January 20, 2014

When the central issue in litigation is whether a person is capable or not, a capacity assessment can be an invaluable tool to assist the Court in making that determination. However, such an order is (and should be) difficult to obtain. To adopt the words of Justice Pattillo in Flynn et al v. Flynn , a capacity assessment is “an intrusive and demeaning process” with profound implications for the individual whose capacity is at issue. Moreover, a finding of incapacity will necessarily result in a loss of liberty for the individual – including, potentially, the loss of freedom to choose where to live, how to spend money, what to eat and what medical treatments to undergo. In Re: Koch , Justice Quinn compared the “formidable mechanisms” of the Health Care Consent Act and the Substitute Decisions Act to the tenets of criminal law. A person facing criminal charges will be afforded the full protections of the Charter, including the right to counsel and a trial before facing a loss of liberty. By contrast, a person can lose his or her liberty by virtue of a finding of incapacity following an interview process akin to a trial “for which the family member has no preparation and at which he or she sits alone at the counsel table” .

In this paper, I first examine the case law decided under section 79 of the SDA and section 105 of the Courts of Justice Act to explore when the court will order a capacity assessment. In the following sections, I will discuss what types of evidence should be adduced in an application to secure a capacity assessment, what information should be addressed in the court order providing for the assessment, some practical tips on retaining a capacity assessor, including what information should be provided to the capacity assessor, and some fertile grounds for challenging capacity assessments, based on the case law that has developed under the SDA and the HCCA.

Read the full paper here: A Practical Guide To Capacity Assessments by Angela Casey