Capacity assessments regarding capacity to manage property, testamentary capacity or capacity to appoint a power of attorney for property (POA), whether conducted contemporaneously or retrospectively, rely upon whatever materials/information that is provided to an assessor to review. Materials may include relevant medical records, previous wills and POA documents, interview of the person if done contemporaneously or videos and/or audio recordings of the deceased if retrospective, and affidavits within legal briefs. In contrast to a typical clinical assessment for the purposes of diagnosis and treatment, conducting an informant interview with a family member for corroborative information may be more problematic then beneficial.

In Re Koch,[i] a Consent and Capacity Board’s finding of incapacity to manage property under the Substitute Decisions Act was set aside on appeal by Justice Quinn who wrote that — any procedure by which a person’s legal status can be altered must be cloaked with appropriate safeguards and capable of withstanding rigorous review … and that an … Assessor should be alive to the presence of improper motives in proceedings concerning capacity to manage property and financial affairs particularly by those who seek to have another found to be without mental capacity. The assessor/evaluator must be alive to an informant harbouring improper motives.

In my medical-legal practice when retained by a lawyer to assess their client or provide a retrospective opinion, I typically do not interview family members except in exceptional cases contemporaneously where the person is obviously significantly impaired and cannot provide a reliable history. For Court ordered assessments, I offer to interview family members from both opposing sides, but overall I place little to no importance on lay evidence from informant interviews or affidavits in my medical-legal reports. My concern is that as seen in Re Koch, the informant’s testimony may be biased by the legal outcome the informant is hoping for. The Court is the examiner of facts and can best evaluate the lay evidence and testimony. As a medical expert, I can best assist the Court with evaluation of the medical evidence as it relates to the case, something the Court is not sufficiently skilled to do.

The evaluation of decision-making capacity is open to biases within the assessor as well as within the informant. In the practice of Geriatric Psychiatry we often have conflict between two basic principles of medical ethics: autonomy – representing the right to independent decision-making, and beneficence – representing the responsibility to act in best interests for someone. In Re Koch, Justice Quinn also wrote about the confusion of “best interests” and “cognitive capacity” and that assessors must not confuse their view of the best interests of the appellant with the state of the appellant’s cognitive capacity. The former, no matter how well intentioned, is irrelevant, he wrote.

To expand on Justice Quinn’s comments, I suggest there perhaps lies an underlying conscious or even unconscious bias within assessors that may require consideration, which I will refer to as individual professional “Hashkafa.” In Hebrew, this means outlook and guiding philosophy that defines one’s worldview. Where one stands philosophically between the tensions of respect for autonomy vs. the duty to beneficence may be a bias that behooves an assessor to be aware of one’s own determinates of decision-making prior to opining about the decision-making process of others.

[i] Koch (Re), 1997 CanLII 12138 (ON SC)