In October, Kim Whaley and Bryan Gilmartin were busy discussing decisional capacity across the country. On October 10^th they presented on a Canadian Lawyer Magazine panel on the role of the medical expert in an estates practice^[1] and on October 24^th they presented to lawyers in Prince Edward Island on decisional capacity and the process of capacity assessments. I thought this was a better time than ever to discuss how capacity assessments operate here in Ontario.

Capacity represents an area of enquiry where medicine and law collide. In this nexus, legal practitioners are often interacting with clients who are experiencing medical and cognitive challenges. Medical practitioners are frequently called on to apply legal concepts in the context of their clinical practice or review evidence retrospectively to determine whether an individual had the requisite capacity to complete a specific task or make a specific decision at a particular point in time.

The assessment of capacity, however, is a less-than-perfect science, both from a legal and medical perspective. As a result, capacity determinations are notoriously complicated and involve not only relevant professional and expert evidence but lay-person evidence as well.

In Ontario, the Substitute Decisions Act^[2] mandates who can act as a capacity assessor as well as the circumstances which may require that a legal assessment of capacity be conducted.

To facilitate the training of assessors on the legislation and the guidelines for assessing capacity, the Capacity Assessment Office (“CAO”) was created. In addition to training assessors, the CAO maintains a public list of qualified assessors, and also provides ongoing support and education to assessors in addition to monitoring the quality assurance requirements of assessors.

An Overview of Capacity Assessors

Some assessors may have specific skills and experiences working with people who have certain types of disability such as dementia, mental illness, brain injuries, and intellectual disabilities. But who is entitled to act as an assessor?

In Ontario, an assessor can be a member in good standing of one of the following colleges:

• Physicians and Surgeons of Ontario;
• Psychologists of Ontario;
• Social Workers and Social Service Workers Ontario;
• Occupational Therapists of Ontario; and
• Nurses of Ontario (RN or RN-Extended Class)

Most assessors successfully complete a CAO/Ministry of the Attorney General training program. In addition, assessors must comply with the ongoing Quality Assurance regulations and carry $1 million in professional liability insurance. To remain qualified to do assessments of capacity, an assessor is required to do at least five assessments during the two-year period following their qualification date and there-after during each two-year period.^[3]

A capacity assessor will generally engage with potential clients by screening calls (to determine if the person’s needs can be met in other, less intrusive ways), collecting background information, meeting the person to be assessed, providing rights advice, and if the person does not refuse, assessing their capacity.^[4]

The total cost of a capacity assessment will depend on numerous factors including the complexity and nature of the condition of the person to be assessed, the assessor’s experience in conducting assessments, the time needed to complete the assessment and related documents, and the assessor’s expenses (including travel). Capacity assessors set their own hourly or flat rates, however, typically, this cost can run anywhere from $500 to over $2,000 per capacity issue but varies widely depending on how complex the matter is. Generally, the person requesting the assessment is responsible for its cost. Where payment is an issue, financial assistance may be available through the CAO.^[5]

How is capacity assessed?

Capacity assessments can be contemporaneous, which are assessments made when the person whose capacity is being assessed is still alive or they can be retrospective which are assessments conducted looking at a previous period in time, and often, yet not always, postmortem.

In conducting an assessment, an assessor will try to determine whether the person being assessed has a factually accurate understanding of the issues.^[6] The assessor will assist the person being assessed by providing information relevant to the process and assessing the individual to determine the extent to which they can retain, interpret, and manipulate information. The individual’s responses are then appraised to determine whether they demonstrate an understanding of the information being discussed.^[7] The assessor will evaluate the person’s capacity to appreciate the consequences of their choices in the context of that person’s particular lifestyle, values, and beliefs. Assessors will not infer incapacity based on the unusual choices of the person being assessed. A capable person is entitled to make choices that may seem “bad” to others: the only relevant issue for a capacity assessor is the person’s level of cognitive functioning and their ability to reason and process information.

There is an expectation that capacity assessors will follow a fair process and should not use terminology or technical language but rather, should gear their questions to the education level and abilities of the individual being assessed.

Notably, there are certain types of assessments that capacity assessors do not perform. This is because the law provides for a different way for them to be done. For example, the Health Care Consent Act^[8] holds that if medical treatment is proposed for a person, it is up to the healthcare professional proposing the treatment to decide whether the person is capable of giving or refusing consent to treatment or for entry to a long-term care facility. These health professionals are known as evaluators under the HCCA.

