options and seek informed consent when seniors attend hospitals and long-term care homes. The participants noted that the power imbalance between physicians and seniors was significant, and that this affected the ability of seniors to ask appropriate questions related to the treatments proposed by health practitioners. Many of the participants shared anecdotes of their experiences with the health care system, a common theme of which was that physicians would not seek informed consent to treatment from either patients or SDMs.
Several of the participants stated that when a senior is transferred to hospital from long-term care they are frequently presumed to be incapable of consenting to treatment. Many of the participants expressed frustration with the fact that health practitioners discuss treatment options with family and friends rather than a capable patient, apparently as a result of the patient’s age and appearance.
6. Inadequate Provision of Rights Information
Given the implications of a determination of lack of legal capacity to make a decision, it seems essential that individuals who are subject to assessments of capacity must be provided with meaningful procedural protections, to ensure that they have the opportunity to understand the process to which they have been subjected and its implications, and to challenge the process and its results.
Within the HCCA, the provisions regarding rights information fulfill a crucial role. These provisions are intended to promote understanding of and access to the rights set out in the legislation, most centrally the right to challenge a finding of incapacity by application to the CCB. Inadequate implementation of the provisions related to rights information undermines the careful balance of the legislation between the need for effective functioning of the health and long-term care systems, individual rights to decisional autonomy, and the importance of ensuring valid consent to treatment and to admission to long-term care. Without meaningful provision of information about rights to persons who are found to lack legal capacity, protection for autonomy is very significantly undermined.
Many stakeholders raised significant concerns about widespread inadequate provision of rights information, across all HCCA settings. There were concerns that in many cases, rights information is not being provided at all. For example, the Advocacy Centre for the Elderly (ACE) wrote in their submission,
It is ACE’s experience that persons found incapable under the HCCA (with the exception of Mental Health Act patients) are rarely advised of this finding and are even more seldom advised of their rights. ACE’s experience is that incapacity is also seldom appropriately documented in the patient’s medical chart.
Existing rights information mechanisms are often seen as insufficient to provide meaningful access to the rights under the legislation.
I think that part of the problem is if you are not a patient in a psychiatric facility or you’re not somebody who’s on a community treatment order you have no assistance whatsoever from anybody. We know by anecdotal evidence and personal evidence that, for example, physicians or dentists in the community get people to sign consent for other people and they don’t give them their rights or rights information as they’re supposed to, or required by their college. And I think there needs to be some centralized clearinghouse for information for individuals to call so that they can find out exactly what their rights are because we know that the people that are supposedly telling them aren’t actually telling them and they’re not helping them.
Focus Group, Rights Advisers and Advocates, September 25, 2014
This is seen as a particularly widespread issue in long-term care homes, with the perception that this amounts to a systemic issue in this setting, one in which a significant percentage of individuals live with some form of dementia and therefore are at higher risk of not meeting the threshold for legal capacity to consent.
Here in our facility it was a long-term care assessment. The person was found incapable to make that decision and the person applied for a hearing and the CCAC person came to our office and said, they applied for a hearing, I don’t know how they knew how to do that, or how they had the information that they could, but they did and now I don’t know what to do. And I was just, kind of, you know, you’re just, kind of, taken aback, going, if you made the assessment did you not give them that information? And what do you mean, you don’t know what to do now? I was just really shocked. And I can tell you from my own personal experience that long-term care, when they say someone is incapable, they don’t give them that information. They just go right to the person that they assume would be the power of attorney and request permission to do things.
Focus Group, Rights Advisers and Advocates, September 25, 2014
As well, rights information may be provided in a very cursory way, or without taking into account the needs of those receiving the information. For example, persons with visual disabilities may simply be provided with a written document, without any explanation. Linguistic barriers may not be addressed adequately, or at all.
When someone doesn’t speak the language or read English that the doctor doesn’t always get a translator or to translate the treatment order or treatment plan for the client. So, he only has to go by what he’s being told to do. And I think that’s extremely unfair for anybody in Ontario, that because they don’t speak the language they don’t have the right to know what it is that has been taken away from them. Or they’re being told that they have to follow a plan but they don’t know what the plan is because they are unable to read it because it’s not in their language or it’s not being explained to them in their language because they haven’t received a translator.
Focus Group, Rights Advisers and Advocates, September 25, 2014
We’re not doing the same thing [as under the MHA] with maybe some of the incapable for long-term care. As a care coordinator, I was just giving them the rights. And I really think it’s person to person on how that’s done. Just giving them that piece of paper, if they’re in fact reading it. If they’re allowing them that next step of actually calling the number. And in fact, calling the number’s not going to actually get you that consent capacity. It’s doing that form, meeting the patient, getting them to sign. So I really question how many times people are really getting that right to that consent and capacity board. Because the current process for how we’re giving them the rights. I think we might be more effective if you had a rights advisor, similar level to a form three or the form 21 at the hospital.
Focus Group, Service Providers for Individuals Living with Dementia, October 21, 2014
The LCO is troubled by these widespread reports, as they raise fundamental issues about the protection of basic rights.
It was emphasized to the LCO that there is limited awareness among many health practitioners of their responsibility to provide rights information. As well, the specifics of that responsibility differ among professions, because it is the health regulatory colleges that are responsible for providing that guidance: the HCCA specifies only,
A health practitioner shall, in the circumstances and manner specified in the guidelines established by the governing body of the health practitioner’s profession, provide to persons found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines.
The health regulatory colleges differ widely in the content and specificity of these guidelines. Some are very brief on this topic, simply requiring that the practitioner inform the incapable person of the findings, the reasons, the right to review and that a substitute decision-maker will be making the decision in question, while others provide much more extensive guidance. Some require that the practitioner provide the rights information in a way that accommodates the needs of the person found incapable, for example through the provision of interpreters or communication aids. Some appear to restrict the duty to provide information about rights to circumstances where the person indicates disagreement with the finding of incapacity or the appointment of the SDM, while others appear to require provision of rights information whenever there is a finding of incapacity. Some explicitly discharge the practitioner from providing rights information where the practitioner does not believe that the individual will be able to understand that information, for example because of extreme youth or disability. Some merely require the practitioner to inform the incapable person of a right to appeal, while others require the practitioner to provide practical assistance, for instance by referring them to assistance within the facility or recommending that they hire a lawyer, and some leave the matter to the professional judgment of the practitioner, such as requiring them to provide “reasonable assistance”.
