Mental capacity key to treatment decisions

By Staff

A recent court ruling that allowed a hospital to force feed a woman with anorexia highlights the necessity of having a clear mental state when making personal health-care decisions, says Toronto health lawyer Elyse Sunshine.

“Generally speaking, we have the right to make decisions about our own health care,” says Sunshine, a partner with Rosen Sunshine LLP. “Capable people should be able to make their own decisions even if they are decisions other people would not agree with.”

But if a medical assessment determines a patient no longer has the capacity to make such decisions, that power is taken out of their hands, she tells

In the case of a 20-year-old Quebec woman with anorexia, a judge determined she did not understand that she was in danger of dying by refusing to eat, the Canadian Press reports.

“Because of her illness, she was not able to make her own treatment decisions,” says Sunshine, who was not involved in the case and comments generally.

In order to determine capacity, a health-care professional takes into consideration several things, she adds.

"He or she would determine if the patient is able to understand information relevant to a health care decision," says Sunshine. "This involves an assessment of the patient’s ability to process and retain information. The health professional would also assess whether the patient is able to appreciate the reasonably foreseeable consequences of a decision regarding treatment. This requires that they be aware of, after being provided with this information, if necessary, the health issues affecting them, how the proposed treatment could address their needs, as well as what happens if they refuse treatment."

In Ontario, capacity can be specific to medical issues and time, Sunshine says. In the case of anorexia, for example, one issue could be about the administration of nutrients, and another could be administering medications. A patient can be deemed to be capable of making decisions regarding medication but not about eating, she explains.

The patient may also be deemed capable of making a health-care decision at one time but not another, Sunshine says. “It’s something that constantly needs to be evaluated.”

Once a patient is deemed incapable, they are told of their legal rights, unless there is an emergency or crisis, and their right to have the finding of incapacity reviewed before the Consent and Capacity Board of Ontario, Sunshine says.

The board makes decisions within a tight timeframe and if either party disputes the decisions, they can seek a review before the courts, she says.

Even if someone is seeking medically assisted dying, they must be found capable, Sunshine says.

“So if you have terminal cancer and you are capable, it’s relatively uncomplicated to seek a medically assisted death,” she says.

Similarly, if a person with cancer or another illness refuses treatment, fully knowing they may die as a result, that is within their rights, Sunshine says.

“Refusing treatment is still a treatment decision, and if someone is capable of making that determination, they are entitled,” says Sunshine. “Often, loved ones wish family members would choose another route, but sometimes even those with dementia can be deemed capable in relation to a particular treatment in moments of clarity.”

Sunshine says the issue of capacity in health care should serve as a reminder for people to make their wishes known while their health is good, taking steps such as putting together a “living will” and appointing a power of attorney for health.

“It can be a difficult thing for people to think about,” she says. “No one wants to be confronted with their mortality and the possibility they won’t be able to make decisions about their healthcare, but it can happen to anyone, young or old.”

To Read More Elyse Sunshine Posts Click Here