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Elder Law Review Vol 4
Capacity Assessments in British Columbia – some thoughts on educating the decision makers.
Madam Justice Allan
Introduction
This article briefly explores three issues: (1) the outmoded legislation governing capacity in British Columbia (B.C.); (2) the first Canadian judicial education seminar dealing with elder law issues, primarily capacity; and (3) the need to educate medical professionals with respect to the legal process surrounding the determination of incapacity.
Committeeship – the result of a finding of incapability
In B.C., as in all common law jurisdictions, there is a legal presumption that adults are capable of making the necessary decisions both with respect to themselves and with respect to their property. However, although legislative changes are expected within the next year or so, the relevant statute, the Patients Property Act (the "PPA") is paternalistic and protectionist in its nature and purpose. In B.C., the issue of whether or not adults lack the capacity to make decisions with respect to their personal affairs and/or their property is determined under that Act. The mere title of the PPA, which refers to the adult in question as the "patient" suggests the likely outcome of any application by the Public Guardian and Trustee ("PGT") or a private individual who might apply to become the "committee" (i.e., "parent-like" guardian) of the adult’s property or person. A "patient" is defined in s. 1:
(a) a person who is described as one who is, because of mental infirmity arising from disease, age or otherwise, incapable of managing his or her affairs, in a certificate signed by the director of a Provincial mental health care facility or psychiatric unit as defined in the Mental Health Act, or
(b) a person who is declared under this Act by a judge to be
(i) incapable of managing his or her affairs,
(ii) incapable of managing himself or herself, or
(iii) incapable of managing himself or herself or his or her affairs.
Applications to the Supreme Court under the PPA generally seek an order of committeeship on the basis that "the patient" lacks the necessary capability to manage herself -- or her affairs -- or both -- by reason of mental infirmity or disorder -- arising from disease, age or otherwise . Less frequently, the Court will be asked to make an order that the patient is no longer incapable .
In other jurisdictions, notably Australia, New Zealand, Japan, some American states, and a few Canadian provinces, adult guardianship legislative reform has focused on the dignity and autonomy of the person with diminishing or diminished capacity. When measures are required to protect the adult, the steps taken are more nuanced and layered than our system of committeeship in B.C.
The more flexible provisions of modern adult guardianship legislative schemes generally provide decision-making assistance only in relation to decisions the adult is required to make but cannot. In contrast, the PPA provides no middle ground between an appointment of a committee and no intervention at all.
Although it is the Supreme Court of BC that must make a legal determination of mental incapability, applications for committeeship must be supported by two opinions of qualified B.C. doctors that the "patient" is incapable. While Courts are respectful of the expertise of medical doctors, the latter’s opinions are not conclusive of a legal determination regarding capacity. It is ultimately the judge’s role to determine -- on all of the evidence -- whether the adult is capable or not capable of making the relevant decisions.
Judicial education – the first elder law programme in Canada
In Canada, the National Judicial Institute is responsible for the continuing legal education of federally appointed judges. Each federal court holds one or more educational sessions each year.
In November 2005, for the first time, Elder Law was one of the topics covered in a Canadian judicial educational conference. That conference took place in Vancouver and was attended by the majority of the 103 B.C. Supreme Court judges. The purpose of the half-day session was to raise the awareness of judges of the issues involved in assessing capability and give them the tools to identify and resolve those issues. The programme commenced with the scary reality of the demographics of aging . A panel then discussed the issue of capacity assessment under several headings: ethical issues ; assessment of incapacity: issues and techniques ; and tools for assessing capacity. Drs. Kline and Rauscher, who dealt with the last issue, discussed best practices involved in the actual process of conducting a capacity assessment from a medical point of view. They emphasized the fact that capacity determination is task-specific and time-specific and stated that the assessor’s focus should be on maximizing the adult’s capacity by optimizing the circumstances of the assessment. It is vital that a medical opinion arising from the assessment focus on the adult’s capabilities with respect to the specific capacities in issue (e.g., money management, personal care). An instructive question is "from what harm are we seeking to protect this individual?"
