Ombudsperson Pans Incapability Assessments

March 2, 2013
in Category: BC Politics, Blog, Civil Rights, Mental Health, Seniors
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Even when you already know them, sometimes it’s shocking to hear facts confirmed. In February, BC Ombudsperson Kim Carter released her 186-page investigation into BC’s processes for determining people to be “incapable” of controlling their own legal or financial affairs, “No Longer Your Decision.” Focus has reported extensively on the arbitrary, draconian, often self-serving ways by which citizens are being stripped of these basic rights by long-term care providers, health authorities, and the public guardian. Carter concluded the process has indeed been “failing to meet the requirements of a fair and reasonable procedure.”

Indeed, on nearly every key issue, the Ombudsperson’s findings disturbingly reflected many people’s worst experiences and reinforced the worst fears of the rest of us. For starters, there’s no definition of “incapability,” even though authorities are using the concept daily to take away people’s rights to make their own decisions. BC law, Carter clarified, “does not define what it means for an adult to be incapable or establish any criteria or test for this determination. Neither the Public Guardian and Trustee nor the health authorities have defined what incapable means.”

As for the assessment process through which authorities can declare you to be incapable, that’s a free-for-all, too. BC law “does not set out a process to be followed…does not require that an assessment or opinion from a physician be obtained…does [not] establish any standards for such an assessment…does not require that the [assessor] knows the adult and has examined the adult recently…” And to top it off, most health authority staff admitted to Carter that they had no special training in conducting incapability assessments, and the health authorities admitted they provide no such training.

Carter further found that there are no requirements for health care providers or the public guardian to even notify you or your family that your incapability is being assessed, let alone to explain their reasons for concluding you’re incapable or give you any opportunity to respond.

Carter recommended that the Ministry of Justice at least create steps allowing you to legally challenge a health authority’s or public guardian’s conclusion that you are incapable. The BC Justice Ministry promised only to “review” this final recommendation; however, most of the Ombudsperson’s recommendations on the other issues were accepted by government and will supposedly be in force by July 1, 2014. Carter wrote that she was “cautiously optimistic.”

Rob Wipond

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