The rights and supports of the individual found to lack legal capacity therefore vary considerably, depending on the particular health professional who has determined incapacity. Even within a health regulatory college, the degree of rights and supports appears to be vary; for example, the College of Respiratory Therapists requires more than some in providing assistance to the individual, yet also does not require the provision of rights information when the practitioner does not believe that the individual will be able to understand it.
When a rights adviser isn’t involved and a person is having their capacity changed, so, whether it be someone in the community, whether it be someone who is incapable with respect to long term care, there doesn’t seem to be consistency for the person who is supposed to be explaining, under the legislation, what the person’s options are if they disagree with the capacity assessment. What it says is guidelines from the College and I investigated on behalf of a person living in the community that was made incapable with respect to long-term care, what the guidelines were for the College of Physicians and Surgeons because they’re to have guidelines in terms of what they tell people about the consent and capacity board, access to legal aid, etc. And I phoned to the College of Physicians and Surgeons and they said, well, we don’t really have a guideline, it’s part of a practice direction with respect to capacity. And when you go in and look at it there’s really not very much there in terms of the obligation of the person
Focus Group, Rights Advisers and Advocates, September 25, 2014
As well, as is discussed at greater length in Chapter XI, health practitioners differ widely in the nature and amount of education and training that they receive on issues related to legal capacity and consent. Practitioners may have only a limited understanding of issues related to capacity and consent in general, and even less understanding of the procedural rights available to individuals who are found to lack capacity to consent.
A number of stakeholders emphasized that in the Consent to Treatment Act, an earlier incarnation of the Health Care Consent Act, 1996, individuals were entitled to advice from an independent advocate in a number of situations, such as applications to the CCB for directions regarding the prior expressed wishes of an individual, and applications to the CCB for permission to depart from the prior expressed wishes of an individual. The advocate was required to notify the individual of the decision or determination that had been made with respect to her or him; explain the significance of the decision or determination in a way that took into account the special needs of that person; and explain the rights that the individual had in that circumstance, such as a right to challenge the decision or determination. The LCO received a number of recommendations to reinstate the provision of this type of advice to at least some portion of the situations under the HCCA, through the expansion or creation of the kind of rights advice function provided under the MHA. For example, the Mental Health Legal Committee argues,
It is trite but worth emphasizing that vulnerable persons require enhanced systems in place to protect their rights. In the context of psychiatric patients, the requirement of independent rights advice under the MHA and HCCA plays a significant role in protecting the rights of individuals who are involuntarily detained, found incapable in various respects or are subject to a community treatment order. Rights advisors are essential in assisting patients who are cognitively impaired with following up on their wishes to challenge findings of incapacity by completing and filing the application to the CCB, by connecting them with counsel specialized in the area and by completing applications to Legal Aid Ontario to secure funding for counsel. Interestingly, community treatment order substitute decision-makers, also receive mandatory rights advice.
There is no independent rights advice regime in place respecting findings of incapacity outside of the MHA context. In these situations the rights advice is expected to be provided by the assessor or evaluator or simply left to the patient. Outside of the context of mandatory independent rights advice, persons who disagree with incapacity findings generally fail to challenge them.
There is no principled basis for the provision of independent rights advice in some but not all situations where an individual is found to be incapable with the result that they face significant infringements of their autonomy or liberty. Accordingly, the MHLC recommends legislative changes to require independent rights advice in all situations where an individual is found incapable with respect to treatment, managing property or admission to long-term care.
D. Applying the LCO Frameworks
As discussed in Chapter IV, debates about legal capacity and how it is defined are often described in terms of competing principles of autonomy and “beneficence” or safety. In some ways, this area of the law can be understood as a mechanism for balancing and fulfilling the principles. A determination with respect to legal capacity can be a means of protecting the ability of individuals to make choices about their own lives, or of preventing or addressing abuse of neglect of individuals who are vulnerable due to impaired decision-making abilities.
It is important to keep in mind, as with the application of the principles to all aspects of this area of the law, the close connection of the principles with each other in practice. For example, if a poorly conducted evaluation of capacity results in inappropriate admission to long-term care, there is a direct and significant impact on the fulfilment of the principle of participation and inclusion.
This direct and vital connection to the principles means that the provisions for the application of the legislation must be appropriately designed and effectively implemented: otherwise, the laws may actually undermine the principles. This was acknowledged in the development of the legislation and in many of its aspects, particularly the procedural rights surrounding the assessment of legal capacity. The processes for assessing legal capacity must in their substance result in the protection and promotion of autonomy and security, as well as respecting the principles in the processes themselves.
The LCO is concerned that in a number of respects, the current capacity assessment processes fail to respect, and in some cases may actually undermine the principles.
The Frameworks highlight the challenges for persons with disabilities and older persons of navigating processes that are complicated or multi-layered, and the importance of providing adequate navigational supports for these kinds of processes, or of simplifying those processes. As was discussed in Chapter IV, as well as in this Chapter, legal capacity is a multi-dimensional, contextual concept, and in attempting to address these multiple dimensions, the systems surrounding the assessment of capacity have multiple entry points, differing processes and consequences, and confusing areas of overlap and differentiation. However, it is important to consider how these processes can be made easier to access and navigate for older persons and persons with disabilities. The current system for accessing Capacity Assessments under the SDA presents a number of barriers for older adults and persons with disabilities related to cost and complexity. This is especially true for those persons with disabilities and older adults who are most likely to be directly affected by this process: they are more likely to have limited access to the funds necessary for a Capacity Assessment and to have extra difficulties in navigating complicated systems without supports. The Frameworks point towards the importance of either simplifying complex systems, to make them more transparent and accessible, or of providing supports or advocacy services to assistance with navigation.
The Frameworks also emphasize the profound importance of ensuring that persons with disabilities and older persons are meaningfully informed about their rights, and that the processes in place are such as to enable these individuals to pursue these rights. Providing the information and the processes necessary to access rights is itself essential to promoting autonomy and dignity for these groups; as well, without such processes, individuals will be unable to achieve the principles, even if the substance of the legislation complies with those principles. These considerations underscore the gravity of the kind of concerns that have been voiced about the adequacy of rights information under the current regime. Most seriously, there is no practical guarantee that individuals who are found to lack legal capacity – and thus to be unable to make decisions for themselves – under the HCCA are ever informed that they have rights to challenge those decisions, or even that such a determination has been made and what its effect is. Based on what the LCO has heard through its research and consultations, it appears that many older persons and persons with disabilities are deprived of this basic guarantee. This is a clear and serious shortfall in the current law.
