This post is part of a series on financial capacity assessment and teaching.
I am no lawyer, yet as a psychiatrist-in-training I am required to think about, and operate within, a legal context. However the medical profession might conceptualize capacity (hint: it does so using Applebaum’s construct of decisional capacity), it is also a legal construct that requires a legal assessment. In this post, I’d like to highlight some bits of legal context that matter not only for the assessment itself, but also for determining when an assessment should be done and who should do it. I’m going to focus on what is relevant for a psychiatrist, and leave out many of the procedural aspects for now.1
When it comes specifically to financial capacity assessment there are two pieces of Ontario legislation typically cited:
Substitute Decisions Act, 1992, S.O. 1992, c. 30
Incapacity to manage property
6 A person is 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.
Mental Health Act, R.S.O. 1990, c. M.7
Examination on admission to determine capacity
54 (1) Forthwith on a patient’s admission to a psychiatric facility, a physician shall examine him or her to determine whether the patient is capable of managing property. 1992, c. 32, s. 20 (41).Examination at other times
(2) A patient’s attending physician may examine him or her at any time to determine whether the patient is capable of managing property. 1992, c. 32, s. 20 (41).Exception
(6) This section does not apply if,
(a) the patient’s property is under guardianship under the Substitute Decisions Act, 1992; or
(b) the physician believes on reasonable grounds that the patient has a continuing power of attorney under that Act that provides for the management of the patient’s property. 2001, c. 9, Sched. B, s. 9.Examination before discharge to determine capacity
57 (1) Within twenty-one days before the discharge from the psychiatric facility of a patient with respect to whom a certificate of incapacity has been issued, the attending physician shall examine him or her to determine whether the patient is capable of managing property. 1992, c. 32, s. 20 (43).
Some things to notice2:
There are two pieces of legislation that overlap in scope: the SDA applies broadly to individuals whether they are in the community or admitted to the hospital, and concerns itself with various kinds of capacity (financial, and personal care); whereas the MHA applies only to patients admitted to a hospital under the mental health act (i.e. in an designated psychiatric hospital), and does not discuss capacity for personal care. There can be times when both pieces of legislation apply, and it is often confusing for all involved.
Financial capacity assessments are required for everyone on admission under the MHA. Typically, when it comes to capacity, we presume an individual’s capacity to make a decision unless we have reason to doubt it — i.e. if it becomes apparent during the course of the consenting process that a patient may not be understanding or appreciating the consequences of their decision, we then conduct a formal capacity assessment. The logic behind presuming capacity is, in part, because the capacity assessment itself is arduous and invasive — we respect a person’s autonomy with our presumption of capacity. But, it’s never supposed to be a blind presumption: the consenting process should be done in such a way as to screen for capacity along the way; that is, we presume but verify. In Weisstub 1990, Enquiry on Mental Competency: Final Report (cited in Starson v. Swayze), this requirement to presume capacity unless some sentinel act or event happens that raises doubt about a person’s capacity is called a threshold test.
Under the MHA, financial capacity assessments are done regardless of whether a person’s capacity is apparently compromised or not — the threshold test is satisfied by there admission alone. Presumably, the MHA is designed this way out of a concern to protect a psychiatric patient who might be incapable due to some derangement in their thinking. And yet, this same concern does not extend to non-psychiatric patients. There is no similar mechanism for patients with other medical problems likely impacting their thinking (e.g. a patient with a stroke, or delirium). I will discuss this bias more in a future post.
General, not specific, financial capacity is to be assessed. One the tenets of the Applebaum model of decisional capacity is that capacity is decision-specific: a person may capacity for one decision (e.g. whether to take their blood pressure pill) but not another (e.g. whether to have their leg amputated). And yet, in the MHA the wording is that a physician needs to determine a person’s capacity for “managing property”. It’s not written as “management of his or her property” as it is in the SDA. Regardless, in both cases, there are no specific decisions listed for which capacity should be assessed. It is left acutely abstract, and hand-wavy. There are a universe of potential financial decisions that could be assessed. This is a source of deep problems when it comes assessing capacity in practice, and why the Ontario Capacity Assessment Office’s Guidelines for conducting assessments of capacity burns so many words on topic. Perhaps it has to be so, since the very idea of financial capacity is ultimately person-specific, but the law does us no favours in not being clear.
As an example of legislation that provides more clarity, consider the regulations for BC’s Adult Guardianship Act:
Test of incapability
9 (1) An adult is incapable of managing the adult’s financial affairs if the qualified health care provider determines that any of the following apply:(a) the adult cannot understand the nature of the adult’s financial affairs, including the approximate value of the adult’s business and property and the obligations owed to the adult’s dependants, if any;
(b) the adult cannot understand the decisions that must be made or actions that must be taken for the reasonable management of the adult’s financial affairs;
(c) the adult cannot understand the risks and benefits of making or failing to make particular decisions, or taking or failing to take particular actions, in respect of the adult’s financial affairs;
(d) the adult cannot understand that the information referred to in this subsection applies to the adult;
(e) the adult cannot demonstrate that the adult is able to implement, or to direct others to implement, the decisions or actions referred to in paragraph (b).
In fact, financial capacity is not defined in the MHA. This is a subtle point but, I think, crucial. The MHA does not have a passage similar to section 6 of the SDA that outlines what financial capacity is, nor the act or regulations provide any guidance on what would be required as part of a financial capacity assessment. In practice, the SDA’s definition of financial capacity is used, and the materials used to train SDA capacity assessors are typically referenced when training psychiatrists to assess capacity under the MHA. But, it could (and maybe should) be different standards of financial capacity used on admission to a psychiatric unit versus when a person is not admitted or is admitted for a prolonged period of time. Either way, guidance is lacking.
There should be lots of opportunities for teaching financial capacity assessments. If capacity assessments are required for every admission, presumably resident doctors would have ample opportunities to practice their assessment skills. And yet, in my experience this is not so. Financial capacity assessments are rarely done on admission, and are only done when there is an obvious problem with a person’s thinking and there is an imminent concern for their financial well-being (e.g. discharge is approaching). I’ll have a lot more to say about why I think financial capacity assessments are not being done in future posts, but the point is that the law, on it’s face, provides lots of opportunities to practice and train this skill.
- For a deeper dive, see the Ontario Capacity Assessment Office’s Guidelines for conducting assessments of capacity; Judith Wahl’s 2009 Capacity and Capacity Assessment in Ontario white paper from the Advocacy Centre for the Elderly; and the OHA’s A Practical Guide to Mental Health Law in Ontario. ↩︎
- For a more thorough analysis of the problems with Ontario capacity law, see the excellent 2017 final report from the Law Commission of Ontario: Legal Capacity, decision-making and Guardianship: Final report ↩︎