Mental Capacity and Decision Making: The ABCs of Substitute Decision Making

1. This webinar is brought to you by CLEONet www.cleonet.ca CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario. 2010, Community Law School (Sarnia-Lambton) Inc.

2. About our presenter… Judith Wahl has been the Executive Director and Senior Lawyer at the Advocacy Centre for the Elderly (ACE) since 1984. ACE is a community legal service for low income seniors that focuses on legal issues that have a greater impact on the older population. Judith has organized and taught numerous public legal education programmes on legal issues that arise in day to day work with seniors, including Advance Care Planning - Physicians’ Training Ontario College of Family Physicians and Alzheimer Society of Ontario; Gerontology Programme at McMaster University, Faculty of Social Sciences; the Diversity Training Course at C.O. Bick Police College; as well as Continuing Legal Education Programmes for the Law Society of Upper Canada, Ontario Bar Association, the former Canadian Bar Association – Ontario, and the Canadian Bar Association National.

3. Mental Capacity and Decision Making - The ABCs of Substitute Decision Making Judith Wahl Advocacy Centre for the Elderly wahlj@lao.on.ca Advocacy Centre for the Elderly 2010

4. Advocacy Centre for The Elderly • 2 Carlton Street, Suite 701Toronto, OntarioM5B 1J3 • Tel - 416-598-2656 • Fax - 416-598-7924 • Email wahlj@lao.on.ca • Website www.acelaw.ca Advocacy Centre for the Elderly 2010

5. Today’s Webinar Part I of 2 Mental Capacity and Substitute Decision Making • Decision-making • When someone else gets authority to make decisions for you • How mental capacity is defined in law • How mental capacity for decision making is assessed • Who assesses mental capacity for different purposes • Who are your substitute decision makers for different purposes Advocacy Centre for the Elderly 2010

6. Next Webinar - Part 2 of 2Powers of Attorney and other Substitute Decision Making Authorities • What is a Power of attorney • Different types of POAs • Why you may want to prepare a POA • How you can prepare a POA • When a POA comes into effect and why • What happens if you haven’t prepared a POA • The authority of the attorney named in a POA. • Other substitute decision making authorities • Statutory guardianships • Court ordered guardianships • Substitute decision maker for health care when you have not prepared a POA for Personal care Advocacy Centre for the Elderly 2010

7. Questions during Webinar • Please write your questions in the chat box during the presentation • We will also break for questions twice during the presentation • after the explanation of the assessment of mental capacity AND • after the explanation of who assesses mental capacity • We will also take questions at the end Advocacy Centre for the Elderly 2010

8. Legislation • Substitute Decisions Act (SDA) • Health Care Consent Act (HCCA) • Mental Health Act (MHA) See “Laws” on the Ontario Government website at www.gov.on.ca Advocacy Centre for the Elderly 2010

9. Decision Making • What kinds of decisions do you make in your life and how are these classified under the law? • Who is the decision maker – yourself or someone else (your substitute decision maker - SDM) for what kind of decisions? And why? Advocacy Centre for the Elderly 2010

10. What Decisions do you make in your Life? In Law, all decisions are divided into two main streams: • Property • Personal Care • Health Care is the major area of Personal Decision Making Advocacy Centre for the Elderly 2010

11. What are Decisions about Property? • Managing money day to day • Paying bills • Banking • Buying a house • Investing Advocacy Centre for the Elderly 2010

12. What are Decisions about Personal Care? • Shelter • Nutrition • Hygiene • Safety • Clothing • Health care Advocacy Centre for the Elderly 2010

13. What are Health Care Decisions? • Treatment • Admission to Long term Care • Personal Assistance Services Advocacy Centre for the Elderly 2010

14. Who Decides? • You decide for yourself if MENTALLY CAPABLE • Your Substitute Decision Maker (SDM) if you are NOT mentally capable Advocacy Centre for the Elderly 2010

15. Mental Capacity • Mental Capacity is a socio-legal construct and its meaning varies over time and across jurisdictions • Assessment / evaluation refers to a legal assessment not a clinical assessment • Clinical assessments underlie diagnosis, treatment recommendations and identify or mobilize social supports • Legal assessments remove from the person the right to make autonomous decisions in specified areas Advocacy Centre for the Elderly 2010

16. Mental Capacity • Not the score on the Mini Mental Status Exam or any other test • Not a Diagnosis Advocacy Centre for the Elderly 2010

17. What does it mean to be Mentally Capable? • Capacity is related to a particular decision • You can be capable for some purposes and incapable for others • You can be incapable to manage property/ money but capable for health decisions Advocacy Centre for the Elderly 2010

18. What does it mean to be Mentally Capable? • To be Mentally Capable means that you have the ability to understand information relevant to making the decision and the ability to appreciate the consequences of making a decision or not making a decision Advocacy Centre for the Elderly 2010

19. Incapacity to Manage Property • SDA S.6 incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Advocacy Centre for the Elderly 2010

20. Incapacity for Personal Care • SDA S. 45 a person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Advocacy Centre for the Elderly 2010

