“The test to determine the capacity to consent to treatment is set out in s. 4(1) of the HCCA which provides that:
(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Therefore, there are two parts of this test:
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- the person is able to understand the information relevant to making the decision about the treatment; and,
- the person appreciates the reasonably foreseeable consequences of a decision or lack of decision.
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The inability to understand the information relevant to making a decision about treatment must be as a result of a mental disorder. As stated in Starson v. Swaze:
[A] patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences. Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision: Starson v. Swaze, 2003 SCC 2, at para. 81.”