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This chapter also discusses advance care planning and identifies important differences between the process of “advance care planning” and “advance directives” as a mechanism to give or refuse consent to certain kinds of treatment.
:''There is a legal presumption that all adults are mentally capable, no matter how old they become, no matter what disability they may have, and no matter where they live, unless there are reasonable grounds to believe otherwise.([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|1]]) Just because a person lives in a long term care facility does not mean that he or she is incapable of making decisions.''
::- Advocacy Centre for the Elderly
==Mental Capacity to Consent==
:''As a solicitor, it is important to keep in mind that capacity is task, time and situation specific.'' ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|2]])
Before a person can be considered to have consented or to have refused consent for particular type of decision or matter, they must first have the capacity to consent. Capacity is always issue or decision specific, and it is time specific. For older adults who are admitted to and live in residential care facilities, capacity to consent arises in the context of many types of decisions they make, including the capacity to make health care, personal care and financial decisions, capacity to enter into a contract, to name a substitute, to give a gift, and to retain legal counsel.
Consent relates to the particular task or decision or group of decisions at hand. For example, a person who lives in residential care may be mentally incapable of making decisions about management of his or her property and yet still be mentally capable of making decisions about health care. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|3]]) Even if there has been a "formal" finding of incapacity by a physician or other health care provider, that finding relates to a particular type of incapacity. This still means that that same person may be able to make other types of decisions.
Different decisions also require different types and different levels of capacity. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|4]]) Capacity to execute a power of attorney is different than capacity to manage property. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|5]]) It has been suggested the capacity to give instructions about personal care decisions may be "higher" than capacity to execute a Representation Agreement for Personal Care. Capacity to give or refuse consent to complex surgery is higher than capacity to consent or refuse consent to receiving medical treatment for a minor cut or abrasion.
==Presumption of Capability==
British Columbia’s Adult Guardianship Act ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|6]]) and Representation Agreement Act ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|7]]) emphasize every adult is presumed to be capable of making decisions about the adult's personal care, health care, legal and certain financial affairs, until the contrary is demonstrated.([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|8]]) The Health Care (Consent) and Care Facility (Admission) Act ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|9]])(HCCCFA) similarly reaffirms the presumption in the context of health care, as does the Powers of Attorney Act([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|10]]) in the context of financial matters.
The question of capability and the presumption associated with it, always relate to the specific decision at hand. A medical diagnosis by itself is not indicative of an individual’s mental capacity. Even for conditions such as dementia, where people tend to assume there may be diminishing capability to make decisions, health research shows there is considerable heterogeneity among people with the diagnosis on the extent of impairment they have and whether it affects their ability to make decisions.
Mental capability can be affected by many things, including dementia, delirium, depression and drugs. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|11]]) As a result, whether or not the person is mentally capable at the time can fluctuate.
Presumption of capability, however, is a starting point and can be rebutted. There are numerous instances in which it can be demonstrated that the resident is not capable of making a particular decision. This does not necessarily require a formal assessment of the person’s mental capability.
In other instances, the residents may have a specific diagnosis that people tend to equate with incapacity. The residents may have difficulty communicating or expressing their wishes, or perhaps they have scored below a threshold on a particular test. A health care provider or other person may incorrectly presume the resident is incapable when actually the resident is capable, and as a result the resident is not asked and is left out of the consent process.
Both health care law and adult guardianship law in British Columbia recognizes these tendencies and tries to address some of them, especially related to communication difficulties. The health care consent law specifically notes that “ an adult's way of communicating with others is not, by itself, grounds for deciding that he or she is incapable of understanding."([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|12]]) The health care consent law also places a duty on health care providers to “communicate in an appropriate manner”, when seeking an adult's consent to health care or deciding whether an adult is incapable of giving, refusing or revoking consent. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|13]])This includes communicating in a manner appropriate to the adult's skills and abilities, and allowing the adult's spouse, or any near relatives or close friends to help the adult to understand.([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|14]])
==How is Capability Determined?==
British Columbia’s health care law does not define “capability”. Instead, the focus is on the health care providers determining whether or not the person demonstrates understanding of the information the health care provider is giving and that the information given actually applies to him or her. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|15]])
In general, there is an expectation that any threshold for determining what constitutes a “minimally accepted level of understanding, appreciation or reasoning” should be decision-specific. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|16]]) The threshold may also depend, in part on balancing risk against benefits. For example, higher thresholds need to be associated with situations where “being wrong” carries greater danger for the person. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|17]]) For example, setting the threshold for capacity to consent to sexual activity in residential care too low may leave some residents vulnerable to exploitation and risk their personal safety. This, however, is not always included as a consideration.
