Refusal to make findings of incapacity: a concerning trend

As a health lawyer with over a decade of experience, I've witnessed the ebb and flow of challenges within the healthcare sector. However, a recent trend has emerged, signaling a concerning shift in the landscape of healthcare decision-making. A noticeable reluctance among health professionals to make findings of incapacity poses significant risks to vulnerable populations, including those with cognitive impairments, developmental disabilities, and mental illnesses.

In Ontario, our legal system provides a robust framework through several statutes to safeguard vulnerable individuals. These laws outline clear guidelines on who can make a finding of incapacity, the criteria for such a finding, and the rights to challenge these determinations. These safeguards are designed to prevent exploitation and harm, ensuring that those who cannot make decisions for themselves receive the protection and support they deserve.

Findings of incapacity are not just bureaucratic hurdles. They are essential processes that enable substitute decision-makers, usually family members, to step in and make crucial decisions on behalf of their loved ones. Whether it's consenting to admission into long-term care or making decisions about necessary medication, these findings ensure that the interests of the incapable person are prioritized and protected. Legal guidelines, including adherence to prior capable wishes and best interests, further bolster these protections.

However, the effectiveness of these safeguards hinges on the willingness of healthcare professionals to make findings of incapacity. Lately, an alarming trend of avoidance has come to light. I have encountered numerous cases where health professionals, despite clear evidence of incapacity due to advanced dementia or severe mental health issues, refrain from making the necessary findings. This reluctance can lead to dire consequences, including untreated illnesses, financial ruin, and in some instances, preventable deaths.

The reasons for this hesitancy are varied but often stem from a fear of potential legal repercussions. This inaction not only undermines the patient's well-being but also negates the foresight of individuals who have prepared for such circumstances through mechanisms like power of attorney. For instance, I recently heard from a client about a case in which the family doctor acknowledged her mother's incapacity but refrained from documenting this due to concerns of being sued. The patient has advanced dementia and lives alone, at risk, without support. Her daughter can only secure support once the power of attorney her mother made years ago is "activated" by way of a note from the family doctor. Her mother has funds in a bank, but she is not permitted to access them without written proof of incapacity. The doctor's (frankly unnecessary) fear about a lawsuit from a patient who is highly impaired is preventing the patient from being provided with home care and thus the opportunity to live safely in her home. A realistic outcome is that this patient will suffer a terrible injury due to lack of supervision, end up in hospital, and then be placed on a waitlist for long-term care contrary to her wishes. At that point she will likely be deemed at risk with needs that are too high to safely return home and will spend months living in a hospital until a long-term care bed becomes available. Surely this is not in the patient's best interests.

This reluctance to make findings of incapacity is arguably a failure to fulfill a professional and ethical duty to protect the most vulnerable among us. The consequences of inaction are far-reaching, affecting not only the individuals in need but also their families who are left to navigate these challenges without the legal authority to act.

It's imperative that healthcare professionals recognize the critical role they play in this process. The legislation grants them the authority to make various findings of incapacity, not as a burden, but as a means to wield their expertise in service of those who cannot protect themselves. The fear of legal repercussions should not outweigh the ethical obligation to act in the best interests of these individuals.

As we move forward, it is crucial for the healthcare community to re-evaluate its approach to findings of incapacity. Training, legal education, and a supportive environment for making these difficult decisions can help mitigate fears and promote action, emphasizing that the protection of vulnerable individuals is as important as upholding the autonomy of persons who clearly lack capacity.

The reluctance to make findings of incapacity is a disturbing trend with significant implications. If this trend continues, I predict the next wave will be lawsuits against health professionals who fail to use their legislative authority to protect those unable to protect themselves and for whom the risk of harm is foreseeable.

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