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2010, Community Law School
(Sarnia-Lambton) Inc.
About our presenter…
Judith Wahl has been the Executive Director and Senior Lawyer at the
Advocacy Centre for the Elderly (ACE) since 1984. ACE is a community
legal service for low income seniors that focuses on legal issues that have
a greater impact on the older population.
Judith has organized and taught numerous public legal education
programmes on legal issues that arise in day to day work with seniors,
including Advance Care Planning - Physicians’ Training Ontario College of
Family Physicians and Alzheimer Society of Ontario; Gerontology
Programme at McMaster University, Faculty of Social Sciences; the
Diversity Training Course at C.O. Bick Police College; as well as
Continuing Legal Education Programmes for the Law Society of Upper
Canada, Ontario Bar Association, the former Canadian Bar Association –
Ontario, and the Canadian Bar Association National.
Mental Capacity and
Decision Making - The
ABCs of Substitute
Decision Making
Judith Wahl
Advocacy Centre for the Elderly
[email protected]
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Advocacy Centre for the Elderly
2010
Advocacy Centre for The
Elderly
2 Carlton Street, Suite 701
Toronto, Ontario
M5B 1J3
 Tel - 416-598-2656
 Fax - 416-598-7924
 Email
[email protected]
 Website www.acelaw.ca
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Advocacy Centre for the Elderly 2010
Today’s Webinar
Part I of 2
Mental Capacity and Substitute
Decision Making
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Decision-making
When someone else gets authority to make
decisions for you
How mental capacity is defined in law
How mental capacity for decision making is
assessed
Who assesses mental capacity for different
purposes
Who are your substitute decision makers for
different purposes
Advocacy Centre for the Elderly 2010
Next Webinar - Part 2 of 2
Powers of Attorney and other Substitute
Decision Making Authorities
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What is a Power of attorney
Different types of POAs
Why you may want to prepare a POA
How you can prepare a POA
When a POA comes into effect and why
What happens if you haven’t prepared a POA
The authority of the attorney named in a POA.
Other substitute decision making authorities
 Statutory guardianships
 Court ordered guardianships
 Substitute decision maker for health care when you
have not prepared a POA for Personal care
Advocacy Centre for the Elderly 2010
Questions during Webinar
Please write your questions in the
chat box during the presentation
 We will also break for questions twice
during the presentation
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after the explanation of the
assessment of mental capacity AND
 after the explanation of who assesses
mental capacity
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We will also take questions at the end
Advocacy Centre for the Elderly 2010
Legislation
 Substitute
Decisions Act (SDA)
 Health Care Consent Act
(HCCA)
 Mental Health Act (MHA)
See “Laws” on the Ontario Government
website at www.gov.on.ca
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Advocacy Centre for the Elderly 2010
Decision Making
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What kinds of decisions do you make in
your life and how are these classified
under the law?
Who is the decision maker – yourself
or someone else (your substitute
decision maker - SDM) for what kind of
decisions? And why?
Advocacy Centre for the Elderly 2010
What Decisions do you
make in your Life?
In Law, all decisions are divided into
two main streams:
 Property
 Personal Care
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Health Care is the major area of
Personal Decision Making
Advocacy Centre for the Elderly 2010
What are Decisions about
Property?
Managing money day to day
 Paying bills
 Banking
 Buying a house
 Investing
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Advocacy Centre for the Elderly 2010
What are Decisions about
Personal Care?
Shelter
 Nutrition
 Hygiene
 Safety
 Clothing
 Health care
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Advocacy Centre for the Elderly 2010
What are Health Care
Decisions?
Treatment
 Admission to Long term Care
 Personal Assistance Services
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Advocacy Centre for the Elderly 2010
Who Decides?
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You decide for yourself if
MENTALLY CAPABLE
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Your Substitute Decision Maker
(SDM) if you are NOT mentally
capable
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Advocacy Centre for the Elderly 2010
Mental Capacity
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Mental Capacity is a socio-legal construct and its
meaning varies over time and across jurisdictions
Assessment / evaluation refers to a legal
assessment not a clinical assessment
Clinical assessments underlie diagnosis,
treatment recommendations and identify or
mobilize social supports
Legal assessments remove from the person the
right to make autonomous decisions in specified
areas
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Advocacy Centre for the Elderly 2010
Mental Capacity
Not the score on the Mini Mental
Status Exam or any other test
 Not a Diagnosis
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Advocacy Centre for the Elderly 2010
What does it mean to be
Mentally Capable?