The Utility of Capacity Assessments

A capacity assessment, performed by a qualified assessor, can be useful in determining whether someone is incapable of managing their property, or of granting or revoking a power of attorney. It can also be used retrospectively to determine whether an individual had testamentary capacity, for example, to make a will or a codicil to a will.

Capacity assessments may be used to create a statutory guardianship for property for the PGT to become an incapable person’s guardian.^[9] Capacity assessments may also be necessary to terminate a statutory guardianship for property,^[10] to make a power of attorney appointment effective,^[11] or to give or revoke a power of attorney for personal care “with special provisions.”^[12] Such assessments are also be used for court appointed guardianships where a finding of incapacity is required by the legislation.

Requesting a capacity assessment

Unless court ordered, to request an assessment for yourself or someone, you must contact an assessor, or a lawyer could make arrangements. The CAO’s list of capacity assessors can be found here.

The assessment cannot be performed if the person to be assessed refuses, however, if the assessment is court-ordered, it will override that person’s refusal.^[13]

Requesting a capacity assessment may require one to engage in the following steps:

1. Consider an assessor in your geographic location and contact them directly, asking about their availability, fees, and any areas of expertise;
2. Clearly explain to the assessor what kind of assessment you want them to conduct:
   1. Whether they need to examine the person’s ability to make property decisions, personal care decisions, or both;
   2. If the assessor will need to consider whether the person can grant a power of attorney;
   3. If the purpose of the assessment is to provide evidence in a court proceeding; and,
3. If the assessment is for property under section 16 of the SDA, complete the “Request for a Capacity Assessment” form and give it to the chosen assessor.^[14]

What will the assessor need?

When retaining a capacity assessor or expert for an opinion on capacity, they will need to have access to all information and documentation available that may shed light on the timeline for capacity/incapacity. This could include such documents, such as clinical notes and records of treating physicians. If the assessment is for the purposes of litigation, the proposed expert should be provided with all pleadings and potentially affidavits filed (depends on unique circumstances), any available transcripts of examinations for discovery (or cross-examinations), the files and notes of the drafting lawyer (if available), and access to any witnesses who knew the deceased.

The expert will also require a detailed description of the sources of information which were relied on to form an opinion of testamentary capacity, including the specific persons interviewed and a comment on the reliability of those individuals and the validity of their information. Also, it may be necessary to provide, if available, any evidence for the presence of a medical or psychiatric disorder based on an available date.^[15]

The Expert and the Court

Where it concerns an expert opinion on capacity for litigation purposes, the expert is under a special duty to the court. To guide this duty, the Supreme Court of Canada in R. v. Mohan,^[16] set out a four-part threshold test for the use of expert evidence. This test is structured in two components: first, four threshold requirements that the proponent of evidence must establish for proposed evidence to be admissible:

1. relevance;
2. necessity in assisting the trier of fact;
3. absence of any exclusionary rule; and,
4. a properly qualified expert.

The second component established in Mohan refers to the gatekeeping function of the trier of fact to exclude expert evidence on the grounds that its probative value is overborne by its prejudicial effect.

In White Burgess Langille Inman v. Abbott and Haliburton Co.,^[17] the Supreme Court of Canada cited Mohan with approval and endorsed the approach to be taken as established by the Ontario Court of Appeal in R. v. Abbey.^[18] In Abbey, the first step the proponent must establish is the threshold requirements of admissibility (the four factors from Mohan) and in addition, where opinion is based on novel or contested science, the reliability of the underlying science for that purpose. The second step requires a judge to balance any potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks.

Experts’ have a special duty to the court to provide fair, objective and non-partisan assistance. White Burgess held that a proposed witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.

In 2010, the Rules of Civil Procedure^[19] were amended to add new Rule 4.1.01, dealing with the duty of an expert. This rule codified the requirement for an expert to provide opinion evidence that is fair, objective and non-partisan and to provide opinion evidence only related to matters within the expert’s area of expertise but also, to provide such additional assistance as the court may reasonably require to determine a matter in issue.

In addition, rules 53.03 (1) and (2) were also amended to require expert witness reports to be served not less than 90 days before the pre-trial conference & responding expert reports to be served not less than 60 days before the pre-trial conference. Further, rule 53.03 (2.1) was also added to set out in detail what each expert’s report must contain.^[20] Notably, a report must include an acknowledgment of the expert’s duty (Form 53), which has been signed by the expert.^[21]

Where the proposed expert is a medical practitioner, there must be compliance with section 52 of the Ontario Evidence Act^[22] which holds that medical reports obtained by or prepared for a party to an action and signed by a practitioner are admissible as evidence with leave of the court and after at least 10 days notice given to all other parties.