The LCO’s research and consultations have highlighted the enormous gap that may exist between the abstract concept of legal capacity as described in the statute and the everyday understanding and implementation of the law by individuals, including professionals, families and those directly affected. Everyday practical needs and popular “common-sense” understandings of the law drive much of its current implementation. Because this area of the law relies so much on the efforts and understandings of private individuals, the gap between the statute and lived experience is wide, and is a challenge for law reform. There is, as this Chapter documents, particular concern about the lack of adequate training and education for those professionals carrying out assessments of capacity to consent to treatment and evaluations of capacity to consent to admission to long-term care and to consent to personal assistance services. The lack of clear standards and consistent delivery mechanisms for professional training and education puts at risk the autonomy, security, and dignity of those individuals who lack or may lack legal capacity.
The principles of diversity (as defined somewhat differently in each Framework), together with the focus of the Frameworks on the importance of lived experience in understanding the principles, reminds us that the experiences and needs of persons who may be affected by this area of the law will vary significantly: it is important in assessing legal capacity that differences related to gender, language, culture, disability, geographic location and other factors be taken into account, to the extent possible. As was noted above, needs related to disability, such as the needs of the culturally Deaf community or persons with aphasia, and needs related to cultural differences, such as for Aboriginal persons, should be addressed appropriately in assessments of legal capacity. As well, the needs of persons living in remote or rural communities should be taken into account. Research and public consultations highlighted the particular needs and barriers faced by persons living in long-term care.
E. The LCO’s Approach to Reform
Ontario’s systems for assessing capacity face a number of challenges in attempting to balance the need for nuance with the challenges of complexity; the importance of due process with needs for accessibility and efficiency; and the advantages of expertise and specialization with the costs of training and formality. There is no single right approach to these issues: any regime will raise challenges. Furthermore, many consultees identified positive aspects of the current system, especially in its intentions. Therefore, rather than recommending radical reform of Ontario’s capacity assessment systems, the LCO has attempted to identify practical solutions that will maintain and hopefully build on the strengths of the current approach and reduce some of the negative side effects.
Of greatest concern to the LCO are issues related to the quality of certain types of assessments and to gaps in the provision of fundamental procedural rights to all individuals who are assessed. There are concerns about the accessibility of Capacity Assessments under the SDA, in particular with respect to cost, navigational supports (particularly for groups with special needs), and geographical location, and the LCO believes that as resources are available, the Capacity Assessment Office should continue to seek means to address these important issues. However, there was a general sense that Capacity Assessments are subject to clear and appropriate standards, and that most Capacity Assessors display appropriate levels of skill and sensitivity. The situation with assessments under the HCCA is much more troubling, with widespread concerns being raised about lack of clear standards, uneven application of the existing legislative requirements and lack of meaningful mechanisms for affected individuals to pursue their rights.
There is a cost to provision of procedural rights, both financially and in the efficiency of the provision of services, and this must be taken into account in system design. However, it is the view of the LCO that certain basic rights and protections for vulnerable persons should be non-negotiable.
The LCO makes draft recommendations in Chapter XI regarding information, education and training. Better understanding of rights and obligations should reduce some of the confusion surrounding Ontario’s assessments of capacity, improve the quality of assessments and assist families and individuals in asserting their rights. However, it is the LCO’s view that better education and information alone will not resolve the issues raised under the HCCA. The lack of clear standards and meaningful monitoring for assessment under the HCCA creates a situation where the kinds of systemic shortfalls that have been identified are not entirely surprising. The LCO’s draft recommendations therefore focus on
· provision of clear, enforceable standards for assessments of capacity that take place outside the SDA, so that those providing assessments clearly understand their obligations and those being assessed have clear rights and can identify when those rights have been respected; and
· improving monitoring of assessments of capacity under the HCCA, with a view to developing approaches to addressing systemic shortfalls in this area, particularly with respect to process rights.
The draft recommendations that the LCO has made preserve the basic approach adopted with the creation of the SDA and HCCA, and aim to make incremental improvements. However, the LCO believes that the results of these improvements should be carefully monitored. If significant improvement is not evident within a reasonable period of time, the LCO believes that government should consider a fundamental redesign of assessment under the HCCA to strengthen the implementation of this area of the law, and to ensure that those affected have appropriate access to basic procedural protections.
F. Draft Recommendations
1. Triggers for Assessment
It is implicit in Ontario’s legislation related to legal capacity, decision-making and guardianship that substitute decision-making is required only where there is both a lack of legal capacity and a need for a decision to be made. Lack of legal capacity by itself is not sufficient to justify the intrusion on autonomy associated with substitute decision-making. And in practice, many individuals who would be found to lack legal capacity if assessed are never assessed, and are never subject to substitute decision-making, because for them there is no need for the significant types of decisions associated with legal capacity, decision-making and guardianship law.
Under the HCCA, assessments of capacity to consent to treatment or to admission to long-term care are triggered only where a specific treatment or service is in contemplation and there are reasonable grounds to question the presumption of capacity to provide consent – that is, where there is a clear, specific and present need.
There is no clear requirement for a trigger under the SDA; instead individuals have the right to refuse an assessment, and the Guidelines clearly require Capacity Assessors to notify the individual of this right of refusal. Further, the Guidelines emphasize that
Routine screening of whole classes of individuals cannot and should not be endorsed, as this prejudges an individual’s capacity based on class membership. For example, it is incorrect to assume that all intellectually disabled persons must be incapable by virtue of their disability. It is incorrect to assume that a diagnosis of a severe psychiatric disorder like schizophrenia renders the person unable to meet his or her personal care or financial needs.
Form C for Capacity Assessors requires the Assessor to identify a cause for the Assessment, such as “information about inability to manage personal care” or “information about person potentially or actually endangering his or her well-being or safety”.
As was noted above in section V.B.2, many assessments are carried out for non-statutorily required purposes, such as to underpin the creation of a will or a power of attorney. Capacity Assessors complete these as “opinion letters” and they do not fall within the purview of the SDA.
The MHA actively requires an examination of the capacity to manage property of all persons admitted to a psychiatric facility, 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. As has been noted elsewhere, these provisions are intended as a protection for this group, to prevent significant disruption to the lives of those admitted to a psychiatric facility due to an inability to manage property during this time. However, the mandatory examination for all those admitted is unusual in the context of the overall legislative scheme, in that it appears to reverse the presumption of capacity for this specific group – individuals admitted to a psychiatric facility – subjecting all members of this group to an examination, on the basis of their psychiatric disabilities. That is, there appears to be a presumptive conflation of the status of having a psychiatric disability with lack of legal capacity to manage property and with a need for guardianship. While it may be appropriate to give consideration in all cases to whether an examination is necessary, it may be excessive to require an examination in all cases.
