This post is part of a series on financial capacity assessment and teaching.
In my post on the legal context of financial capacity assessments in Ontario, I mentioned Weisstub 1990, Enquiry on Mental Competency: Final Report. It’s an interesting report to read. I don’t know enough of the historical and legal history of Ontario’s mental health laws to know the extent to which it shaped the laws or merely reflects some of the thinking I see echoed in the legislation and other writing (see the footnote in my last post).
In any case, I want to expand on the report’s “proposed assessment protocol” (pg 232) for mental capacity assessments (of all kinds) because I think it’s a useful construct to have in mind when thinking about assessing financial capacity.
Here are the sequence of proposed steps:
Step 1: A threshold test
This test is a “a preliminary determination that the individual’s capacity is in doubt“. Because capacity is presumed, and in order to protect a person’s autonomy, a formal capacity assessment should not be completed without some indication of a threat to capacity in the first place. That’s the threshold test. It helps us side-step the chicken-or-the-egg problem of not having to assess capacity in order to know when capacity is threatened.
What precisely are these “indications” of a threat to capacity then? In medical decision making they could come up during a treatment consent discussion. For instance, a patient who can’t remember what treatment options have been presented are despite talking about them only moments before indicates a possible problem with recall that might impact decision making capacity. The Weisstub report includes both an “act suggestive of incapacity or the occurrence of a defined event” would meet the threshold test. The universe of other acts and events that could qualify as indications for incapacity are left up to clinical judgment for the most part.
Notably, the report suggests that a psychiatric admission itself should prompt further assessment of financial capacity, treatment capacity, and capacity to appoint an SDM. The mandatory financial capacity assessment on admission that is baked into Ontario’s Mental Health Act reflects this thinking.
Using “defined events” as a threshold test for capacity is not generally reflected in the approach to capacity I’ve seen elsewhere in medicine. For instance, for medical decision-making we use our “informed consent” discussions as a place where clues to a person’s incapacity can arise, as described earlier. Also, we might be alerted when there is a change in the pattern of decisions made by a person (e.g. they’ve always wanted treatment X but suddenly they don’t), or their mental status is off (.e.g. level of consciousness). Ultimately, our threshold test for medical decisions is the condition of offering a medical treatment, not admission to the hospital as it is with financial capacity.1
Step 2: The screening test
Before a full blown formal assessment of capacity is done, the reports recommends a screening test to determine if there are general kinds of problems in a persons thinking that are suggestive of incapacity.
The report suggests a screening cognitive test (in particular the MMSE) along with “questions to reflect the specific requirements of the particular decision”. For example:
- “What is the decision you are being asked to make?”
- “Why do you have to make this decision, and what choices do you have?”
- “Can you tell me the advantages and disadvantages of each choice?”
These are broad questions aimed at eliciting problems in understanding and appreciation. A person who answers these questions well (whatever that means) very likely has decisional capacity. The person who does not answer well needs further consideration. The MMSE is also very broad screen — it is an integration test of a variety of very basic cognitive capacities. Doing well on the MMSE certainly does not guarantee decisional capacity, but doing poorly certainly raises questions.
The Weistub report does not offer much guidance for a screening test for financial capacity, but does include a list of questions submitted to the enquiry by “Dr. F. M. Mai of the University of Ottawa” (pg 266):
- Does the patient suffer from delusions or hallucinations which specifically concern his finances?
- Is the patient oriented to time, place and person?
- Is the patient’s memory sufficiently intact to keep track of financial transactions and decisions?
- Is the patient’s calculating ability sufficient to balance his accounts and pay bills?
- Is the patient’s judgment impaired with respect to financial decisions?
- If the patient has extensive investments, is his general knowledge sufficient for him to be aware of what is happening in the financial market?
I’ve seen these quoted in CCB hearings on financial capacity assessments, and they appear in the Practical Guide also. It’s interesting to note that unlike the other screening tests above, these are questions for the assessor and not the person. That fact, and the abstractness of the questions makes them less useful as a operational screening test, in my opinion.
Step 3: Formal capacity assessment.
At this stage, a fulsome capacity assessment is suggested using whatever approach is “appropriate under the circumstances” to determine the capacity to understand and appreciate the decision being considered. The report does not say what assessment tools should be used specifically. It does recommend that as part of the process a person should be informed of their rights, the assessor should be qualified, and reasonable efforts should be made to support a person’s capacity (e.g. they should be well informed, have whatever tools and supports made available) during the assessment.
Notably, the report recommends the formal assessment should be aborted if it turns out the decision does not have a “significant impact” on the person. For finances, a decision with significant impact is “when it puts a substantial percentage of the individual’s net worth at risk in situations involving financial matters” (pg 240). If the significant impact test is not met, then the person should be seen as effectively capable, and left alone to make their own choice.
Step 4: Review board and the courts
Bring questions of capacity (certainly if a person contests a finding of incapacity) to a review board or court is seen as an essential part in the assessment protocol.
I quite like this protocol for a few reasons. First, it structures much of the assessment process as a series of increasingly complex tests (of the kind so often seen in the legal world) which need to be passed in order to proceed. This protects the person being assessed from undue intrusion and threat to their autonomy, and saves the assessor from undue work. Second, like any formalised process, it gives us all something concrete to work with. As we’ve seen, capacity assessment is an abstract concept with various approaches, and the law does not provide much in the way of direction, so any attempt to boil down the job of capacity assessment is helpful.
However, the Weisstub protocol itself is too underspecified to be operationalised as it stands. What actions or events make up a threshold test? What should be asked on screening? What are the elements of a good formal capacity assessment? It provides a schema but needs more structure…
- If the requirement to assess financial capacity in Ontario “forthwith” on admission under the Mental Health Act bothers you, you’re in good company. The Law Commission of Ontario’s report on legal capacity critiques this and other aspects of the legal framework. ↩︎
