A Question of Capacity

By William R. Walters

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When thinking about health, thoughts will typically turn either to maintaining or improving it on the one hand, and fixing or remedying it on the other. A central issue that can arise, however, is whether an individual can make decisions about these issues at all. In legal terms, this issue is referred to as capacity. Determining whether an individual has the capacity to make decisions is a complex process, and while medical assessment and opinion are often important factors in this process, the determination of capacity is ultimately a legal one.

Capacity is measured in relation to the decision to be made. For purposes of discussion, decisions affecting health may be usefully divided into two groups: health-care decisions and personal care decisions.

Health Care Decisions

An individual’s consent must be obtained before virtually any kind of health care is provided. The law presumes that an individual has capacity to give or refuse this consent. In British Columbia, the Health Care (Consent) and Care Facility (Admission) Act (the “Act”) has codified the law in this area. The Act not only confirms the presumption of capacity and the necessity of obtaining an individual’s consent to health care, but also sets out a standard and test for capacity; defines health care; and sets out a process for decision making for individuals who lack capacity but are in need of health care.

The capacity to give or refuse consent to health care is assessed by determining whether the individual understands:

  1. the information a reasonable person would require to understand the proposed health care and to make a decision; and
  2. that the information applies to the situation of the adult for whom the health care is proposed.

Health care is anything done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and is classified as either minor health care, such as routine tests to determine if health care is necessary, or major health care, such as surgery or any treatment involving a general anesthetic. Individuals who do not satisfy the capacity test set out above are effectively in limbo with regard to decisions about almost any kind of health care.

To address this situation, the Act provides for the appointment of a Temporary Substitute Decision Maker (the “TSDM”) from a prescribed list of people. First in line is a person’s spouse, then adult children, parents, brothers and sisters, and finally anyone else related by birth or adoption. The appointment lasts 21 days and gives authority to the TSDM to make health-care decisions generally. Although the appointment of a TSDM is arguably renewable, this arrangement is less than ideal where a person’s incapacity is likely to continue for a length of time. A further disadvantage is that the choice of TSDM is arbitrary and may place the power to consent in the hands of an individual one would not otherwise have chosen.

One solution to this problem is for someone to apply to court to be appointed the individual’s Committee. A Committee is, in effect, a guardian appointed to make decisions for an incapacitated individual. Major drawbacks of this solution include the delay and expense of preparing and submitting to court the necessary application, especially where it is contested.

Personal Care Decisions

Personal care is not defined by statute in the same way as health care, but here refers to decisions about an individual’s diet, dress, accommodation and social relationships, so far as these do not fall within the definition of health care set out in the Act. Again, the law presumes an individual to have capacity to make such decisions. Unlike health-care decisions that require doctors and others to give effect to them, an individual who lacks capacity nonetheless may carry out personal care decisions without or with limited assistance. For example, a person may give effect to choices about dress or accommodation that are socially unacceptable, personally detrimental or potentially harmful to themselves or others. Where such decisions put the individual or others at serious risk, authorities may apply for a care and protection order under the Adult Guardianship Act. Another possibility is that concerned family members or others may apply for committeeship of the person concerned as discussed above.

Planning Ahead

Individuals wanting greater control over decisions made about their health during a period of incapacity can do so by a number of means. The simplest and most comprehensive method, however, is by executing a Representation Agreement in which one or more people agree to serve as one’s Representative during a period of incapacity. The Representative can make virtually any personal or health-care decision on one’s behalf, including end-of-life decisions in circumstances where a substantially incapable person has no hope of recovery and can only be kept alive by artificial means.

Increasingly, people recognize that good health can be maintained well into old age, even indefinitely, so long as informed decisions about personal and health care are made and acted on. Diminished capacity need not result in this process stopping; by planning, one can greatly increase the odds that one’s health, and with it one’s quality of life, will not deteriorate more than necessary even when one is incapable.

This article is informational only. To answer questions relevant to your situation, consult your legal professional.



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