As was noted above, assessments of capacity are intrusive processes with potentially significant implications for the affected individual’s rights. It is the view of the LCO that such assessments should take place only where necessary for the interests of the individual, and not on the basis of presumptions about particular classes of individuals, or to further the interests of family members or service providers
Given the concerns raised during the consultations about misuse of assessments of capacity, the LCO believes that the purposes or appropriate triggers for an assessment of capacity should be clarified. Chapter III.E.1 highlighted the value of clarifying the purposes of the legislation in this area in promoting appropriate application: this is an example of where greater clarity regarding purpose could reduce misuse.
Alberta legislation requires that there be a valid cause for concern in order to necessitate a capacity assessment with respect to property or personal care, that is, an event that puts the individual or others at risk and that seems to be caused by an inability to make decisions. Assessors must know the reason that a capacity assessment has been requested and familiarize themselves with the circumstances leading to the request. The LCO believes that this stronger language, which pairs both the inability to make decisions and a need for the type of intervention associated with guardianship, provides a helpful approach that can be incorporated in Ontario. The LCO believes that it would be helpful to strengthen the language included in Form C for Capacity Assessors created under Regulation 460/05, which Capacity Assessors must complete. In addition, in keeping with Draft Recommendation 1, a clear statement in the SDA of the appropriate purposes for capacity assessment would be valuable.
DRAFT RECOMMENDATION 5: The Ontario Government update
a) the Substitute Decisions Act, 1992 to provide a clear statement as to the appropriate purposes of capacity assessment;
b) Form C under the Substitute Decisions Act, 1992 to clarify that a Capacity Assessment with respect to property or personal care should only be conducted where there is
i. valid cause for concern regarding the ability of the individual to make decisions and
ii. a need for decisions to be made,
and that Assessors should know the reason that a Capacity Assessment has been requested.
It is the view of the LCO that examinations of capacity to examine property under the MHA should require some trigger: the current requirements are inconsistent with a presumption of capacity. However, to avoid creating a disincentive to assistance for individuals who do require an SDM while in a psychiatric facility to avoid unnecessary loss of property, the bar should not be set too high. Physicians should not, for example, be required to investigate the financial arrangements of the individual.
The LCO recommends that the trigger for an assessment under the MHA be harmonized with that under the HCCA: that is, adopting the language of “reasonable grounds” for belief that there is a lack of legal capacity to manage property. This provides physicians contemplating an examination under the MHA with a test that is familiar to them from their general practice, and avoids adding to the complexity of the legislative scheme.
DRAFT RECOMMENDATION 6: The Ontario Government amend section 54 of the Mental Health Act to require physicians to conduct an examination of capacity to manage property where there are reasonable grounds to believe that the person may lack legal capacity to manage property and that the person may suffer negative consequences as a result.
2. Accessing Capacity Assessments under the Substitute Decisions Act, 1992
As is clear from the previous discussions, Capacity Assessments by designated Capacity Assessors are vital both for entering guardianship where necessary, and for exiting it where it is no longer appropriate. Access to Capacity Assessments is therefore closely connected to the preservation of personal security for individuals and to their autonomy. Lack of access to Capacity Assessments may compromise fundamental rights.
It is also clear that some individuals may face considerable challenges in accessing Capacity Assessments: these individuals will tend to be the most vulnerable individuals, such as persons living in low-income, those with low literacy levels or who speak English as a second language, those living in remote communities, persons from various cultural communities, and Aboriginal persons. In a consumer model, such as the one adopted for Capacity Assessments, where it is the responsibility of individuals to navigate and fund the process, these types of barriers can have a significant impact on an individual’s ability to understand and enforce rights regardless of legal capacity to make decisions. The Capacity Assessment Office does important work in assisting individuals to access information and in administering the fund for those who meet the income criteria. However, additional efforts are required to ensure that vulnerable groups are not disadvantaged in accessing their rights.
DRAFT RECOMMENDATION 7: The Ontario Government develop and implement a strategy for removing informational, navigational, communication and other barriers, and increasing access to Capacity Assessments under the Substitute Decisions Act, 1992 for persons in remote and First Nation communities; for newcomer communities; persons facing communications barriers, including among others those who are Deaf, deafened or hard of hearing and persons for whom English or French is a subsequent language; low-income individuals; and others identified as facing barriers.
3. Minimum Common Standards for All Formal Assessments of Capacity
As was discussed above, while the SDA provides clear and comprehensive guidance for Capacity Assessments through the Guidelines for Conducting Assessments of Capacity, no such guidance exists for assessments of capacity under the MHA or HCCA. Rather, this role is left to the discretion of the multiple health regulatory colleges, which vary widely in the extent and content of the guidance that they provide. It is not clear on what principled basis the quality and standards of assessments should vary so considerably, not only depending on the particular domain but also on the particular health practitioners carrying out the assessment. While there are some differences depending on the domain or the particular type of treatment for which consent is being sought, the fundamental nature of an assessment of capacity and the principles which underlie it are, or should be, consistent. That is, there are basic rights accruing to persons under assessment that are not, or should not be, simply a matter of professional judgment.
Further, it is the view of the LCO, based on its consultations, that the lack of clear guidance contributes not only to confusion but to shortfalls in the quality of assessments of capacity, particularly assessments for the purposes of treatment or admission to long-term care under the HCCA.
The LCO therefore concludes that official Guidelines should be developed for assessments under the HCCA, parallel to those existing under the SDA. Because there are contextual differences between assessments in the domain of property and those carried out for the purposes of obtaining consent to treatment or to admission to long-term care, these Guidelines would not be identical, but would incorporate the same fundamental precepts, including the following:
· an explanation of the purpose of assessments and the need for an appropriate trigger for assessment, of their context in Ontario’s legislative scheme for consent, and of the fundamental rights that are at stake;
· a description of the “understand and appreciate” test, including the right of capable persons to make decisions that others may consider foolish or risky;
· basic procedural rights for those assessed or evaluated, including the right to be informed that an evaluation or assessment is to be undertaken, the purpose of the assessment and the significance of a finding of incapacity, the right to have counsel or a trusted friend present during the evaluation, and the right to be informed of these rights prior to the evaluation;
· the duty on the part of the assessor to accommodate the needs of the person being assessed, in order to make an accurate judgment regarding their ability to understand and appreciate, including the provision of appropriate aids to communication;
· guidance on conducting assessments for populations with special needs, including needs related to language and culture; and
· basic practical guidance on carrying out an assessment interview.
