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This Report is the product of a process that began with a request from the Ethics Committee of Winnipeg's Golden West Centennial Lodge Personal Care Home. Staff members were having difficulty determining whether elderly residents were mentally competent to make decisions about themselves, and looked to the Commission for assistance in this regard. In turn, the Commission established an Advisory Committee, which learned that other people who were regularly required to assess the competence of customers and clients were experiencing the same difficulty. The Advisory Committee recommended developing a protocol that would clarify when and how to assess competence, and the appropriate course of action to take following the assessment. Such a protocol would not only assist those required to assess competence, but also protect vulnerable people who may not be competent to make a particular decision.
The Commission prepared a Discussion Paper on the issue of the "informal" assessment of mental competence, and circulated it to interested parties for comment. This Report reflects the Commission's consideration of the responses to that Discussion Paper.
The common law presumes that a person is competent once he or she has attained the age of majority. Only after a reasonable possibility of incompetence has been established does the law intervene, and even then often in uncertain or ill-defined ways. This lack of legal certainty raises concerns about possible infringement of personal autonomy.
In the past, the law often considered competence to be a global construct: either one possessed absolute mental capacity, or one lacked the capacity to make any decisions at all. However, it is now widely recognized that a person may simultaneously be competent to make decisions about one matter and not competent to make decisions about another; incapacity in one area does not necessarily imply incapacity in another area. This understanding of competence is not, however, recognized in Manitoba's existing statutes.
The law must balance three competing interests when dealing with determinations of individuals' mental capacity: the individual's rights to dignity, autonomy, and self-determination; the individual's best interests as determined by the state; and the community's interests in the promotion of broader state concerns. The potential conflict between care and liberty may be minimized by the adoption of two fundamental guidelines. First, assessors should be very selective, assessing competence only in relation to a specific task or decision. Second, when intervention is necessary, the interference with the person's freedom should be minimized; that is, the least restrictive alternative should always be adopted.
The common law provides some guidance for determining competence on an informal basis in a number of specific circumstances, including those requiring the capacity to: marry; make a will; execute an enduring power of attorney; enter into a financial contract; or consent to medical treatment. The difficulty when discussing a common standard for all instances where competence becomes an issue is that the standard fluctuates even amongst those five examples. For instance, a person may lack testamentary capacity, and yet have the capacity to marry, and a person who has been declared incapable of managing his or her affairs, and has had a committee appointed to manage his or her estate, may still have the requisite capacity to marry.
Despite the variation in existing legal standards for competence, it is in the interests of both the assessor and the person whose competence is in question to develop standardized testing at the informal level. A common standard setting out, on a very general basis, what is required for someone to be considered "competent" could minimize the problems created by inconsistent assessments by different people in similar circumstances.
A legal duty to determine whether someone has a certain level of competence arises every day, in a myriad of situations. Unfortunately, people confronted on a day-to-day basis with the need to assess capacity generally lack the proper training to conduct such testing. This problem is compounded by the fact that the existing legal tests for capacity vary depending on the circumstances, and what will trigger the need for assessment can also vary.
It is therefore important that assessors not act hastily in judging competence, and bear in mind that what may indicate a lack of competence in one person is mere eccentricity in another. Testing should not be applied wholesale to everyone who exhibits characteristics that may be considered peculiar. As well, an important tenet of competence assessment must be kept in mind: if no purpose is served from testing because no remedy is available in any event, testing is not justified.
When contemplating guidelines that may ultimately result in the refusal of services or treatment, or conversely, the involuntary imposition of services or treatment, it is important to be aware of the legal consequences that may flow from such actions. The uncontrolled nature of an informal process raises concerns regarding obligations of confidentiality, defamation, the law of negligence, consent issues, and human rights. The potential risks assumed by those conducting informal competence assessments must be considered when deciding what steps to take to clarify informal assessment procedures.
The responses to the Discussion Paper indicated that there is a strong demand for education and assistance on the topic of informal competence assessment. The vast majority of respondents were of the view that the government should provide guidelines, training, and informational materials to assist health care workers, and the public in general, in dealing appropriately with persons whose competence may become an issue.
There are many ways to assess the competence of individuals who may have exhibited signs of mental incapacity, several of which have been examined by the Commission. As no one particular form will be universally suitable for all circumstances in which questions of competence may arise, the Commission focused on the possible structure of a general assessment of mental competence.
Given the potential seriousness of the consequences arising from informal competence assessments, the Commission considers that the introduction of shared criteria for the various competencies would help to ensure shared standards of practice. The Commission therefore supports the creation of a set of guidelines that would be applicable to most circumstances in which questions of competence arise.
Guidelines should only permit testing if there is a demonstrated "trigger" and should only permit testing if the subject will benefit from intervention, and if such intervention would be the least restrictive alternative. Options should be set out as to the appropriate standard of competence to be demonstrated in any given situation and should be directed to enabling the assessor to determine the subject's ability to understand the relevant risks and benefits and available alternatives.
Organizations whose employees may reasonably be expected to be in a position to informally assess others' mental capacity should be required to provide for appropriate training of those employees. Any training regime should inform assessors of the potential legal consequences of conducting, or failing to conduct, an informal assessment. As well, The Mental Health Act should be amended to provide that persons conducting an informal assessment of competence, in good faith and in accordance with the guidelines recommended, be immune from any civil suit arising out of the conduct of that assessment.
The Commission also recommends the prompt establishment of an Advisory Panel, comprised of independent qualified professionals and interested persons, which it considers to be a necessary first step in developing such guidelines. It is hoped that the Commission's recommendations will assist the panel in addressing the most difficult issues concerning the informal assessment of competence.
September, 1999
Report #102
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