Capacity is related to a particular
decision
 You can be capable for some
purposes and incapable for others
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You can be incapable to manage
property/ money but capable for
health decisions
Advocacy Centre for the Elderly 2010
What does it mean to be
Mentally Capable?
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To be Mentally Capable means that
you have the ability to understand
information relevant to making the
decision and the ability to appreciate
the consequences of making a
decision or not making a decision
Advocacy Centre for the Elderly 2010
Incapacity to Manage
Property
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SDA S.6 incapable of managing
property if the person is not able to
understand information that is relevant
to making a decision in the
management of his or her property, or
is not able to appreciate the
reasonably foreseeable
consequences of a decision or lack of
decision.
Advocacy Centre for the Elderly 2010
Incapacity for Personal Care
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SDA S. 45 a person is incapable of
personal care if the person is not able
to understand information that is
relevant to making a decision
concerning his or her own health care,
nutrition, shelter, clothing, hygiene or
safety, or is not able to appreciate the
reasonably foreseeable
consequences of a decision or lack of
decision.
Advocacy Centre for the Elderly 2010
Capacity in respect to Treatment, Admission
to Care Facilities, and Personal Assistance
Services
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HCCA s.4
Able to understand the information
that is relevant to making a decision
about the treatment, admission, or
personal assistance service as the
case may be and able to appreciate
the reasonable foreseeable
consequences of a decision or lack of
decision.
Advocacy Centre for the Elderly 2010
Presumption of Capacity
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HCCA s.4
Person presumed to be capable for treatment,
admission to care facilities and personal
assistance services.
EXCEPTION
Person entitled to rely on presumption unless
he or she has reasonable grounds to believe
the other person is incapable in respect to
treatment, admission to care facilities, personal
assistance services as case may be
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Advocacy Centre for the Elderly 2010
Capacity
Capacity is a cognitive test - not a functional
test.
Indicators are:
 Understand (factual knowledge + problem
solving ability)
 Appreciate (realistic appraisal of outcome
+ justification of choice)
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Advocacy Centre for the Elderly 2010
Understand - 1st Base
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Factual knowledge: preservation of old skills &
knowledge
Has the person had learning opportunities to
acquire the relevant facts:
Updated information re: medical status, new risks
or limits in ADL functions?
What does a "nursing home" mean to the person has s/he ever visited one; what benefits might it
offer: what risks?
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Advocacy Centre for the Elderly 2010
Understanding Options 2nd Base
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Able to comprehend information about
options, risks to make an informed choice
Able to attend to relevant stimuli, understand
at conceptual level and retain essential
information long enough to reach a decision
Able to remember prior choices and express
them in a predictable and consistent manner
over time
Able to problem solve around personal
issues-probe specific example
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Advocacy Centre for the Elderly 2010
Appreciate - 3rd Base
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Able to appraise potential outcomes of a
decision
Focus on reasoning process, explore the
personal weights, values attached to each
outcome
Acknowledges personal limitations/show insight
Decision-making is reality-based, not being
affected by delusions (fixed false beliefs) or
skewed by emotional states (depression,
hopelessness causing an undervaluing of
survival issues)
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Advocacy Centre for the Elderly 2010
Appreciate - 4th Base
Justification of choice:
 Shows evidence of rational (based in
reality) manipulation of information - a
"reasoned choice", not necessarily a
reasonable choice
 Grounded in personal beliefs and values
consistent with previous actions, expressed
wishes, cultural or religious beliefs
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Advocacy Centre for the Elderly 2010
Questions ?
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Any questions on
decision making,
 the definition of mental capacity, or
 how mental capacity is assessed?
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Advocacy Centre for the Elderly 2010
Who decides on whether you
are Capable or not?