21. Capacity in respect to Treatment, Admission to Care Facilities, and Personal Assistance Services • HCCA s.4Able 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 reasonable foreseeable consequences of a decision or lack of decision. Advocacy Centre for the Elderly 2010

22. Presumption of Capacity • HCCA s.4Person presumed to be capable for treatment, admission to care facilities and personal assistance services.EXCEPTIONPerson entitled to rely on presumption unless he or she has reasonable grounds to believe the other person is incapable in respect to treatment, admission to care facilities, personal assistance services as case may be Advocacy Centre for the Elderly 2010

23. Capacity Capacity is a cognitive test - not a functional test. Indicators are: • Understand (factual knowledge + problem solving ability) • Appreciate (realistic appraisal of outcome + justification of choice) Advocacy Centre for the Elderly 2010

24. Understand - 1st Base • Factual knowledge: preservation of old skills & knowledge • Has the person had learning opportunities to acquire the relevant facts: • Updated information re: medical status, new risks or limits in ADL functions? • What does a "nursing home" mean to the person - has s/he ever visited one; what benefits might it offer: what risks? Advocacy Centre for the Elderly 2010

25. Understanding Options - 2nd Base • Able to comprehend information about options, risks to make an informed choice • Able to attend to relevant stimuli, understand at conceptual level and retain essential information long enough to reach a decision • Able to remember prior choices and express them in a predictable and consistent manner over time • Able to problem solve around personal issues-probe specific example Advocacy Centre for the Elderly 2010

26. Appreciate - 3rd Base • Able to appraise potential outcomes of a decision • Focus on reasoning process, explore the personal weights, values attached to each outcome • Acknowledges personal limitations/show insight • Decision-making is reality-based, not being affected by delusions (fixed false beliefs) or skewed by emotional states (depression, hopelessness causing an undervaluing of survivalissues) Advocacy Centre for the Elderly 2010

27. Appreciate - 4th Base Justification of choice: • Shows evidence of rational (based in reality) manipulation of information - a "reasoned choice", not necessarily a reasonable choice • Grounded in personal beliefs and values consistent with previous actions, expressed wishes, cultural or religious beliefs Advocacy Centre for the Elderly 2010

28. Questions ? • Any questions on • decision making, • the definition of mental capacity, or • how mental capacity is assessed? Advocacy Centre for the Elderly 2010

29. Who decides on whether you are Capable or not? • It depends on the type of decision and whether the law requires a particular person to assess capacity for a particular purpose • To do a POA – it’s the person assisting you to create the document and the witnesses that should be able to say that you are mentally capable Advocacy Centre for the Elderly 2010

30. Who Assesses Capacity? • Sometimes defined by Statute ( ie Capacity Assessors for capacity to manage property to trigger a Statutory Guardianship, Health practitioners for treatment, Evaluators for Capacity for Admission) • Sometimes in common law ( ie contracts) • Sometimes a variety of persons can provide opinions or evidence as to incapacity ( ie “defense” assessments) • SEE CHART on ACE website at www.acelaw.ca Advocacy Centre for the Elderly 2010

31. When “Capacity Assessors” are Required to assess Capacity • “Capacity Assessors” are a special kind of assessor that must be used to • assess capacity to manage property when you have not prepared a POA property and become incapable and need a Statutory Guardian • To trigger a POA Property to come into effect if the POA Property document requires such an assessment by a capacity assessor OR when the POA Property document states that it doesn’t come into effect until a finding of incapacity and no method of assessment is specified in the document Advocacy Centre for the Elderly 2010

32. Definition of Capacity Assessor • SDA s. 1(1)“assessor” means a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity. Advocacy Centre for the Elderly 2010

33. Capacity Assessors O.Reg.460/05 • S.2 (1) A person is qualified to do assessments if he or she,a) satisfies one of the conditions set out in ss.(2) (Member of particular College) ;b) has successfully completed the Qualifying course described in s.4c) complies with s.5 (continuing education)d) complies with s.6 (minimum annual number of assessments) e) is covered by professional liability insurance of not less than $1,000,000... Advocacy Centre for the Elderly 2010

34. Capacity Assessors O.Reg.460/05 • S.2 (2) is a member of one of the following Colleges.a) College of Physicians & Surgeons of Ontario.b) College of Psychologists of Ontario.c) Ontario College of Social Workers & Social Service Workers and holds a certificate of registration for social work.d) College of Occupational Therapists of Ontario.e) College of Nurses of Ontario. Advocacy Centre for the Elderly 2010

35. Right to Refuse an Assessment • SDA s. 78(1) An assessor shall not perform an assessment of a person’s capacity if the person refuses to be assessed. (2) Before performing an assessment of capacity, the assessor shall explain to the person to be assessed, (a) the purpose of the assessment (b) the significance and effect of a finding of capacity or incapacity; and (c) the person’s right to refuse to be assessed..(3) subsections (1) and (2) do not apply to an assessment if, (a) assessment ordered by the court under s. 79; or (b) a power of attorney for personal care contains a provision that authorizes the use of force to permit the assessment and the provision is effective under subsection 50(1). Advocacy Centre for the Elderly 2010

