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Procedural Fairness in Capacity Assessments
Published in the March 2006 issue of Litigation Notes - View Article
In a decision released on February 2, 2006, the Ontario Consent and Capacity Board (“Board”) considered the application of Ms. M.H. to review a finding that she was incapable of consenting to or refusing consent to her admission to a care facility.
Ms. M.H. suffers from Huntington’s Chorea, obsessive-compulsive disorder and cognitive impairment resulting from a fall down her basement stairs. The test for capacity is set out in Section 4 (1) of the Health Care Consent Act,1996 (“HCCA”):
“A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is 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 reasonably foreseeable consequences of a decision or lack of decision.”
It is a two part test. Firstly, the patient must have the cognitive ability to understand the information necessary to making a decision and secondly, the patient must be able to appreciate how the information applies to his or her situation. In this case the Board had questions about the patient’s ability to understand the relevant information, but didn’t have to decide the case on that basis, because it was clear that she did not apply any of the information about her illness or other mental and physical conditions to herself.
From a legal standpoint, the interesting aspect of the case was a preliminary challenge brought by counsel for Ms. M.H. He argued that the assessment was not valid, because the Evaluator who performed the assessment had not met the requirements of Section 78 of the Substitute Decisions Act, 1992 (“SDA”). That section provides that a person must consent to being assessed and before being assessed must be informed of the purpose of the assessment, the consequences of a finding of incapacity and the right to refuse the assessment.
However, admission to a care facility is not governed by the SDA but by the HCCA, which does not contain a provision analogous to Section 78 of the SDA. In Re Koch, Justice Quinn of the Ontario Court (General Division) made comments to the effect that Section 78 of the SDA should apply to assessments made pursuant to the HCCA. His comments have largely been viewed as obiter and in the Matter of M.B. the Board ruled that the HCCA contains its own safeguards, including Section 17, which applies to assessments of treatment incapacity and requires the health practitioner to supply information required by the guidelines of his or her professional body.
In Saunders v Bridgepoint Hospital, Justice Spies of the Ontario Superior Court of Justice was also dealing with a finding of incapacity with respect to admission to a care facility. She considered the Matter of M.B. and pointed out that Section 17 of the HCCA does not apply to capacity assessments for the purpose of admission to a care facility. She acknowledged that Koch cannot be said to stand for the proposition that Section 78 of the SDA applies to assessments under the HCCA and that a distinction has been drawn between an assessment conducted in a “one-time discrete process”, as in Koch, and an assessment conducted after a period of therapeutic interaction, as in the case before her. In the absence of a statutory provision like Section 78 of the SDA in the HCCA, she did not consider that she could address whether a patient should have the right to refuse an assessment. This is a matter which goes beyond procedural fairness and could only be considered in the context of a constitutional challenge.
However, she went on to say 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… [and] where the capacity assessment occurs as part of ongoing treatment, as it did in this case, the information noted above should be should be provided as soon as a decision to perform a capacity assessment is made and thereafter on an ongoing basis to ensure that the patient is very clear on the process.” Furthermore, the fact that this has been done should be properly documented in the patient’s clinical record.
In the matter of Ms. N.H. the Board acknowledged the procedural fairness requirements laid down by Justice Spies, but stated that in the assessment of Ms. N.H., no lack of procedural fairness had been alleged and none had been observed by the Board.
In the Matter of Ms. N.H., 2006 CanLII 3892