Introduction to Consent and Capacity 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]. 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.(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

Consent: An Area of Confusion

Consent may be one of the most misunderstood areas in residential care. In a closed environment where people are dependent on others for almost every aspect of their lives, being asked (having people seek permission to do something), and having control over what happens to oneself and one’s body in the day to day life of residential care becomes vitally important to physical autonomy and maintaining dignity as an adult. Consent is an important precondition that helps prevent treating residents as passive objects to whom food, care, or assistance is simply given, or on whom activities are imposed.

In residential care facilities, many residents have some degree of cognitive impairment or may have difficulty communicating. Staffing and administrative pressures stress the need for efficiency when interacting with residents. In these circumstances it can become easy for staff and others to want to turn to someone other than the resident for consent for what they want to do. Alternatively, they may prefer to take direction from a document, particularly where there is any uncertainty, without first speaking to the resident. However, if a resident is capable, under British Columbia law the health care provider must never rely on a substitute decisionmaker for consent, or on an advance directive or other legal document for instructions or to determine the resident’s wishes.

Mental Capacity to Consent

As a solicitor, it is important to keep in mind that capacity is task, time and situation specific. (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. (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. (4) Capacity to execute a power of attorney is different than capacity to manage property. (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 (6) and Representation Agreement Act (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.(8) The Health Care (Consent) and Care Facility (Admission) Act (9)(HCCCFA) similarly reaffirms the presumption in the context of health care, as does the Powers of Attorney Act(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. (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.

Misuses of Presumptions

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.

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."(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. (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.(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. (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. (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. (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.(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.(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. (20) Yet these markers do not translate very well for the real life decisions in residential care, nor are they legal standards.

References

1. 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”]
2. Capacity to grant or revoke power of attorney. Online : http://whaleyestatelitigation.com/blog/2008/11/capacity-to-grant-or-revoke-power-of-attorney/
3. ACE: Decisionmaking, p. 7.8 and 7.9.
4. ACE: Decisionmaking.
5. Desormeaux v. Kicz (7 July 2000), Court File No. A-8757/2000 (Ontario Superior Court of Justice) at par.17.
6. Adult Guardianship Act, [RSBC 1996] c. 6, [“AGA”]
7. Representation Agreement Act [RSBC 1996] c. 405. [ “RRA”]
8. AGA, s. 3 (1)
9. Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181, s. 3. [“HCCCFA”].
10. Power of Attorney Act [RSBC 1996] c. 370.
11. 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”]
12. 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].
13. HCCCFAA, s.8.
14. HCCCFAA, s.8 (a) and (b).
15. 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.
16. O’Connor, p. 10
17. O Connor, p. 10.
18. O’Connor, p. 3.
19. O’Connor, p. 25.
20. O’Connor, p. 9.
21. HCCCFAA, s. 5.
22. HCCCFAA, s. 3.
23. HCCCFAA, s. 10.
24. HCCCFAA s.9 (2).

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

A voluntary transfer of property from one person to another, without expectation of payment or reward. Gifts to one spouse do not usually qualify as family property, and are excluded from the pool of property to be divided. See "donee," "donor," "excluded property" and "family property."

(1) A lawyer, or (2) the advice given by a lawyer to their client.

Something which can be owned. See "chattels" and "real property."

A conclusion made by a judge which decides a point of law or a fact in dispute.

In contract law, to complete or accomplish; to complete the legal formalities necessary to give a document effect. One "executes" a separation agreement, for example, by signing it in the presence of a witness.

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner," which means something else altogether. See "age of majority."

In law, a legal obligation to do or not do something, whether under the common law or pursuant to legislation. See "act" and "common law."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

To determine the proper value or worth of something. A lawyer's bill may be assessed by a registrar to determine the actual amount the client should pay. See "appraisal."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."