Diminished Capacity and the Client

Omar Ha-RedeyeAAS, BHA (Hons), PGCert, JD, LLM(c)

CNMT, RT(N)(ARRT)

Feb. 23, 2015

Bond Place Hotel, Toronto, Ontario

Why is Capacity so Important

• Aging population• Increased awareness of

mental health• Recognition of capacity on a spectrum

• Rules of Professional Conduct offer general instruction• Do not provide clear guidance and is open to interpretation

• Statutory provisions and case law around fitness to stand trial do not help with clarifying relationship between the lawyer and the client or the lawyer's role

Rule 3.2-9 of the Rules of Professional Conduct• When a client’s ability to make decisions is

impaired because of • minority, • mental disability, • or for some other reason,

• the lawyer shall, • as far as reasonably possible,

• maintain a normal lawyer and client relationship.

What is Normal Anyways?

Interpreting Rule 3.2-9 –Presumptions

•Commentary [1]: • presumption that the client has capacity• depends on factors:

• Age

• intelligence

• mental health

Interpreting Rule 3.2-9 –Presumptions

•Client capacity is not static• can come and go.

• Is there a distinction between an initial assessment, and where there is a long standing relationship and diminished capacity begins to arise?

The Role of Medicine in Capacity

• Medical parameters of capacity:• the ability to communicate a choice;

• the ability to understand relevant information;

• the ability to appreciate the consequences; and

• the ability to rationally manipulate the information

• Capacity for making medical decisions may not be sufficient for legal decisions

Interpreting Rule 3.2-9 –Protecting Interests

•Commentary [3]: • If the client cannot make decisions for

themselves, lawyer may be required to take steps to secure a representative to “protect the interests of the client”. • a litigation guardian

• Public Guardian and Trustee

New Commentary: Authorized Disclosures• Commentary [5] of Rule 3.2-9: lawyer’s authority to

disclose necessary confidential information when taking protective action on behalf of a client or person who lacks in capacity may be implied in some circumstances

• If the court or other counsel becomes involved, the lawyer should inform them of the nature of the lawyer’s relationship with the person lacking capacity.

New Commentary: Authorized Disclosures

• commentary [10] of rule 3.3-1: • client’s authority for the lawyer to disclose

confidential information to the extent necessary to protect the client’s interest may be inferred in some situations• where the lawyer is taking action on behalf of a

person lacking in capacity to protect the client’s interests until a legal representative can be appointed

New Commentary: Authorized Disclosures• In determining whether a lawyer may disclose

confidential information in these situations, the lawyer should consider all of the circumstances, including:• the reasonableness of the lawyer’s belief that the

person lacks capacity;

• the potential harm that may come to the client if no action is taken; and

• any instructions the client may have given the lawyer when capable of giving instructions about the authority to disclose information.

What if There is a Conflict?

• as an officer of the court, counsel is entitled and may be required to raise the issue of fitness if s/he believes that the client is unfit• Still undecided is whether counsel is entitled to raise

issue of fitness against the wishes of the client• R. v. Szostak, 2012 ONCA 503 at para 71

• Similar issues for capacity generally

What was Not Adopted from Model Code• Commentary 2: A lawyer should decline to act for a

person incapable of giving instructions• unless the lawyer reasonably believes there is no other agent

or representative, and • failing to act could result in imminent and irreparable harm

• Commentary 4: A lawyer may disagree with a legal representative’s assessment of what is in the best interests of the client under a disability• judgment of the legal representative should prevail as long as

there is no lack of good faith or authority,• may require reporting the misconduct to a person or

institution such as a family member or the Public Trustee

Substitute Decision Making for Incapable Parties in Ontario• substitute decision-makers (SDMs) give informed

consent on behalf of incapable patients• must follow the patient’s prior capable wishes and

consider the patient’s values and beliefs

• SDM medical decisions can differ from decisions that the client or other legal guardians might make

How Ontario is Different

• Ontario differs from other jurisdictions as follows:• “(a) does not allow prior capable wishes to be given

effect without interpretation by an SDM (except in emergencies);

• (b) does not prioritize formalized ‘advance directives’ over informally expressed wishes, values and beliefs; and

• (c) places a great deal of emphasis on contextualizing health care decision-making in the patient’s current health condition”

• Judith Wahl, Mary Jane Dykeman, Brendan Gray, “Legal Capacity, Decision‐Making and Guardianship,” January 2014

Families do not Always Enhance Voices• People with disabilities have some of the most pressing

needs• But still have one of the “most poorly understood support needs

and preferences”

• Compliance is not necessarily consent• voices can be even more silenced in family

• “familiar interactions tend to be characterized by habitual and compliant behaviors”

• Caregivers should give time to collect thoughts and participate in discussions where possible

• Krista James, Laura Watts, “Understanding the Lived Experiences of Supported Decision-Making in Canada,” Canadian Centre for Elder Law, March 2014

Different Levels of Capacity

• focus on a functional ability as opposed to a functional disability• Examination of decision-making capacity

• capacity to marry < power of attorney for personal care < a power of attorney for property < make a will < enter into a contract < enter into a trust

• Ian M. Hull and Suzana Popovic- Montag, “Testing for Capacity and Undue lnfluence: A Pract¡cal Guide,”

American Bar Association, “Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers,” https://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf

Grounding Guardianship in Rights

• A rights-based approach to guardianship should emphasize the following:• 1) Respect for inherent dignity and worth

• 2) Respect for and promotion of individual autonomy and independence

• 3) Promotion of full and effective participation and inclusion in society

• 4) Promotion of substantive equality

• 5) Promotion of accessibility

• See Convention on the Rights of Persons with Disabilities (CRPD) Articles 3, 12

Towards a Better Future of Guardianship• 1) Guardianships should be used sparingly. Regularly

monitor it by a “competent, independence and impartial public authority or judicial body” and should not last longer than is required (p. 18).

• 2) Foster means to complain of mistreatment of abuse and be taken seriously.

• 3) Institute complaint mechanisms for people subject to guardianship.

• 4) Facilitate feedback on the system of regulation of guardianship.

• Kerri Joffe, Edgar‐Andre Montigny, “Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities who are Subject to Guardianship,” January 2014

Techniques to Enhance a “Normal” Relationship• A. Engender Client Trust and Confidence: develop

rapport, spend time, interview alone, emphasize confidentiality

• B. Accommodate Sensory Changes: minimize background noise, maintain eye contact, increasing lighting, use large font

• C. Accommodate Cognitive Impairments: break down complex issues slowly, repeat and summarize, use multiple short meetings

• D. Strengthen Client Engagementin the Decision-Making Process

• ABA Handbook