Evaluation of decision-making capacity is inherent to the practice of law and medicine and is not the exclusive responsibility or expertise of either. Lawyers may need to assess (among other things) capacity to instruct counsel; to provide evidence; to stand trial; to appoint or revoke Powers of Attorney; to make a contract, a gift, or execute a will; to marry, divorce and/or reconcile. In healthcare, clinicians are confronted mostly with capacity to consent to treatment under the Healthcare Consent Act. Psychiatrists in hospitals are mandated by the Mental Health Act to evaluate capacity to manage property for psychiatric inpatients who do not have a power of attorney for property. However, for the remainder of hospitalized patients and all outpatients who do not have a power of attorney for property, the evaluation of capacity to manage property falls under the Substitute Decisions Act (the “SDA”).
The SDA requires a qualified assessor, not a physician, to perform the evaluation. In Ontario, Assessors of the Ministry of the Attorney General (which may be a qualified nurse, social worker, occupational therapist, psychologist, or doctor) assess capacity to manage property and personal care mainly for the purposes of statutory guardianship by the Office of the Public Guardian & Trustee. Nonetheless, physicians are often called upon to provide a clinical opinion about capacity to manage property when there is a dispute between a patient and a previously appointed attorney for property or for a guardianship application. When it comes to testamentary capacity, there is no formally designated clinical assessor, and any of the above could provide an opinion.
In the medical literature, the valued role of the medical expert has been acknowledged for guidance in assisting the legal evaluation of testamentary capacity, both for contemporaneous[i] and retrospective assessments.[ii] The value of “hot tubbing” by medical experts (i.e. discussions between multiple experts) to assist in the retrospective determination of testamentary capacity has also recently been encouraged by the Court.[iii]
The interdisciplinary nature of decision-making capacity evaluation suggests there will be variability in training, experience, expertise, and philosophy. Between professionals, there may be differences in approach, terminologies and acceptable thresholds used in assessing decision-making capacity, particularly in seniors with mild to moderate cognitive impairment and those with a mental health condition. Variability in assessors leads to potential unreliability between assessments. Further contributing to the potential unreliability is the lack of a gold standard test and variability in how even standardized assessments may be performed.
The potential for unreliability is why there will always be a risk of disagreement in the outcome of a decision-making capacity evaluation. Therefore, there is a need for interdisciplinary collaboration to reduce variance and develop a better standard of care via practice, education and research for health and estate law planning documents/related processes (capacity assessments, substitute decision making and dispute resolution).
With a goal to move the field forward, I will now be doing my medical-legal capacity evaluation consulting work as Medical Director of The Capacity Clinic to provide both retrospective and contemporaneous capacity assessments where an expert opinion is requested, performed either virtually or by outreach visit to the person’s location. Assessments will also be available by qualified assessors of the Ministry of the Attorney General for expert opinion requests under my supervision, not for assessments requiring statutory guardianship by the Office of the Public Guardian and Trustee, as supervision of those assessments is the responsibility of the Capacity Assessment office through the Ministry of the Attorney General. Dispute resolution and litigation mitigation via interdisciplinary medical-legal collaboration will also be available. The Capacity Clinic will have its own administrative and technical support to improve efficiency and accessibility independent of any health care organization. Educational and research initiatives will be a priority for development as well.
[i] Robin Jacoby, Peter Steer. How to assess capacity to make a will BMJ 2007; 335: 155-7.
[ii] Kenneth Shulman, Nathan Herrmann, Hayley Peglar, Daniel Dochylo, Clare Burns, Carmelle Peisah. The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity. The Canadian Journal of Psychiatry, 2020.
[iii] Kates Estate (2020 ONSC).