Following the panel discussion, two of the judges and a lawyer "role-played" a hypothetical case involving a dispute relating to capacity: the PGT, who sought a declaration that an 86 year old woman was incapable of managing herself and her affairs by reason of mental incapacity, applied to be appointed committee of her person and her estate. The judges then broke into small groups with facilitators to consider whether the PGT was entitled to the relief it sought and whether the adult should be required to submit to a further medical examination.
In the small groups, the judges worked through the many clinical, ethical and legal principles that guide a determination of capacity. In particular, they considered the following issues:
- Is there a tendency of the courts to emphasize safety and protection over the autonomy of the adult?
- What is the Court’s role when there is a spectre of undue influence, abuse or exploitation?
- In light of conflicting medical evidence, which opinions were the best evidence of the adult’s capacity or incapacity?
Medical education – what do doctors know about the legal issues of capacity?
It was extremely valuable for the judiciary to hear medical professionals discuss clinical best practices involved in gerontological capacity assessments. However, even the medical experts at the NJI conference expressed doubts that all doctors who perform capacity assessments have a clear understanding of either their role in assessing capability or the relationship between their opinions and the legal determination of capacity.
This concern is shared by lawyers who practice in this area. They perceive that doctors, who otherwise understand the elements of a good competency assessment and are alert to best practices in that area, too often lack any clear understanding of the legal or court process. Many doctors incorrectly assume that committee applications, supported by the necessary medical opinions, are simply "rubber-stamped" by the Court. Some believe that, in appropriate circumstances (e.g. where the lawyer who retained them does not file their opinion in Court), they could write a letter to the judge, which would then have the weight of legal evidence. Some doctors fail to understand that their sworn affidavits, containing their opinion, constitute legal evidence and that they may be cross-examined on that evidence.
Doctors do not always appreciate the crucial fact that, at law, there is in every case a presumption of capacity and that presumption must be the starting point for an assessment.
Doctors often fail to understand their role. They must not be advocates or "hired guns" for the patient or for the lawyer who has hired them. Judges rely on the neutrality and expertise of these medical assessors. Too often, doctors believe that they "declare competence’ whereas that declaration is a judicial decision. The doctor’s role is limited to providing an "opinion" regarding incapability and the judge’s role is to make a legal determination of capability or incapability. The judge may reject some or all of the medical evidence after hearing all of the relevant evidence.
A medical opinion will be given little or no weight unless the facts and assumptions upon which the opinion is based are clearly articulated.
An opinion that is bolstered by a detailed description of the underlying clinical observations or test results will be given far more weight than an unsupported opinion. Failure to provide sufficient underlying facts will prevent the judge from weighing conflicting medical opinions.
Doctors should be aware of the provisions of the relevant legislation and the actual legal process and procedures. They should know that the subject adult will generally be served with notice of the application and may oppose it if he or she wishes to. An application for committee should never be "rubber stamped" by the judge who will be alive to the fact that a declaration of incapability results in the loss of that adult’s civil liberties. However, an application should move quickly through the court process if it is not opposed by the adult or anyone else.
If a judge received a letter from an assessing doctor, that letter would be a "red light" which might warrant halting the proceedings until the doctor’s concerns were properly addressed. However, any such letter could never be evidence in the case. The doctor’s evidence must either be given orally in court or be incorporated into an affidavit, upon which the doctor could be cross-examined. Affidavit evidence is taken as seriously as oral evidence given in the court room.
Further, when doctors are retained as experts on the issue of capability, they must not allow themselves to be pressured by the lawyer who retains them to make statements in their affidavits with which they are uncomfortable. The judge relies upon the doctor’s expertise and neutrality in expressing his or her opinion on the adult’s competence. In order to determine the weight to be given to a particular assessment of capacity, the Court is particularly interested in the following factors:
- Is the assessor a specialist or a general practitioner?
- How experienced is the assessor?
- How long did the assessment take?
- Was there more than one assessment?
- Where did the assessment take place?
- Was anyone else present?
- How comfortable was the adult? (health, time of day, nutrition, rest, etc.)
- Did the assessor take careful notes of the entire interview?
- Was there reliance on the Mini-Mental status test?
Conclusion
In summary, it is clear that both judges and lawyers benefit from learning the clinical aspects of capacity assessments; however, if the court process for the determination of capacity is to work properly doctors must also be educated in order to understand how their assessments actually fit into the legal and judicial procedures under the relevant legislation.
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