In today’s blog, I will continue the discussion of the Re Sandhu, 2022 BCSC 2027, decision with respect to capacity assessments and some practice points that we may be able to learn from the assessment given the most weight in the Court’s decision.

As I explained yesterday, there were three capacity assessments considered by the Court in reviewing whether there was a serious concern as to the father’s mental capacity to manage his own property:

1.     The first assessment performed at the hospital by a geriatric physician:

a.     General concerns expressed regarding physical health and possible impact on mental capacity;

b.     No clear opinion as to capacity to manage property was provided;

c.      Assessment conducted over a year before the hearing;

2.     The second assessment organized by the applicant son:

a.     Conducted with the assistance of an interpreter;

b.     The assessor relied on background information provided by the applicant son and drew certain inferences from the father’s disagreement with that version of events;

c.      The son was in a different room in the father’s home, but within earshot; 

3.     The third assessment preferred by the Court:

a.     Organized by the father’s lawyer;

b.     Viewed by the Court as being “comprehensive” and “independent”;

c.      No involvement of the son;

d.     Some responses were considered relative to the education of the father, without the assumption that they were linked to any decline in capacity;

e.     Conducted in the father’s native language of Punjabi and in the comfort of his home.

As our blog has previously reviewed, mental capacity is time, task, and situation-specific.  It follows that the manner in which a capacity assessment is conducted can directly impact an assessor’s opinion and render that opinion of lesser assistance to the court.

The qualifications of none of the assessors were questioned, with the primary differences being in the manner in which the assessments were conducted.  Specifically, the passage of time and absence of a clear opinion in the first assessment, and the reliance of the second assessor on controversial background information provided by the son, resulted in the weight of those assessments being discounted, with a clear preference for the third capacity assessment.  The Court’s comments serve as a reminder that an assessment of capacity should:

·       Be current;

·       Take into account the patient’s background, including education; 

·       Be conducted in a language that the patient is comfortable with;

·       Be conducted in a location comfortable to the patient, such as their home or another familiar setting;

·       In the event that background information is provided to the assessor, it should be neutral to avoid any tainting of the assessor’s opinion;

·       Provide a clear opinion regarding the patient’s capacity to make a certain (type of) decision.  In this regard, when lawyers are retaining a capacity assessor on a client’s behalf, it is best to clearly outline the legal capacity standard in question in respect of which the assessor’s opinion is sought. 

Thank you for reading.

Nick Esterbauer