16. Consent and capacity

Many people with psychosocial disabilities do not have difficulty with decision-making capacity. However, there may be times in a person’s life when, due to their disability, they are deemed to lack the capacity to make important life decisions.[269] In general, a person is deemed to have capacity if they are able to understand the information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[270]

In Ontario, there is a complex legislative scheme that governs matters related to mental capacity. The Substitute Decisions Act,[271] the Health Care Consent Act[272] and the Mental Health Act[273] all deal with aspects of decision-making and mental capacity. While a comprehensive examination of this legislative framework and its implications is beyond the scope of this policy, it is important to note that the Code has primacy over these pieces of legislation.[274] Therefore, decisions that take place under these pieces of legislation must have regard for the Code and human rights principles.

Human rights principles to keep in mind in matters related to consent and capacity are inclusive design, individualized assessment, respect for dignity, autonomy, confidentiality, opting for the least intrusive and restrictive options wherever possible, and integration and full participation wherever possible.

The power to make decisions about matters that affect one’s own life and to have them respected by law is a fundamental part of realizing one’s rights as an autonomous adult, and indeed, is fundamental to personhood itself. Capacity issues can affect a person’s ability to make decisions about getting married, managing property, personal care, health care, whether to receive treatment, consenting to go to a long-term care facility, instructing counsel, etc. The Ontario Court of Appeal has recognized that the right to personal autonomy, self-determination and dignity is “no less significant” for people with mental health disabilities, and “is entitled to no less protection, than that of competent persons suffering from physical ailments.”[275]

Capacity is not an inherent unchanging trait, but exists on a spectrum, is contextual and assessments can be influenced by the social environment. There may also be social, economic and legal barriers that a person with a mental health disability may face in making and implementing decisions.[276] For example, perceptions about someone’s capacity could be wrongly influenced by stereotypes.

In Ontario, adults are presumed to be capable, depending on the type of decision being made, unless there are reasonable grounds[277] to believe otherwise. Capacity should be measured on a case-by-case basis, with an eye to the purpose of the relationship or transaction in question.[278] For example, a person may be capable of consenting to treatment, but not creating a will. They may be able to make a simple decision, but not a complex one. [279]

Example: In one case, the Ontario Court of Appeal found that a woman in the early stages of Alzheimer's disease had the capacity to decide to leave her husband.  The Court determined that decisions related to marriage, separation and divorce required a low level of capacity. It distinguished these types of decisions from those related to instructing counsel, which it said required a higher level of capacity that included being able to understand financial and legal issues. In the Court’s view, instructing counsel was on a “significantly higher” level on the “competency hierarchy.” The Court decided that, “While Mrs. Calvert may have lacked the capacity to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.”[280]

People with capacity also have the right to make decisions that others do not agree with, even where a decision made by a capable person with a mental health disability is thought by others not to be in his or her best interest.[281]

Environments should be designed inclusively to facilitate participation in decision-making, wherever possible. For example, organizations should:

  • offer plain-language self-help resources to help people with disabilities make their own decisions about taking part
  • establish an accessibility office, or trained staff that act as a resource for people with capacity issues to seek information or assistance
  • make sure that everyone can provide informed consent – that is,  make sure everyone has the information they need to make a decision, including possible outcomes flowing from that decision
  • involve a support network or circle of support (such as family or friends) to help the person make decisions, or interpret what a person wants when they need to make a decision.[282]

Before determining that a person lacks capacity, an organization, assessment body, evaluator, etc. has a duty to explore accommodation options to the point of undue hardship. This is part of the procedural duty to accommodate under the Code. Accommodation may mean modifying or waiving rules, requirements, standards or practices, as appropriate, to allow someone with a psychosocial disability to access the service equitably, unless this causes undue hardship.

