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Adopting Decision-Making Capacity Leads to Controversy

Michel Silberfeld, MD, MSc, CRCP(C)

Coordinator, Competency Clinic, Department of Psychiatry
Baycrest Centre for Geriatric Care. North York, Ontario

In Ontario, as in some other provinces, there was a push to modernize guardianship and consent legislation, which culminated in new statutes in 1992. The motivations for new legislation came from several directions. The Ontario Mental Incompetency Act was felt to be outdated because it only permitted plenary guardianship. Plenary guardianship gives a person authority over all decision-making, much like a parent has over a small child. Furthermore, incapacity was poorly defined, based primarily on evidence as to the severity of an illness, and a person deemed incapable had to be incapable in all respects. There were no provisions for Powers of Attorney for personal care.

Several policy initiatives came from patient rights advocates. There was a desire to promote patient autonomy. This was accomplished by clarifying the definitions of capacity in statutes. The new definitions permitted the recognition of partial competence whereby a person could be incapable in one respect and yet retain the right of discretion in all others. The acceptance of partial competence also permitted earlier intervention because the person did not have to be incapable in all respects to obtain a guardian. This met the policy objective of having a way to intervene in the community to assist incapable persons so as to delay institutionalization. The new legislation also made clear how a person could appeal a finding of incapacity, how long a finding of incapacity would last, and how a person could be restored to capacity once they recovered. The consent legislation also limited incapacity to a treatment and made incapacity limited to the time the treatment is proposed. By making consent 'omnibus,' the legislation widened the obligations to obtain consent to include many health care providers beyond physicians, and covered health care acts outside hospital settings. The discretionary authority of health care providers, except in an emergency, was removed so that all substitute decisions were made by designated parties. The definition of capacity was crucial to the success of the legislative package.

Decision-making capacity was recommended by the Weisstub Inquiry on Mental Competence. Decision-making capacity is, "The ability to make an acceptable informed choice with respect to a specific decision." The emphasis in this definition is on the functional ability to make the choice at hand. It is a retreat from a reliance on the presence of a disability alone as sufficient to indicate incapacity. Disease and disability may explain the reason for incapacity, but the person must be examined on their performance in making a specific decision. The evaluation of capacity requires a knowledge of the principles of decision-making and assessment of preferences and values. The statutory definitions of the various capacities follow the same 'boilerplate' pattern: a person is capable with respect to a specific capacity if they understand the relevant information to make a decision and appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Decision-making capacity has advantages and disadvantages. The advantages of a narrowly-defined capacity are that it permits the preservation of autonomy in all other areas of decision-making. Unless there is evidence to trigger an assessment, other areas of capacity are not examined. This permits the courts to restrict the authority of guardians to one area of decision-making, say finances, while the patient preserves discretionary authority for their personal care. In some instances a restricted definition of capacity will permit earlier intervention because the person need not be broadly incapable. For some patients with chronic deteriorating illnesses it may create a window of opportunity