==Understanding Tests of Incapability==
There is no one standard formal test that is used to determine if a person is mentally capable of making a specific type of decision. In 2009, the Office of the Public Guardian and Trustee commissioned a study to review tools being used to formally assess incapability. The report specifically noted that none of the commonly used capacity assessment tools had actually been tested to see how well they applied in the context of British Columbia’s law.([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|18]])
The Mini Mental Status Examination [“MMSE”] is one of the most commonly used tools used to assess capacity. Families members may be told a resident scored 22 out of 30 or 14 out of 30 on the “Mini Mental”, and consequently the person is mentally capable or is not mentally capable. This screening tool was never intended to be used as a diagnostic tool on its own, nor was it developed as an assessment of capacity.([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|19]])
There are four standards generally accepted in research and practice as required for evidence that someone is capable of decision-making: being able to understand information; being able to “appreciate”, i.e., applying information to their own circumstances and realizing the consequences for them; being able to reason how they came to a decision; and making a choice. Expressing a choice is seen as a lower threshold than reasoning, and being able to understand information is a less stringent test than appreciation. ([[Chapter Six Legal Issues in Residential Care {{PAGENAME}}#References|20]]) Yet these markers do not translate very well for the real life decisions in residential care, nor are they legal standards.
==References==
#ACE (2004). Advocacy Centre for the Elderly. Long-Term Care Facilities in Ontario: The Advocate's Manual. Chapter 7 Decision Making , page 7.7 [“ACE: Decisionmaking”]
#Capacity to grant or revoke power of attorney. Online : http://whaleyestatelitigation.com/blog/2008/11/capacity-to-grant-or-revoke-power-of-attorney/
#ACE: Decisionmaking, p. 7.8 and 7.9.
#ACE: Decisionmaking.
#Desormeaux v. Kicz (7 July 2000), Court File No. A-8757/2000 (Ontario Superior Court of Justice) at par.17.
#Adult Guardianship Act, [RSBC 1996] c. 6, [“AGA”]
#Representation Agreement Act [RSBC 1996] c. 405. [ “RRA”]
#AGA, s. 3 (1)
#Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181, s. 3. [“HCCCFA”].
#Power of Attorney Act [RSBC 1996] c. 370.
#BC Law Institute (2013). Report on Common Law Tests of Capacity, BCLI Report. No. 73. p. 13-16. Online: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf (Last accessed: May 1, 2014) [“BCLI Capacity”]
#HCCCFA, s.3 (2). Also AGA, s. 3 (2) specifically notes “An adult's way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about [the adult's personal care, health care and financial affairs].
#HCCCFAA, s.8.
#HCCCFAA, s.8 (a) and (b).
#O’Connor, D. (2009). Assessing incapacity: review of tools. Public Guardian and Trustee, page 10. Online : http://www.trustee.bc.ca/pdfs/STA/Incapability_Assessments_Review_Assessment_Screening_Tools.pdf Last accessed: March 9, 2014 [“O’Connor”]. O’Connor notes that unlike some jurisdictions, the notion of ‘appreciation’ is not actually used in BC’s health care consent law. However, the ideas underpinning it are arguably captured in the standard that the person recognizes that the information applies to him or her.
#O’Connor, p. 10
#O Connor, p. 10.
#O’Connor, p. 3.
#O’Connor, p. 25.
#O’Connor, p. 9.
#HCCCFAA, s. 5.
#HCCCFAA, s. 3.
#HCCCFAA, s. 10.
#HCCCFAA s.9 (2).
{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
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