Example: A woman arrives at a government office to apply for public assistance. Upon approaching the service counter, she seems confused and speaks very slowly. The service provider takes the time to explain things patiently and in plain language. He answers the woman’s questions, helps her to understand the application and assessment process, and provides her with relevant brochures to take home with her. With this support, the woman is able to make an informed decision about whether to apply for benefits.

People with psychosocial disabilities who lack capacity are often highly vulnerable to mistreatment. Organizations and institutions dealing with people with psychosocial disabilities should recognize that people who lack capacity may be more at risk for exposure to exploitation and abuse, particularly if they are isolated from social supports, do not know their rights, or have people acting on their behalf who are in a conflict of interest.

Organizations should monitor practices relating to people with capacity issues to prevent situations that may expose people to violations of the Code or other forms of exploitation. Where people who are incapable are treated inequitably without regard to their specific Code-related circumstances, or exposed to disadvantage compared to other people who are capable, this may be discriminatory.

People acting on behalf of people with psychosocial disabilities (for example, guardians, support workers, substitute decision-makers, etc.) also have protection under the Code. Section 12 protects people from discrimination where they are associated with someone who identifies by a prohibited ground of discrimination. For example, if an organization disregards the input of a substitute decision-maker acting on behalf of a person with a disability, while taking into account the wishes of people with disabilities who do not require substitute decision-makers, this could be discrimination against both the person with the disability and their substitute decision-maker.

Given that many people in Ontario may need help with decision-making at some point in time, either due to dementia related to aging and disability, a mental health disability or an intellectual disability, organizations should develop policies and procedures to address these needs. The failure of an organization to do so could contribute to evidence of a Code breach if an adverse effect on persons with disabilities is found.

[269] Mental health issues and addictions are often cyclical, meaning a person with a mental health disability or addiction may be capable at one time, but not another. See Tess Sheldon, “Addressing the Capacity of Parties before Ontario’s Administrative Tribunals: Promoting Autonomy and Preserving Fairness,” ARCH Disability Law Centre, October, 2009, 5. See also K (Re), 2009 CanLII 54129 (ON CCB).

[270] See section 4(1) of the Health Care Consent Actsupra, note 234 and section 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30See also Article 12 and Article 14 of the United Nations’ Convention on the Rights of Persons with Disabilitiessupra, note 27.

[271] Ibid.

[272] Supra, note 234.

[273] Supra, note 70.

[274] Section 47(2) of the Code states “Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.”

[275] Fleming v. Reidsupra, note 61.

[276] Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity”; available online at: www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner.

[277] See the Substitute Decisions Actsupra, note 270: Section 2(3) Presumption of Capacity: (3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. 1992, c. 30, s. 2 (3).

[278] Godelie v. Pauli (Committee of), [1990] O.J. No. 1207 (Ontario District Court); M.K. v. Nova Scotia (Minister of Community Services), [1996] N.S.J. No. 275 (N.S. Family Ct.).

[279] Calvert (Litigation Guardian of) v. Calvert, (1997) 27 R.F.L. (4th) 394 at para 52 (Ont. Ct. (Gen. Div.)); affirmed by Calvert (Litigation Guardian of) v. Calvert, [1998] O.J. No. 505 (Ont. C.A.); leave to appeal to the Supreme Court of Canada denied by Calvert (Litigation Guardian of) v. Calvert, [1998] S.C.C.A. No. 161.

[280]Ibid. at para. 56.

[281] Starson v. Swayze, [2003] 2003 SCC 32, at para. 19.

[282] This list was adapted from Bach and Kerzner, supra, note 276; Lana Kerzner, Paving the Way to Full Realization of the CRPD’s Rights to Legal Capacity and Supported Decision-Making: A Canadian Perspective (2011), Prepared for “From the Margins: New Foundations for Personhood and Legal Capacity in the 21st century,” April, 2011, online: The University of British Columbia, Centre for Inclusion and Citizenship http://cic.arts.ubc.ca/research-knowledge-exchange/supportive-decision-making.html at 16; Sheldon, supra, note 269, at iii.