In clinical geriatric psychiatry, it is an accepted standard of care to obtain corroborative information when conducting clinical evaluations. This is particularly true if there is any concern about diminished cognition/function, irrational thinking, or suicidal ideation. A 2005 paper proposing core competencies for geriatric psychiatry trainees recommends the skillful gathering of essential and accurate information through interviews with family members, caregivers, and other health professionals.[i] However, medical-legal tasks of capacity evaluation, such as for the evaluation of capacity to instruct counsel, testamentary capacity and possibly even capacity to appoint powers of attorney, may require strict confidentiality which prevents obtaining corroborative information from informants. As a result, obtaining corroborative information for capacity evaluation in this context is more complex than in clinical care.

For a Court to find that the presumption of capacity has been overcome, the parties must present compelling evidence supporting that finding. Such evidence may include corroborative information. However, the Court has warned assessors to be alive to the presence of improper motives of informants who seek to have another found to be without mental capacity.[ii]

The quality of medical-legal capacity assessments is of concern.[iii] The December 5, 2018[iv] annual report of the Auditor General of Ontario described an examination of expert consultants’ reviews from 2016 and 2017, covering 155 capacity assessments conducted by 77 assessors. The Auditor General found that there were quality concerns in almost one-third of the capacity assessments reviewed. The cited concerns included: lack of understanding of relevant legislation; asking subjects questions that lacked sufficient depth; not explaining why they found the subject incapable; and not meeting any of the requirements for completing an assessment. The report suggested that “including the input of others familiar with the person being assessed, such as a physician, would help ensure the overall accuracy of the assessment.”

However, obtaining health records for corroborative information for capacity assessments does not appear to be a standard of care for qualified assessors in Ontario. Furthermore, obstacles exist within healthcare obstructing access to health information. The following are examples from my own practice.

A patient admitted to a medical ward in our hospital with a neurological condition resulting in cognitive and functional decline posed a discharge planning dilemma. The social worker determined that the patient lived alone, had no family, and did not have powers of attorney for either personal care or property. The patient was failing to thrive in the community. The patient’s social network consisted of his investment advisor and one friend who had been assisting to manage the patient’s financial affairs, but no longer wanted to assume any responsibility.

The occupational therapist’s assessment concluded that the patient had significant cognitive impairment and was likely not capable to manage property. The hospital retained a qualified assessor to assess the patient’s capacity to manage property to facilitate discharge planning, hoping to obtain statutory guardianship of property by the Office of the Public Guardian and Trustee. The assessor found the patient capable. The clinical team felt they were in a quandary: they could not ethically discharge a patient home whom they deemed required a supervised environment. The choice of that supervised environment, be it a retirement home or a long-term care home, would depend on management of property.

I was asked to see the patient for a clinical diagnostic evaluation and to assist with discharge planning. The patient was assessed by a resident trainee who both reviewed the medical records and spoke to the friend to obtain corroborative information. The friend reported that the patient had not filed income tax for three years and could not remember to pay bills. After presenting the case to me, the resident and I returned later that morning to see the patient together. I asked if the patient had met the resident before. The patient replied confidently that they had met last week. Indeed, many of the answers to the questions I posed were confabulations to accommodate for impaired new learning, masked by a very pleasant social disposition.

The resident and I agreed the patient was not capable to manage property, but we did not feel we could make the finding under the Mental Health Act. He was not a patient under a psychiatric admission, and there was no role for involuntary confinement in hospital as he was perfectly agreeable to remain in hospital to pursue a safe discharge plan. To facilitate a discharge plan to a supervised environment, we suggested the patient consider appointing his investment advisor as attorney for property. The investment advisor was already in a fiduciary role, so we further suggested that the social worker facilitate an in-hospital meeting with the investment adviser.

On another matter, I was asked by a son to evaluate his mother for capacity to manage property. The son felt that his mother was at risk of elder financial abuse. The son was named as both attorney for personal care and property in his mother’s power of attorney documents. The son wanted an evaluation to confirm her incapacity to manage property to permit the bank to allow him to assume control of her finances.

The mother’s recent hospitalization and discharge planning had led to inter-personal conflict between son and mother, which is often the case in these complex cases. The conflict can create circumstances in which a senior with compromised cognition can be taken advantage of by a perpetrator.

The mother was a recent patient of the hospital I work in, but I was not involved in her circle of care. Both the hospital and the province (ConnectingOntario) are repositories of healthcare information, but these are not accessible for the purposes of capacity evaluations under the Substitute Decisions Act, which is not considered clinical care. Therefore, I appropriately obtained signed consent to disclosure from the son as attorney for personal care, and brought it to the health records department at the hospital.

The clerk was dumbfounded why a doctor of the hospital was providing a signed consent to disclosure, despite my detailed explanation that the purpose was for a capacity evaluation which is not part of the patient’s clinical care. The clerk remained uncomfortable with my request and had to contact the manager, who similarly was unfamiliar with my request and concluded the privacy officer of the hospital would have to respond to me. A few days later, the privacy officer informed me that he was not familiar with requests for consent to disclosure for capacity evaluations, despite acknowledging that the hospital hires qualified assessors from time to time to invoke statutory guardianship of property by the Office of the Public Guardian and Trustee for cases on medical units with discharge planning barriers. The privacy officer agreed with the suitability of my request, but informed me that I could not access the patient’s electronic medical record for the purpose of a capacity evaluation. Rather, I would receive the health records by mail within 30 days. I spoke with the privacy officer on September 25^th, and I still have not received the records.

I provided my report on September 29^th as there was no time to wait to review these records: the son, as attorney for property, needed to act swiftly with the bank to prevent elder financial abuse. In this case, I felt confident in my evaluation and believe that the medical records would not alter my opinion. However, I doubt if this would be the same for qualified assessors without similar clinical expertise, skill, and experience who nonetheless appear to routinely provide assessments without unbiased corroborative health information. An update to ConnectingOntario and hospital policies to grant access to health records for the purpose of capacity evaluations would be beneficial to facilitate independent verification of statements made by the person being evaluated for capacity.

References

[i] Lieff, S. J., Kirwin, P., & Colenda, C. C. (2005). Proposed geriatric psychiatry core competencies for subspecialty training. The American Journal of Geriatric Psychiatry, 13(9), 815-21.

[ii] Koch (Re), 1997 CanLII 12138 (ON SC)

[iii] Goddard Jan. Can We Rely on Ontario’s Capacity Assessors? Money & Family Law. September 2012. 69-71

[iv] Office of the Auditor General of Ontario, 2018 Annual Report