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Introduction

Every competent individual in Ontario has the right to decide whether or not to consent to treatment, be admitted to a Long-Term Care facility, or to receive personal assistant service.

If the individual's ability to make such a decision is in doubt, then his or her capacity is evaluated.

Under the Health Care Consent Act, 1996:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

The key words understand and appreciate must considered.

As a construct, to ‘understand' refers to a person's cognitive abilities to factually grasp and retain information.

To the extent that a person must demonstrate understanding through communication, the ability to express oneself (verbally or through symbols or gestures) is also implied.

The 'appreciate' standard attempts to capture the evaluative nature of capable decision making, and reflects the attachment of personal meaning to the facts of a given situation

Capacity Evaluation

Capacity Evaluators, as identified in the RHPA include members of the following Colleges

There are 6 distinct aspects to a capacity evaluation

Common Misapprehensions in Capacity Evaluation

Include the following:


That there is Global capacity or incapacity

A patient/client either has or does not have capacity to make decisions. This is erroneous.

If a patient has been found lacking in capacity by another health professional, even on the same day, you still have to presume capacity for a new decision.


That Safety and 'best interest' trumps autonomy

A competent person's right to decide takes legal precedence over 'best interest'.


That Cognitive testing equates to capacity evaluation

Health care professionals who are not familiar with the legal requirements of capacity evaluation frequently resort to formal tests that measure cognition and memory.

Tests of cognition do not evaluate a person's capacity (able to understand and appreciate) or decision making skills.

Furthermore, the interpretation of results is difficult with individuals with aphasia and other language barriers.

As professionals who are trained specifically to communicate effectively with people who have communication disorders, CASLPO members have the authority and the knowledge, skills and judgement to determine capacity.

For strategies and resources for obtaining consent with individuals with communication disorders, see "Resources" and "Further Readings".