It depends on the type of decision and
whether the law requires a particular
person to assess capacity for a
particular purpose
 To do a POA – it’s the person
assisting you to create the document
and the witnesses that should be able
to say that you are mentally capable
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Advocacy Centre for the Elderly 2010
Who Assesses Capacity?
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Sometimes defined by Statute ( ie Capacity
Assessors for capacity to manage property to
trigger a Statutory Guardianship, Health
practitioners for treatment, Evaluators for
Capacity for Admission)
Sometimes in common law ( ie contracts)
Sometimes a variety of persons can provide
opinions or evidence as to incapacity ( ie
“defense” assessments)
SEE CHART on ACE website at
www.acelaw.ca
Advocacy Centre for the Elderly 2010
When “Capacity Assessors” are
Required to assess Capacity
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“Capacity Assessors” are a special kind of
assessor that must be used to
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assess capacity to manage property when
you have not prepared a POA property and
become incapable and need a Statutory
Guardian
To trigger a POA Property to come into
effect if the POA Property document requires
such an assessment by a capacity assessor
OR when the POA Property document states
that it doesn’t come into effect until a finding
of incapacity and no method of assessment
is specified in the document
Advocacy Centre for the Elderly 2010
Definition of Capacity
Assessor
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SDA s. 1(1)
“assessor” means a member of a
class of persons who are designated
by the regulations as being qualified
to do assessments of capacity.
Advocacy Centre for the Elderly 2010
Capacity Assessors
O.Reg.460/05
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S.2 (1) A person is qualified to do
assessments if he or she,
a) satisfies one of the conditions set out in
ss.(2)
(Member of particular College) ;
b) has successfully completed the
Qualifying course described in s.4
c) complies with s.5 (continuing education)
d) complies with s.6 (minimum annual
number of assessments)
e) is covered by professional liability
insurance of not less than $1,000,000...
Advocacy Centre for the Elderly 2010
Capacity Assessors
O.Reg.460/05
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S.2 (2)
is a member of one of the following Colleges.
a) College of Physicians & Surgeons of
Ontario.
b) College of Psychologists of Ontario.
c) Ontario College of Social Workers & Social
Service Workers and holds a certificate of
registration for social work.
d) College of Occupational Therapists of
Ontario.
e) College of Nurses of Ontario.
Advocacy Centre for the Elderly 2010
Right to Refuse an
Assessment
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SDA s. 78
(1) An assessor shall not perform an assessment of a
person’s capacity if the person refuses to be assessed.
(2) Before performing an assessment of capacity, the
assessor shall explain to the person to be assessed,
(a)
the purpose of the assessment
(b)
the significance and effect of a finding of
capacity or incapacity;
and
(c)
the person’s right to refuse to be assessed..
(3) subsections (1) and (2) do not apply to an assessment
if, (a)
assessment ordered by the court under s.
79; or
(b)
a power of attorney for personal care
contains a provision that authorizes the use of force to
permit the assessment and the provision is effective
under subsection 50(1).
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Advocacy Centre for the Elderly 2010
Who decides on whether you
are Capable or not for Health
Decisions ?
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For Health Treatment decisions, it’s the Health
practitioner offering you the treatment (the doctor, the
nurse, etc) who must determine if you are mentally
capable to consent or refuse consent to the treatment
The health practitioner that finds you incapable for a
treatment decision must advise you that he or she has
made this finding and will be turning to your SDM for
treatment decision for you
The health practitioner must also advise you that you
have a right to challenge this finding of incapacity by
making an application to the Consent and Capacity
Board
Advocacy Centre for the Elderly 2010
Who decides if you are Capable or not
to make decisions about Admission to a
Long Term Care Home?
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For Admission decisions it is an EVALUATOR who must
determine if you are mentally capable to consent or
refuse consent to admission
The Evaluator that finds you incapable for an admission
decision must advise you that he or she has made this
finding and will be turning to your SDM for admission
decisions for you
The evaluator must also advise you that you have a right
to challenge this finding of incapacity by making an
application to the Consent and Capacity Board
Advocacy Centre for the Elderly 2010
Definition of Evaluator
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HCCA s. 2(1)
A person described in clause (a), (l),
(m), (o), (p), or (q) of the definition of
the Health Practitioner or a member
of a category of persons prescribed by
the regulations as evaluators.