DRAFT RECOMMENDATION 8: The Government of Ontario create official Guidelines for assessments of capacity under the Health Care Consent Act, 1996, incorporating basic principles and procedural rights.
4. Providing Statutory Guidance for Rights Information
The LCO takes very seriously the widespread complaints regarding the shortfall in the provision of meaningful notification, information and advice to persons found legally incapable under the HCCA. Failures to provide this type of support to persons found legally incapable, who by their nature and circumstances will have difficulties in accessing and enforcing rights, amount to at the least a significant violation of the most basic procedural rights and at worst the risk that individuals are having their fundamental right to make decisions for themselves removed unnecessarily or inappropriately.
As was noted earlier in this Chapter, many stakeholders recommended an expansion of the rights advice function that currently exists under the MHA to at least some of the situations under the HCCA where there are significant changes to legal status. These stakeholders felt that the rights information model under the HCCA is insufficiently rigorous to provide minimum due process to individuals who are found incapable under that statute, and that these individuals therefore have insufficient meaningful access to their statutory rights.
The LCO has considered the proposals to expand the provision of rights advice beyond the MHA. The rights advice approach provides independent and expert information and advice to persons whose rights are significantly at stake and who are particularly vulnerable. Overall, Ontario’s rights advice program under the MHA is well regarded, and is considered a vital element of the province’s mental health system.
While the LCO agrees that the rights information model as currently implemented has significant shortcomings and that the rights of persons found incapable under the HCCA are insufficiently protected, we have reluctantly concluded that the full and immediate expansion of rights advice to all those found legally incapable under the HCCA is not a viable approach, not only for reasons of cost, but of practicality. For example, looking only at the long-term care sector, Ontario has over 630 long-term care homes, with close to 80,000 beds; just over three-quarters of the residents have some level of cognitive impairment. To meet the needs for information and advice through independent rights advisers would be not only expensive, it would be logistically very difficult. Considerable efforts were put into the implementation of the Advocacy Act: while there were multiple reasons for that legislation’s short history, the difficulty of the endeavour was obvious, and the LCO does not believe that an attempt to resurrect this approach would be the most effective in the current demographic, social and economic environment.
The LCO has focussed its immediate draft recommendations on strengthening the existing rights information regime.
As a first step, the LCO believes it is essential to clarify and standardize the requirements for rights information, so that persons found to lack legal capacity consistently receive the same basic information about their status, its effect and their recourse, and so that health practitioners are not confused about how to carry out this important responsibility. While there are variances between the contexts in which the various health professions assess legal capacity and provide rights information, the LCO believes that there are certain fundamental procedural rights to which all persons found to lack capacity should have access.
The LCO addresses issues related to education and training in Chapter XI. Education and training for health practitioners regarding rights information is important, but by itself will not address this fundamental procedural gap. Where there are shortfalls in the provision of rights information, these can only be addressed by a complaint to the relevant health regulatory college, and such complaints must be based on the standards and guidelines of that profession. Where the health regulatory colleges have provided minimal guidance, the person who has received inadequate rights information has no recourse: the health practitioner has met his or her obligations. The LCO believes that it is the role of government, in these circumstances, to provide consistent standards for fundamental procedural protections for persons whose right to self-determination is being removed.
Once minimum standards have been clarified, the LCO’s draft recommendations regarding education, training and oversight may be helpfully employed to promote the effective application of these standards.
As a further step, ensuring standard documentation regarding the implementation of these procedural steps will not only encourage health practitioners to carry them out consistently, but will enable more general monitoring of the implementation, so that the effectiveness of reforms can be evaluated and further steps designed as necessary.
DRAFT RECOMMENDATION 9:
a) The Ontario Government amend sections 17, 47.1 and 62.1 of the Health Care Consent Act, 1996 to include minimum standards for the provision of rights information to the individual who has been found to lack legal capacity, including that
i. notice be provided of the determination of incapacity, the consequences of the incapacity, the identity of the substitute decision-maker who will be making the decision with respect to treatment, and the right to challenge the finding of incapacity;
ii. the information be provided in a manner that accommodates the needs of the affected individual, including alternative methods of communication; and
iii. the health practitioner provide the individual with information or referrals regarding the means of pursuing an application to the Consent and Capacity Board to challenge the finding of incapacity.
b) The health regulatory colleges continue to fulfil their role of supporting and educating their members about how to meet these minimum standards through guidelines and professional education as appropriate.
c) To assist in the implementation of this Recommendation, the Ontario Government amend the Health Care Consent Act, 1996 to require health practitioners, upon a finding of incapacity, to complete a simple regulated form, analogous to Form 33 “Notice to Patient” under the Mental Health Act.
The LCO believes that the implementation of draft Recommendation 9 will improve the implementation of rights information. It is important to recognize, however, the inherent shortcomings in a rights information model, in that health practitioners are required to provide information about legal and procedural rights, a subject which is not at the core of their expertise, and to do so in situations where they themselves have just determined that the individual does not have capacity and where a challenge to that finding would involve them in proceedings before the CCB. There are unavoidable challenges to due process built into a rights information model. Access to independent and expert advice is clearly preferable.
While a full rights advice model, in which independent and expert advice is provided to every individual every time a finding of incapacity is made with respect to treatment or long-term care, is untenable, as was discussed above, there may be means of providing something short of this, but that still advances rights for affected individuals.
The Independent Mental Capacity Advocates of England and Wales provide an example of an advocacy program that is highly targeted to the most serious situations and the most vulnerable individuals. Under the Mental Capacity Act 2005, the Independent Mental Capacity Advocacy (IMCA) service is responsible for helping “particularly vulnerable people who lack the capacity to make important decisions about serious medical treatment and changes of accommodation, and who have no family or friends that it would be appropriate to consult about those decisions”. An IMCA must be involved with a person who lacks legal capacity and has no one to support them, whenever a serious medical treatment is proposed, or long-term residential accommodation is under contemplation. IMCAs are required to have specific experience, have completed IMCA training, have integrity and a good character, and be able to act independently. IMCAs have broad powers to support and advocate for individuals, including the responsibility for engaging in uninstructed advocacy in some circumstances, carrying out research and investigations, and themselves challenging decisions: the LCO is not suggesting such extensive powers, which may be appropriate in the larger context of the Mental Capacity Act, 2005 in which health practitioners, social workers and other professionals may themselves make best interests decisions about the care of a client who is found to lack legal capacity, but would not fit easily in the Ontario approach. Rather, the IMCA model can assist in identifying means by which some form of rights advice could be extended in a targeted fashion.
