Decisions About Health and Personal Care: What does it take to be legally capable?

For those interested concerned with issues around "consent" (and that should be all of us), might I suggest the recent presentation given by Professor Sheila Wildeman, a law professor at the Schullich School of Law (aka Dalhousie Law School).

Prof. Wildeman has a deep understanding of the issues involved under the Incompetent Persons Act and other relevant legislation in Nova Scotia. Beginning with the now well-known story of Jenny Hatch (the young American woman with Down Syndrome who successfully fought her parents' guardianship application), Professor Wildeman goes on to examine the current state of the law surrounding "legal capacity" in Nova Scotia in regards to guardianship and health and personal care decisions.

But she doesn't just offer a useful tour through the current state of the law - Professor Wildeman does an excellent job of setting out the fundamental values that are at stake here and explaining the differences between substitute decision-making regimes (such as guardianship) and supported decision-making (one of the newest buzz terms in the disability community).

Yes, the lecture is lengthy but I highly recommend it for anyone who wants to get a real grasp on these issues. Because, really, without a firm grasp on these issues, how we can expect to advocate effectively for ourselves and our loved ones?





On a related note, I present to you ARCH's analysis of the recent Supreme Court of Canada decision in Cuthbertson v. Rasouli, 2013 SCC 53.

In Cuthberton, the SCC was asked to examine the process that the law requires when an incapable person is unable to provide consent or refusal in situations involving life support.  Decided under Ontario's Health Care Consent Act, the Court concluded that “treatment” under this Act extended to withdrawal of life support, contrary to the arguments of the doctors.

ARCH Disability Law Centre therefore welcomes the safeguard that has been strengthened by the Supreme Court for persons who are incapable of expressing their consent.  Today’s decision reinforces the applicability of the Health Care Consent Act and the legal framework that it contains for resolving withdrawal of treatment disputes, namely a process before the Consent and Capacity Board that  is accessible, expert, cost-efficient, and expedient.  The Court has alleviated concerns that the Consent and Capacity Board might simply “rubber stamp” a physician’s decision by ruling that the Board must apply the highest standard of review to the decision of a substitute decision-maker, underscoring the critical nature of the interests at stake.

The process of referring these disputes to an accessible administrative tribunal is of particular importance for low-income people with disabilities and their substitute decision-makers. As the Chief Justice states in the decision, the legal and financial burden of requiring parties to apply to court for an injunction to prevent withdrawal of life support, as proposed by the physicians appellants, heightens the vulnerability of incapable patients.

Of course, Nova Scotia has nothing like Ontario's Consent and Capacity Board. What we do have is the Personal Directives Act, which allows a person with *capacity* to set forth a statement of their values, wishes and beliefs concerning future "personal care" decisions to be made on their behalf (much like the idea of a "living will") and to nominate a person (or persons) of their choosing to make "personal care" decisions on their behalf.

The process for determining whether or not a person has legal capacity varies widely among the provinces. The *best*, perhaps, that could be said for Nova Scotia in this regard is that, at least in the guardianship context, we have the distinction having the most archaic system in the country.

And, no, that is most definitely NOT a good thing.

* For the purposes of the Personal Directives Act, "capacity" is defined as the ability to understand the information that is relevant to the making a personal care decision and the ability to appreciate the reasonably foreseeable consequences of a decision orlack of a decision)". [sec. 2(a)]