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Advocacy Centre for the Elderly 2010
Definition of Evaluator (cont’d)
Members of College of:
(a) Audiologist & Speech Language Pathologists
(l) Nurses
(m) Occupation Therapists
(o) Physicians & Surgeons
(p) Physiotherapists
(q) Psychologists
Prescribed by Regulations - social workers (Member of
the Ontario College of Social Workers and Social
Service Workers who holds a certificate of registration
for social work)
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Advocacy Centre for the Elderly 2010
Questions?
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Any questions about who assesses
mental capacity for a particular
purpose?
Advocacy Centre for the Elderly 2010
Who is your SDM for Property if you are
not mentally capable for property
decisions?
Someone you, when you are still
mentally capable, choose as an
“attorney” in a POA Property
 When you become incapable
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A Statutory Guardian for Property
 A Court Ordered Guardian of Property
 A Trustee appointed under the OAS or
CPP legislation
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Advocacy Centre for the Elderly 2010
Who is your SDM if you become
incapable for Personal Care?
Someone you choose in a POA
Personal Care
 A Court Ordered Guardian of the
Person
 For health decisions – the person or
persons highest ranking in the
hierarchy of SDMs in the Health Care
Consent Act
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Advocacy Centre for the Elderly 2010
Who is your SDM if you are not
mentally capable to make Health
Decisions?
You ALWAYS have an SDM for
Health Care even if you have not
done a POA Personal Care
 Your SDM is the person HIGHEST on
the list of SDMs in the Health Care
Consent Act
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Advocacy Centre for the Elderly 2010
List of SDMs for Health Care
1.
2.
3.
4.
5.
6.
7.
8.
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Court Ordered Guardian of the Person
Attorney in a Power of Attorney for
Personal care
Representative ( person appointed by the
Consent and Capacity Board)
Your spouse or partner
Your Child or parent
Your Brothers or sisters
Any of your other relatives
The Public Guardian and Trustee
Advocacy Centre for the Elderly 2010
Requirements for Person to
be an SDM for Health Care
Person highest in hierarchy may give or refuse
consent only if he or she:
a) is capable in respect to the treatment
b) is at least 16 years old unless the parent of the
incapable person
c) is not prohibited by a court order or separation
agreement from acting as SDM
d) is available
e) is willing to act as SDM
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Advocacy Centre for the Elderly 2010
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List of SDMs for Health Care
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If you have more than one person in the
same category that is available to act for
you as SDM, then all of them must act
together and agree or they may pick one of
the group to act for you – so if you have
three children all three may act for you or
they must choose which one will act for you
– THEY must agree in some way as to what
the decision is for you and how many of
them are “active” in the decision making.
Health providers cannot pick which of them
that may act for you
Advocacy Centre for the Elderly 2010
Definition of Spouse
Two persons (same sex or opposite sex) who are
(a) married to each other; or
(b) living common law and,
i) have cohabited for at least one year, or
ii) are together the parents of a child, or
iii) have together entered into a cohabitation
agreement under s. 53 of the Family Law Act.
Not spouses if living separate and apart as a result of
a breakdown of their relationship.
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Advocacy Centre for the Elderly 2010
Definitions
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PARTNER
Two persons who have lived for at least one
year and have a close personal relationship
that is of primary importance in both
person’s lives
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RELATIVE
People are relatives if related by blood,
marriage or adoption
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Advocacy Centre for the Elderly 2010
Summary****
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Capable people make their own decisions
“Mental Capacity” is a legal definition not a diagnosis
The law defines WHO assesses capacity for different
purposes
While capable, a person may prepare POAS to appoint
someone to be their future SDM
If incapable, everyone automatically has an SDM for
health care even if they didn’t do a POA because of
the HCCA
If person incapable, someone else would have to DO
something to become the SDM for property of that
person if that person had not done a POA property
while capable
Advocacy Centre for the Elderly 2010
Questions?
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Any Questions on any part of this
webinar?
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Advocacy Centre for the Elderly 2010
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2010, Community Law School
(Sarnia-Lambton) Inc.