36. Who decides on whether you are Capable or not for Health Decisions ? • For Health Treatment decisions, it’s the Health practitioner offering you the treatment (the doctor, the nurse, etc) who must determine if you are mentally capable to consent or refuse consent to the treatment • The health practitioner that finds you incapable for a treatment decision must advise you that he or she has made this finding and will be turning to your SDM for treatment decision for you • The health practitioner must also advise you that you have a right to challenge this finding of incapacity by making an application to the Consent and Capacity Board Advocacy Centre for the Elderly 2010

37. Who decides if you are Capable or not to make decisions about Admission to a Long Term Care Home? • For Admission decisions it is an EVALUATOR who must determine if you are mentally capable to consent or refuse consent to admission • The Evaluator that finds you incapable for an admission decision must advise you that he or she has made this finding and will be turning to your SDM for admission decisions for you • The evaluator must also advise you that you have a right to challenge this finding of incapacity by making an application to the Consent and Capacity Board Advocacy Centre for the Elderly 2010

38. Definition of Evaluator • HCCA s. 2(1)A person described in clause (a), (l), (m), (o), (p), or (q) of the definition of the Health Practitioner or a member of a category of persons prescribed by the regulations as evaluators. Advocacy Centre for the Elderly 2010

39. Definition of Evaluator (cont’d) Members of College of:(a) Audiologist & Speech Language Pathologists(l) Nurses(m) Occupation Therapists(o) Physicians & Surgeons(p) Physiotherapists(q) PsychologistsPrescribed by Regulations - social workers (Member of the Ontario College of Social Workers and Social Service Workers who holds a certificate of registration for social work) Advocacy Centre for the Elderly 2010

40. Questions? • Any questions about who assesses mental capacity for a particular purpose? Advocacy Centre for the Elderly 2010

41. Who is your SDM for Property if you are not mentally capable for property decisions? • Someone you, when you are still mentally capable, choose as an “attorney” in a POA Property • When you become incapable • A Statutory Guardian for Property • A Court Ordered Guardian of Property • A Trustee appointed under the OAS or CPP legislation Advocacy Centre for the Elderly 2010

42. Who is your SDM if you become incapable for Personal Care? • Someone you choose in a POA Personal Care • A Court Ordered Guardian of the Person • For health decisions – the person or persons highest ranking in the hierarchy of SDMs in the Health Care Consent Act Advocacy Centre for the Elderly 2010

43. Who is your SDM if you are not mentally capable to make Health Decisions? • You ALWAYS have an SDM for Health Care even if you have not done a POA Personal Care • Your SDM is the person HIGHEST on the list of SDMs in the Health Care Consent Act Advocacy Centre for the Elderly 2010

44. List of SDMs for Health Care • Court Ordered Guardian of the Person • Attorney in a Power of Attorney for Personal care • Representative ( person appointed by the Consent and Capacity Board) • Your spouse or partner • Your Child or parent • Your Brothers or sisters • Any of your other relatives • The Public Guardian and Trustee Advocacy Centre for the Elderly 2010

45. Requirements for Person to be an SDM for Health Care Person highest in hierarchy may give or refuse consent only if he or she: a) is capable in respect to the treatment b) is at least 16 years old unless the parent of the incapable person c) is not prohibited by a court order or separation agreement from acting as SDM d) is available e) is willing to act as SDM Advocacy Centre for the Elderly 2010 45

46. List of SDMs for Health Care • If you have more than one person in the same category that is available to act for you as SDM, then all of them must act together and agree or they may pick one of the group to act for you – so if you have three children all three may act for you or they must choose which one will act for you – THEY must agree in some way as to what the decision is for you and how many of them are “active” in the decision making. Health providers cannot pick which of them that may act for you Advocacy Centre for the Elderly 2010

47. Definition of Spouse Two persons (same sex or opposite sex) who are (a) married to each other; or(b) living common law and, i) have cohabited for at least one year, orii) are together the parents of a child, oriii) have together entered into a cohabitation agreement under s. 53 of the Family Law Act.Not spouses if living separate and apart as a result of a breakdown of their relationship. Advocacy Centre for the Elderly 2010

48. Definitions • PARTNERTwo persons who have lived for at least one year and have a close personal relationship that is of primary importance in both person’s lives • RELATIVEPeople are relatives if related by blood, marriage or adoption Advocacy Centre for the Elderly 2010

49. Summary**** • Capable people make their own decisions • “Mental Capacity” is a legal definition not a diagnosis • The law defines WHO assesses capacity for different purposes • While capable, a person may prepare POAS to appoint someone to be their future SDM • If incapable, everyone automatically has an SDM for health care even if they didn’t do a POA because of the HCCA • If person incapable, someone else would have to DO something to become the SDM for property of that person if that person had not done a POA property while capable Advocacy Centre for the Elderly 2010

50. Questions? • Any Questions on any part of this webinar? Advocacy Centre for the Elderly 2010