Another potential model is medico-legal partnerships (MLPs) or what are sometimes call Health Justice partnerships. These are common in the United States, and have recently been gaining increasing profile in Ontario, as part of a broader exploration of multidisciplinary approaches to legal services. Health Justice partnerships are based on an acknowledgement of the multifaceted interrelationship between legal needs and health problems. Health Justice partnerships adopt a multidisciplinary model that integrates “access to legal services as a vital component of health care”. Health Justice partnerships have formalized a “culture of advocacy” in the clinical context by dealing with a range of legal needs which have been shown to affect health and well-being, including income and insurance issues, housing and utilities, education and employment, legal status, family law, and capacity and guardianship issues. Generally speaking, Health Justice partnerships involve multidisciplinary health teams (typically made up of health care providers, legal aid and/or pro bono lawyers, social workers and law students) that collaborate to “identify root causes of problems that generate needs, understand broader context in which legal needs arise, and work proactively towards disrupting harmful tendencies of the system”. By leveraging the resources of community partners such as legal aid agencies, law schools, pro bono law firms, hospitals, health centres, medical schools and residency programs to identify, triage and resolve health-harming legal issues, and embedding the referral system within the existing health care infrastructure and medical consultation process, the cost associated with providing patient-clients access to legal assistance is minimized.
There are a number of Health Justice partnerships currently operating in Ontario. Pro Bono Law Ontario (PBLO) has established such partnerships within a number of hospitals, including at the Hospital for Sick Children, the Children’s Hospital of Eastern Ontario in Ottawa, the Holland Bloorview Kids Rehabilitation Hospital, and McMaster Children’s Hospital. These programs provide assistance in cases where a parent’s employment, housing or benefits are threatened because they are caring for a sick child, or because of domestic abuse or immigration issues, for example. PBLO’s triage lawyers assess patient-client needs through legal issue spotting interviews, provide summary legal advice, perform document preparation, and make referrals to legal aid or pro bono lawyers.  Private bar lawyers who participate in PBLO’s pro bono initiatives typically provide support to families through advice or representation on matters including administrative law, immigration and refugee law, family law, or estate planning for families of children with permanent disabilities. ARCH Disability Law Centre and St. Michael’s Family Health Team have partnered to tackle the legal dimensions of patient health and poverty law issues, in an approach based on a community development model and a disability rights framework. Various other clinics have joined this initiative, which provides legal services to patient-clients, legal education to health care professionals, and leadership on systemic advocacy and law reform. Legal Aid Ontario provides funding. Once the current pilot is complete, the partnership is expected to expand to five other Family Health Team sites.
There are a number of promising aspects to these Health Justice partnerships, including the ability to provide legal services within a health care context, the collaboration between a range of professionals and organizations, and in the partnership between ARCH Disability Law Centre and St. Michael’s, the broad approach to legal services as including not only direct services but also legal education for health professionals and a capacity for systemic advocacy. This kind of understanding of legal advocacy and access to justice as vital components of health care underlies the shift in approach necessary to meaningfully incorporate rights protections into assessments of capacity and consent to treatment. Health Justice partnerships may have potential to promote inclusion and participation, foster autonomy and independence, and respond to diversity by:
· engaging lawyers in health care delivery, whether through on-site or external pro bono legal assistance,
· training health care professionals to go beyond consideration of a patient’s medical profile and better understand the context in which they live, work and play to spot legal issues likely to jeopardize their health,
· in the areas of the law in which Health Justice partnerships provide services, empowering the patient-client (and their families) with information about rights and the means by which those rights can and should be enforced so they can actively participate in (re)constructing their own health futures, and
· expanding the model to focus on multiple vulnerable populations with unique challenges and needs.
A central challenge, however, in adapting these types of initiatives to strengthen rights protection for persons lacking legal capacity in the context of consent to treatment and admission to long-term care, is that this context requires rights information or advice to challenge a health professional’s decision or action. Unless patients explicitly request a referral to the triage lawyer, health professionals bear the burden of flagging legal issues. In scenarios where the health care professional is providing the referral for legal advocacy against an external party such as an employer or landlord, this model functions quite effectively, as the health care professional acts as an advocate on behalf of their patient. However, in a scenario where the patient requires rights information or advice to enforce their rights against the health professional, the model does not resolve the tension derived from this conflict of interest. A Health Justice partnership, as they are currently designed, does not guarantee participation or commitment from health professionals, nor does it promise delivery of objective and adequate information and advice to patient-clients. Further thought would be required to identify means of addressing this shortcoming to adapt the Health Justice Partnership model to the particular needs of this context.
DRAFT RECOMMENDATION 10: The Ontario Government explore means of providing independent and expert advice on rights to persons found incapable under the Health Care Consent Act, 1996, for example by adapting and transforming some key elements of Health Justice partnerships to provide expert and accessible advocacy with health settings, or developing targeted programs for those who are most vulnerable or whose rights are most gravely at risk.
5. Strengthening Reporting, Auditing and Quality Improvement Measures
The provision of clear minimum standards for rights information is an important first step in strengthening these provisions of the HCCA, and together with efforts to improve training and education among health practitioners, as recommended in Chapter XI, should result in some improvement in this area. However, given the systemic nature of the concerns raised and the challenges that families and individuals face in identifying where there has been a shortfall in rights information and in addressing such gaps, the LCO believes that some system wide attention to the issue is also necessary to ensure basic procedural rights.
As a further step to assist in regularizing and improving the quality of requirements related to capacity, consent and rights information under the HCCA, the LCO considered recommending a form of systemic oversight of the implementation of these provisions. For example, in its 2010 paper commissioned for the LCO’s project on The Law as It Affects Older Adults, the Advocacy Centre for the Elderly (ACE) recommended the creation of a Health Care Commission, intended to address complaints by residents of long-term care homes about lack of knowledge of their rights and a lack of accessible mechanisms for enforcing those rights. The Health Care Commission, in the vision of ACE, would be similar in some ways to the Office of the Provincial Advocate for Children and Youth: it would be independent, and would carry out both individual and systemic advocacy.
