Difference between revisions of "Introduction to Consent and Capacity in Residential Care"

:''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.''

:''As a solicitor, it is important to keep in mind that capacity is task, time and situation specific.''

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.

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.  

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.

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.

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.

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.

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.

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.

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.  

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.