Pursuant to Section 45 of the Substitute Decisions Act (SDA),[i] incapacity for personal care is defined as – A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonable foreseeable consequences of a decision or lack of decision.

In my last blog, I pointed out that Assessors of the Ministry of the Attorney General may opine under the SDA that a person is not capable to make personal care decisions for shelter but that decision provides no authority for a substitute decision-maker (SDM) to enforce a move to any destination that the patient does not agree with. I explained that only Evaluators from what is now called Home and Community Care (formally CCAC) are authorized in Ontario to determine capacity to apply for LTC. The test for capacity for that decision is found under the Health Care Consent Act (HCCA)[ii].

Another limitation is that the assessment of capacity to make health care decisions under the SDA clearly contradicts the HCCA. A guiding principle of the HCCA is that capacity is task specific. This means that under the HCCA there is no such concept as global capacity for health care decisions and that capacity is assessed for each proposed intervention or treatment. So what is the purpose of a global evaluation of capacity for personal care under the SDA?

The only reason appears to be to satisfy the requirement for a guardianship application to confirm for the court that the individual requiring guardianship is incapable of personal care. However, although the SDA stipulates that a declaration of incapacity of managing property (in a person without a continuing power of attorney for property) triggers statutory guardianship of property by the Office of the Public Guardian and Trustee, the SDA does not stipulate a consequence for a declaration of incapacity for personal care. Furthermore, my understanding is that although the SDA permits appeals to the Consent and Capacity Board (CCB) for declarations of incapacity to manage property, there is no similar appeals process for declarations of incapacity for personal care, thus limiting an individual’s right to contest a guardianship application to depending on counsel to protect their rights in court; an expensive and time consuming ordeal as compared to the much more accessible CCB.

I suggest that Section 45 of the SDA, which describes incapacity for personal care, is of no value and should be removed from the SDA. For the purposes of guardianship applications, more meaningful guidelines are found within the Mental Health Act (MHA),[iii] which state that a person with a mental disorder who is at risk for serious physical impairment may be held involuntarily within a psychiatric facility. These individuals are not a danger to purposefully hurt themselves or others, but cannot care for themselves independently. They do not necessarily require a hospital setting, but simply a safe, supervised setting where they can be cared for. These individuals typically require an SDM to decide where they will live. Extending the criteria for involuntary hospitalization described in the MHA to the appointment of a guardian of personal care would allow for more consistent and meaningful evaluations of capacity for self-care. Furthermore, by adopting the framework of the MHA for guardianship of personal care, the individual deemed incapable would maintain the right to a hearing at the CCB, thus preserving accessibility to the fundamental right of appeal not provided in the SDA.

[i] Substitute Decisions Act, 1992, SO 1992, c 30 <https://canlii.ca/t/l0gb>

[ii] Health Care Consent Act, 1996, SO 1996 <https://canlii.ca/t/kvc1>

[iii] Mental Health Act, RSO 1990, c M.7 <https://canlii.ca/t/ksnp>