Capacity to make treatment decisions in the Health Care Consent Act (HCCA)[i] refers to an intact ability to understand information that is relevant to making a decision to a proposed intervention and equally important the ability to appreciate the reasonably foreseeable consequences of a decision or a lack of decision. In order to be capable, an individual must satisfy both parts of the definition. Informed consent for a proposed treatment requires the following:

• no treatment without consent
• consent relates to the treatment proposed
• consent is informed and thus dependent on the person proposing the treatment disclosing the relevant facts
• consent is given voluntarily
• consent is not obtained through fraud or misinterpretation

Capacity to consent to treatment requires the person to be able to communicate a choice (verbally or through symbols or gestures) and to show reasoning about treatment choices.[ii] Cognitive tests are not substitutes for an assessment of capacity. Evaluation of the ability to understand information relevant to making a decision about a proposed treatment refers to ability to grasp and retain the meaning of information required to express an informed choice. For treatment this includes the nature of the condition and its manifestations, the nature and purpose of the proposed treatment, the alternative approaches, the option of no treatment, and the possible benefits and risks of all options. Evaluation of the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision refers to the ability to rationally manipulate the information provided, appraise it in a reality-grounded fashion and evaluate the risks and benefits attached to one outcome or another.[iii] The ultimate issue of capacity is not whether a person’s decision appears reasonable or will put the person at increased risk. It is the person’s decision-making process that is at issue and not the actual final decision.

The HCCA has no age criteria defining capacity. In the HCCA, all children and seniors are presumed to have intact capacity unless shown otherwise. This is in keeping with the fundamental principle that in a democracy the vast majority of persons are presumed capable of making their own decisions. A lack of presumption of capacity would violate basic human rights and the fundamental right of self-determination. However, age limitations are imposed on decision making freedom in other areas of law. For example, in Ontario, capacity to consent to sexual activity is attained at age 16, to vote at age 18, and to drink alcohol at age 19. Nevertheless, a child of any age is presumed capable to consent to treatment.

In the HCCA, the mechanism for declaration of incapacity requires the healthcare practitioner proposing the treatment to notify the patient of the finding of incapacity and of the right of appeal prior to seeking substitute consent from the hierarchal list of substitute decision makers described by the HCCA. In contrast to the Mental Health Act[iv] (MHA), there is no form for notification in writing of the finding of incapacity and no rights advice provided by a Rights Advisor who, under the MHA, may also assist the patient to request an appeal with the Consent and Capacity Board (CCB).

In my clinical experience, two scenarios are common. First, the consent provided for medical treatment is not informed but rather is unquestioned assent justified by the presumption of capacity as long as the patient complies with the proposed treatment. Second, consent is obtained from a substitute decision-maker without the due process of the physician informing the patient of the finding of incapacity and of the right of appeal prior to commencing non-emergency treatment. I anticipate the same is often true in pediatric clinical environments.

It can be assumed in children that the younger the child, the less likely the intellect has developed sufficiently to permit intact decision making capacity. Similarly, in seniors, with increasing age lies increased risk of age-related neurocognitive diseases causing cognition to worsen and the probability increases that a person has loss of decision making capacity.[v]

I propose the HCCA be amended to introduce a minimum age for consent for children. I am not an expert in childhood development so I offer no scientific evidence-based age recommendation. I do know that according to Jewish law, 13 year old boys and 12 year old girls become accountable for their actions and become a bar or bat mitzvah respectively (son or daughter of the commandments), meaning they have the capacity for free will to choose to perform the commandments or not. This seems to me a reasonably analogous decision-making process requiring ability to understand and ability to appreciate.

I propose for seniors that the HCCA be amended to remove the presumption of capacity for those ages 75 and up; thus requiring evaluation of capacity by the healthcare practitioner proposing an intervention to be documented as part of the clinical record. Similar mandates to prove capacity with aging exist in other areas of law. In Ontario, once drivers reach 80 years of age, and every two years subsequently, drivers must prove their capacity by taking a vision test, undergo a driver record review, participate in a 45-minute Group Education Session during which they must complete two brief, non-computerized, in-class screening assignments and if necessary, take a road test.[vi]

In my clinical opinion, the lack of age criteria in the HCCA, although sound in principle, is flawed in practice and would benefit from amendments as proposed.

[i] Health Care Consent Act, 1996, SO 1996, <https://canlii.ca/t/kvc1> retrieved on 2015-07-16

[ii] Appelbaum, P. S. (2007). Assessment of patients’ competence to consent to treatment. New England Journal of Medicine, 357(18), 1834-1840.

[iii] Guidelines for Conducting Assessments of Capacity. (2005). Capacity Assessment Office, Ministry of the Attorney General, Ontario. https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-06/guide-0505.pdf

[iv] Mental Health Act, RSO 1990, c M.7, <https://canlii.ca/t/ksnp> retrieved on 2015-08-13

[v] Raymont, V., Bingley, W., Buchanan, A., David, A. S., Hayward, P., Wessely, S., & Hotopf, M. (2004). Prevalence of mental incapacity in medical inpatients and associated risk factors: cross-sectional study. The Lancet, 364(9443), 1421-1427.

[vi] https://www.mto.gov.on.ca/english/driver/senior-driver-licence-renewal-program.shtml retrieved on 2017-09-26