Introduction to Consent and Capacity in Residential Care - Revision history

Charmaine Spencer: /* Understanding Tests of Incapability */

2016-01-19T19:16:05Z

Understanding Tests of Incapability

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	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.([[{{PAGENAME}}#References\|19]])		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.([[{{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. ([[{{PAGENAME}}#References\|20]]) Yet these markers do not translate very well for the real life decisions in residential care, nor are they legal standards.		There are four standards generally accepted in research and practice as required for evidence that someone is capable of decision-making. These are: a) being able to understand information; b) being able to “appreciate”, i.e., applying information to their own circumstances and realizing the consequences for them; c) being able to reason how they came to a decision; and d) 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. ([[{{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==		==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”]		#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”]

Charmaine Spencer: /* References */

2016-01-13T00:27:24Z

References

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	#Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181, s. 3. [“HCCCFA”].		#Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181, s. 3. [“HCCCFA”].
	#Power of Attorney Act [RSBC 1996] c. 370.		#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”]		#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: January 9, 2016) [“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].		#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.
	#HCCCFAA, s.8 (a) and (b).		#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, 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: January 9, 2016)[“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. 10.		#O Connor, p. 10.

Charmaine Spencer: /* References */

2016-01-13T00:24:56Z

References

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	==References==		==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”]		#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/		#Goddard,J., Whaley, K.A., & Likwornik, H. Capacity to grant or revoke power of attorney. Online: http://whaleyestatelitigation.com/blog/2008/11/capacity-to-grant-or-revoke-power-of-attorney/ (Last accessed January 9, 2016)
	#ACE: Decisionmaking, p. 7.8 and 7.9.		#ACE: Decisionmaking, p. 7.8 and 7.9.
	#ACE: Decisionmaking.		#ACE: Decisionmaking.
	#Desormeaux v. Kicz (7 July 2000), Court File No. A-8757/2000 (Ontario Superior Court of Justice) at par.17.		#Desormeaux v. Kicz (7 July 2000), Court File No. A-8757/2000 (Ontario Superior Court of Justice) at par.17.

Nate Russell: /* References */

2014-07-25T20:47:07Z

References

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	#O’Connor, p. 25.		#O’Connor, p. 25.
	#O’Connor, p. 9.		#O’Connor, p. 9.
	~~#HCCCFAA, s. 5.~~
	~~#HCCCFAA, s. 3.~~
	~~#HCCCFAA, s. 10.~~
	~~#HCCCFAA s.9 (2).~~

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Nate Russell at 20:46, 25 July 2014

2014-07-25T20:46:41Z

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Nate Russell at 18:17, 24 July 2014

2014-07-24T18:17:00Z

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	{{Legal Issues in Residential Care: An Advocate's Manual TOC}}		{{Legal Issues in Residential Care: An Advocate's Manual TOC\|expanded=chapter6}}

	This chapter covers the law on consent, particularly as it relates to health care and care plans, and personal care matters in residential care. It introduces the mental capacity or capability needed to make specific decisions that frequently come up in residential care and the relationship between consent and capacity. [Consent in specific circumstances including visitors, restraints, medications, and monitoring technology are described in detail in the Chapter Four -Legal Issues When Living in Residential Care].		This chapter covers the law on consent, particularly as it relates to health care and care plans, and personal care matters in residential care. It introduces the mental capacity or capability needed to make specific decisions that frequently come up in residential care and the relationship between consent and capacity. [Consent in specific circumstances including visitors, restraints, medications, and monitoring technology are described in detail in the Chapter Four -Legal Issues When Living in Residential Care].

Admin at 16:00, 18 July 2014

2014-07-18T16:00:33Z

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Marisa Chandler at 21:03, 4 July 2014

2014-07-04T21:03:37Z

Marisa Chandler: Marisa Chandler moved page A. Part 1 Introduction to Consent and Capacity in Residential Care to Introduction to Consent and Capacity in Residential Care

2014-07-03T18:13:22Z

Marisa Chandler moved page A. Part 1 Introduction to Consent and Capacity in Residential Care to Introduction to Consent and Capacity in Residential Care

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(No difference)

Marisa Chandler: /* Misuses of Presumptions */

2014-06-27T17:37:45Z

Misuses of Presumptions

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	In a care facility, the presumption on capability may be misused or it may be overlooked. In some instances residents will be treated as capable of making certain decisions when actually they are not. Typically this may occur when they are compliant or passive (“non resistive”) when it comes to care. In other instances, residents may be approached by staff or others in ways in which resistance is gradually worn down and where they acquiesce with what is being proposed. The resident simply accedes to what the health care provider is doing or would like to see accomplished, because they do not know or feel they have alternatives or have a choice.		In a care facility, the presumption on capability may be misused or it may be overlooked. In some instances residents will be treated as capable of making certain decisions when actually they are not. Typically this may occur when they are compliant or passive (“non resistive”) when it comes to care. In other instances, residents may be approached by staff or others in ways in which resistance is gradually worn down and where they acquiesce with what is being proposed. The resident simply accedes to what the health care provider is doing or would like to see accomplished, because they do not know or feel they have alternatives or have a choice.

	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.\		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 .“ 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. 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.		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 .“ 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. 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.

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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.		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. Just because a person lives in a long term care facility does not mean that he or she is incapable of making decisions.''		:''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 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		::- Advocacy Centre for the Elderly
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	==Mental Capacity to Consent==		==Mental Capacity to Consent==

	:''As a solicitor, it is important to keep in mind that capacity is task, time and situation specific.''		:''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 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.		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. 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.		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 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. Capacity to execute a power of attorney is different than capacity to manage property. 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.		Different decisions also require different types and different levels of capacity. ([[Chapter Six Legal Issues in Residential Care References\|4]]) Capacity to execute a power of attorney is different than capacity to manage property. ([[Chapter Six Legal Issues in Residential Care 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==		==Presumption of Capability==

	British Columbia’s Adult Guardianship Act and Representation Agreement Act 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. The Health Care (Consent) and Care Facility (Admission) Act (HCCCFA) similarly reaffirms the presumption in the context of health care, as does the Powers of Attorney Act in the context of financial matters.		British Columbia’s Adult Guardianship Act ([[Chapter Six Legal Issues in Residential Care References\|6]]) and Representation Agreement Act ([[Chapter Six Legal Issues in Residential Care 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 References\|8]]) The Health Care (Consent) and Care Facility (Admission) Act ([[Chapter Six Legal Issues in Residential Care 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 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.		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. As a result, whether or not the person is mentally capable at the time can fluctuate.		Mental capability can be affected by many things, including dementia, delirium, depression and drugs. ([[Chapter Six Legal Issues in Residential Care 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.		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.

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	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.		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 .“ 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. 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.		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 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 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 References\|14]])

	==How is Capability Determined?==		==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.		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 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. 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. 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.		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 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 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==		==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.		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 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.		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 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. Yet these markers do not translate very well for the real life decisions in residential care, nor are they legal standards.
			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 References\|20]]) Yet these markers do not translate very well for the real life decisions in residential care, nor are they legal standards.


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