The key principles regarding the preparation and use of expert reports under Rule 53.03 of the Rules was summarized in Moore v. Getahun,^[23] which held that the well-established practice of lawyers meeting with expert witnesses to review draft reports is acceptable, so long as the report reflects the expert’s genuine and unbiased opinion. The decision in Moore also held that preparatory discussions and drafts of expert reports are not subject to automatic disclosure in litigation – a party seeking these must show reasonable ground to suspect that counsel communicated with the expert in an improper way and that written reports that are not entered as exhibits in evidence and on which there was no cross-examination cannot be used by the trier of fact to discredit or contradict the expert’s viva voce evidence given at trial.

Concluding Thoughts

Capacity assessments have become an important piece of the puzzle in the legal and medical determination of the requisite capacity to make a certain decision. While this area is inherently complex and the process is not perfect, Ontario’s capacity assessment regime features a significant level of training, oversight, and support.

Engaging an expert requires the requesting party to exercise due diligence and to be thorough in informing the expert and providing them with the necessary information to make a proper determination. Parties and experts should both be aware of the duty owed to the court and the rules which pertain to the use of expert reports and timelines for service of same.

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[1] The exclusive webinar can be found at https://www.canadianlawyermag.com/multimedia/the-role-of-medical-experts-in-an-estates-practice/380471.

[2] S.O. 1992, c. 30.

[3] O. Reg. 460/05, s. 6.

[4] Capacity Assessment Office, “Presentation to Elder Abuse Ontario,” November 4, 2015 https://www.eapon.ca/wp-content/uploads/2015/12/EAO-Conference-2015-Capacity-Assessment-Office-1-1.pdf

[5] This assistance is only available if the kind of assessment required cannot, by law, be completed by anyone other than a designated capacity assessor; if the person or their family requests and assessment and that person will not refuse attendance; and if the person requesting the assessment meets the CAO’s financial criteria.

[6] For example, in an assessment about the capacity to manage finances, an assessor will determine whether an individual can accurately identify their income, assets, debts, and other financial information.

[7] This includes the discussing the choices the person is making (or not making) to assess whether the person realizes the consequences of the choices and can explain the rationale for making said choices.

[8] SO 1996, c 2 Sch A [HCCA].

[9] SDA, supra at s. 16.

[10] Ibid, at s. 20.

[11] Ibid, at s. 9 (3) which holds that if the continuing power of attorney (“CPOA”) does not provide a method of determining when the CPOA comes into effect, the CPOA will be effective when the attorney is notified in the prescribed form by an assessor who has performed an assessment of the grantor’s capacity, finding them incapable of managing property; See also, s. 49 (2) which holds same for personal care.

[12] Ibid., at s. 50 (1) which holds that a POA for personal care may contain one or more special provisions but that a provision is not effective unless the grantor made a statement in the prescribed form indicating they understood the effect of the provision and with 30 days after the execution of the POA, an assessor made a statement in the prescribed form indicating that after the POA was executed the assessor performed an assessment of the grantor’s capacity and at the time, the grantor was capable of personal care and was capable of understanding the effect of the provision.

[13] Ibid., at section 79 (1) which holds that if the court is satisfied reasonable grounds exist to believe the person is incapable, the court may on a motion or its own initiative, order the assessment; section 79 (2) permits the court to make an order for the person to submit to the assessment or permit entry to their home or attend such other places for the purpose of the assessment; section 81 allows the court to order the apprehension of a person for the purpose of enforcing an assessment order.

[14] Form 4, Request for Assessment of Capacity under section 16 can be found here.

[15] Complete with a specific and detailed description of the history and mental status examination with reference to delusions or cognitive dysfunction that are relevant to the disposition of the estate.

[16] [1994] 2 S.C.R. 9, 1994 CarswellOnt 66 at para. 23 [Mohan].

[17] 2015 SCC 23 (SCC)

[18] (2009), 2009 ONCA 624, 2009 CarswellOnt 5008.

[19] R.R.O. 1990, Reg. 194.

[20] Each report must contain the expert’s name, address and area of expertise; the expert’s qualifications, employment, and educational experiences in their area of expertise; the instructions provided to the expert in relation to the proceeding; the nature of the opinion being sought and each issue in the proceeding to which the opinion relates; the expert’s opinion respecting each issue; the expert’s reasons for his/her opinion.

[21] See O. Reg. 438/08, s. 48; Form 53 can be found here.

[22] R.S.O. 1990, c. E.23.

[23] 2015 ONCA 55.