However, the LCO has concluded that it is more efficient and potentially more effective to integrate monitoring and oversight related to legal capacity and consent into existing mechanisms related to health care and long-term care. These sectors are already highly fragmented, with multiple institutions and stakeholders providing education and training, oversight and quality control.
Health Quality Ontario
Under the Excellent Care for All Act, 2010 the mission of Health Quality Ontario (HQO) is to advance priorities that include high quality health care; responsive, transparent and accountable health care organizations and executive teams; and an accessible, appropriate, effective, efficient, and patient-centred health care system. HQO has a mandate to monitor and report to the people of Ontario on, among other matters, health system outcomes, to support continuous quality improvements, to promote health care supported by the best available scientific evidence, and other matters that may be included in regulations. HQO undertakes a variety of activities pursuant to this mandate, including
· public and annual reporting both to the public and to the Ministry of Health and Long-term Care on the health status of Ontarians and the quality of health services;
· Quality improvement plans (QIPs), which “enable organizations to communicate their quality improvement goals and help them focus their efforts on key health system priorities”, and which are required to reflect the “voice of the customer”;
· production of theme reports on key cross-sector or sector specific issues and areas of improvement for health system stakeholders, such as a recent report on Experiencing Integrated Care;
· patient and public engagement strategies, such as the development of a primary care patient engagement survey to measure the patient experience; and the creation of a Patient, Family and Public Advisors Council;
· knowledge transfer initiatives; and
· creation of tools and resources to assist health providers in identifying and bridging gaps in quality of care and service delivery. 
HQO also includes a new Patient Ombudsman function, which is not yet in force. The Patient Ombudsman can receive, investigate and facilitate the resolution of complaints made by patients and former patients of a health sector organization about their care and health care experience, and can make recommendations to these organizations following the conclusion of an investigation.
It is the LCO’s view that the mandate and functions of HQO may enable it to take a helpful role in educating health care organizations and their staffs regarding assessments of capacity under the HCCA, including issues related to rights information, as well as in encouraging health care organizations to develop strategies to address gaps in these areas and monitoring the success of such strategies. It would be essential to the successful involvement of HQO in this area that it be able to:
· integrate a concept of quality that includes respect for and promotion of the autonomy of patients; and
· incorporate in any initiatives an understanding of the legal foundations of capacity and consent, and the associated rights of patients.
Long-Term Care Homes Act, 2007
As was discussed extensively in the LCO’s Final Report on the Framework for the Law as It Affects Older Adults, persons living in long-term care have distinct and significant challenges in accessing legal rights, both by nature of the setting, which is in many ways removed from the broader community, and by virtue of the characteristics of long-term care residents, who are increasingly persons with very significant disabilities that may affect their abilities to understand and assert their rights. Rights protection mechanisms that may adequately address the needs of persons living in the broader community may be insufficient to provide meaningful assistance to this population. This issue was considered at length in a paper prepared for the LCO by the Advocacy Centre for the Elderly in 2010. The long-term care home sector incorporates a number of specific oversight, monitoring and complaints mechanisms intended to address, at least in part, the very significant challenges faced by residents of long-term care homes in protecting and enforcing their rights.
The Long-Term Care Homes Act, 2007 includes a Bill of Rights that directly addresses many issues related to legal capacity, decision-making and consent, including rights to:
· have his or her participation in decision-making respected;
· participate fully in the development, implementation, review and revision of his or her plan of care, give or refuse consent to any treatment, care or services for which his or her consent is required by law and to be informed of the consequences of giving or refusing consent, and to participate fully in making any decision concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a long-term care home or a secure unit and to obtain an independent opinion with regard to any of those matters; and to
· manage his or her own financial affairs unless the resident lacks the legal capacity to do so.
Every licensee of a long-term care home must ensure that these rights of residents are fully respected and promoted. These rights are the subject of a deemed contract between the resident and the licensee. Enforcement of these rights would therefore take the form of an action against the licensees for breach of contract. As the Advocacy Centre for the Elderly has pointed out, for most residents this is not a particularly practical means of enforcing the important protections set out in the Bill of Rights. Compliance with the Bill of Rights may also be included in the inspections carried out under the Long-Term Care Homes Act, 2007, which empower inspectors to ensure compliance with the requirements of the Act.
With the advent of the Long-Term Care Homes Act, 2007, the long-term care sector has incorporated a number of new mechanisms for quality improvement, reporting and compliance, including:
· clear responsibilities for licensees of long-term care homes to provide initial and ongoing training to ensure that all the staff of the home “have the proper skills and qualifications to perform their duties”; the statute and regulations specify a number of areas of mandatory training, including “[a]ll Acts, regulations, policies of the Ministry … that are relevant to the person’s responsibilities”;
· critical incident and mandatory reporting requirements on areas of key concern, including issues of abuse or neglect of a resident, or non-arm’s length transactions with residents;
· surveys of residents and their families to be conducted at least once in every year, to measure their satisfaction with the home and the care, services, programs and goods provided at the home, with an obligation on the licensee to make a reasonable effort to act on the results of the survey and improve the quality of care;
· annual inspections of long-term care homes; and
· the creation of Residents’ and Family Councils, with the power to advise residents on their rights and obligations; review certain documentation related to the home; mediate and attempt to resolve disputes between residents and the home; and report any concerns and recommendations to the Director.
The Ministry of Health and Long Term Care operates the ACTION line as a means for residents of long-term care homes to report concerns about the care and services that they receive, as well as concerns regarding home care. An operator assesses the urgency of the matter and where the matter relates to a long-term care home, may refer the information to a compliance advisor to complete an investigation.
The LTCHA clearly articulates the rights of residents of long-term care homes regarding the right to make their own decisions where possible, and for meaningful processes with respect to consent to treatment and care. The LCO believes that existing mechanisms for monitoring and quality improvement can and should be mobilized to strengthen the ability of legally capable residents to make decisions for themselves and for all residents to exercise their procedural rights related to capacity and consent.
Local Health Integration Networks
Another important potential avenue for accountability and oversight are the Local Health Integration Networks (LHINs). The 14 LHINs, established under the Local Health System Integration Act, 2006 (LHSIA), were created by the Ontario government to fund and coordinate health services in the province. Their legislative mandate is to plan, integrate and fund health care services, which sometimes involves increasing, decreasing or discontinuing funding, or requiring that a service be delivered according to particular specifications. LHINs report to the Ministry of Health and Long-Term Care (MOHLTC); they must also provide information as requested to the Ontario Health Quality Council. 
