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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 Evaluators, as identified in the RHPA include members of the following Colleges
There are 6 distinct aspects to a capacity evaluation
A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
Exception: you have reasonable grounds to believe that the patient is not capable to make a decision regarding , treatment, admission to long-term care or personal assistance care.
Also bear in mind, a person may be incapable with respect to some services, such as major surgery, but be capable of consenting to speech-language therapy or the use of a hearing aid. A person may also be incapable of consenting at one time but capable at another.
Furthermore, if a person was judged to be incapable, and a substitute decision maker provided consent, and the person later becomes capable, then the person's own decision to give or refuse consent governs.
The patient must be informed that his or her capacity to make a decision regarding treatment, admission to long-term care, or personal assistance care is going to be evaluated.
Explain the potential consequences of a finding of incapacity - the patient's substitute decision maker (SDM) will make the decision on behalf of the patient.
Inform the patient that he or she can appeal a finding of incapacity.
The health professional must help with the appeal process.
The health professional should answer the questions until the patient/client is satisfied.
A patient/client has the right to consent to a capacity assessment
Include the following:
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.
A competent person's right to decide takes legal precedence over 'best interest'.
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".