The LHSIA indicates that the LHINs are expected to undertake efforts to improve the quality of health services, as well as the experience of patients and families who engage with the health care system. The purpose of the LHSIA references improving the health of Ontarians through “better access to high quality health services, coordinated health care in local health systems and across the province and effective and efficient management of the health system at the local level by local health integration networks”. The MOHLTC provincial strategic plan, Patients First: Ontario’s Action Plan commits to “putting people and patients first by improving their health care experience and health outcomes”, including through supporting Ontarians to take charge of their health and providing the education, information and transparency Ontarians need to make the right choices about their health.
LHINs have the power to audit service providers within their network. They may also require them to provide reports, plans or financial information necessary for undertaking such a review. Specifically, section 22 of the LHSIA enables a LHIN to require any health service provider to whom the network provides or proposes to provide funding, or any other prescribed entity or person to provide to it plans, reports, financial statements or other information. LHINs may disclose the information gathered in this manner to the Minister or to the Ontario Health Quality Council.
LHINs also have a responsibility to evaluate, monitor and report on and be accountable to the Minister for the performance of the local health system and its health services.
The various LHINs have undertaken a range of initiatives to meet these responsibilities. For example:
· The Central LHIN’s Integrated Health Service Plan 2013-16 lists “person-centeredness” as one of the four quality-based system directions for guiding LHIN activities and investments, citing the phrase “nothing about me, without me”. The Central LHIN has developed a number of tools to reflect patient priorities and adopt more robust mechanisms for quality improvement and accountability, including a Patient Experience Framework which is designed to incorporate understanding and improving the patient experience as a strategic objective by engaging patients, families and caregivers to assess quality from the patient’s perspective. The Framework will monitor the patient experience with a consumer scorecard populated with indicators selected by patients, families and caregivers. Proposed scorecard indicators as of March 2014 include, among others, respect for the patients’ values, preferences and expressed needs; information, communication and education, and the involvement of family and friends. The Framework will also develop “always events”, which are described as “aspects of the patient experience that health care providers should always get right”.
· The Toronto Central LHIN has developed a number of initiatives related to quality improvement, including a Quality Table which brings together a wide range of stakeholders to develop comprehensive measures for quality, System Quality Indicators, a Patient Experience Survey and a Standard Discharge Summary.
· The South West LHIN has created a Quality Improvement Enabling Framework to guide quality improvement initiatives and outreach efforts. Health service providers use this framework to develop and align quality improvement initiatives with the LHIN’s overarching goals.
The vital role that LHINs play in setting policy goals, service standards and quality indicators makes them well-placed to promote, support and monitor improvements in the quality of assessments of capacity under the HCCA and the provision of rights information. Existing commitments to improving the patient experience, informing people and patients, and improving quality of care are aligned with this objective.
DRAFT RECOMMENDATION 11:
a) Within the scope of its mandate, Health Quality Ontario take the following steps to improve the quality of assessments of capacity in health care settings:
i. encourage health care organizations to include issues related to assessment of capacity and the accompanying procedural right in their Quality Improvement Plans;
ii. include issues related to the assessment of capacity and the accompanying procedural rights in their patient surveys;
iii. assist partners in the health care sector in the development or dissemination of educational materials for health care organizations related to the assessment of capacity and the accompanying procedural rights; and
iv. consider bringing specific focus to monitoring of the quality of consent and capacity issues in health care through the production of a dedicated report on this issue.
b) Health Quality Ontario integrate into its initiatives as recommended by 11(a) a concept of quality that includes respect for patient autonomy, a knowledge of the legal foundations of capacity and consent, and the promotion of patient rights.
DRAFT RECOMMENDATION 12: The Ministry of Health and Long-Term Care encourage and support long-term care homes to better address their responsibilities under the Bill of Rights regarding consent, capacity and decision-making by:
a) including information related to these issues in their annual resident and family satisfaction surveys;
b) working with and strengthening the capacities of Residents and Family Councils to develop educational programs for residents and families on these issues; and
c) developing a thorough and specific focus on issues related to consent, capacity and decision-making in the staff training that they provide to staff.
DRAFT RECOMMENDATION 13: Within the scope of their mandates and objects, the Local Health Integration Networks use their roles in improving quality, setting standards and benchmarks and evaluating outcomes to
a) support and encourage health services to improve information, education and training for professionals carrying out assessments of capacity;
b) ensure effective provision of rights information; and
c) support the provision of information and resources about their roles and responsibilities to persons identified as substitute decision-makers for treatment, admission to long-term care and personal assistance services.
DRAFT RECOMMENDATION 14: Should the LCO’s recommendations related to capacity and consent in the health care setting be implemented, the Government of Ontario actively monitor and evaluate their success in improving the administration of assessments of capacity and meaningful access to procedural rights, with a view to taking more wide-ranging initiatives should significant improvement not be apparent.
Because legal capacity is the central organizing concept of this area of the law, how we assess legal capacity is foundational to the ability of the law to achieve its goals. And because legal capacity, decision-making and guardianship law addresses issues of fundamental rights, the success of our approaches to assessing legal capacity has a profound effect on the rights of those affected.
Ontario has multiple interconnected systems for assessing legal capacity. Ontario’s nuanced approach to the concept of legal capacity, described in Chapter IV, is mirrored in its complicated systems for assessment. These multiple systems attempt to reflect and address the many environments in which assessments are carried out and the varied purposes for assessment. They are, however, confusing and difficult to navigate. For this reason, the LCO has recommended clarifying standards and basic procedural rights, to better guide both those who seek or provide assessments and those who are subject to them.
As noted above, the appropriate application of assessments is connected to access to basic rights; therefore, it is important that individuals be able to access assessments as necessary and to be provided with adequate and appropriate procedural rights. The LCO is concerned by widespread reports of shortfalls in procedural rights for persons found legally incapable under the HCCA. Given the complexity of the system and current restraints, the LCO has identified a number of immediate steps which can be employed to strengthen the current rights information regime, as well as emphasized the importance, over the longer term, of identifying how the most vulnerable individuals can have access to advice about their rights that is independent and expert.
This Chapter did not address in-depth concerns related to the mechanisms available to challenge the results of assessments of capacity, a topic which is dealt with in Chapter VIII, dealing with rights enforcement and dispute resolution. Issues of access to high quality, consistent and appropriate assessments of capacity also underlie issues related to external appointment processes (particularly in the case of statutory guardianship), which is addressed in Chapter IX, as well as some issues related to personal appointments, which are the subject of Chapter VII.
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