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Notes on Capacity to Instruct Counsel
By Ed Montigny [1]
OVERVIEW
In Ontario, the presumption is that an adult client is capable of instructing counsel. This presumption is not rebutted by the mere fact that a client may be a person with a disability. Even when a disability impacts upon a client’s ability to communicate their instructions to counsel, this does not make the client incapable of instructing counsel. Counsel has an obligation to find the appropriate means to accommodate the client’s disability related needs to the point that effective communication is possible. In the majority of situations where a disability may appear to compromise a client’s ability to provide instruction to counsel, the provision of adequate accommodation will allow the client and lawyer to work together effectively.
Nevertheless, even when accommodation has been provided, there will be occasions when a lawyer has serious concerns about a client’s ability to understand the nature of the retainer, the circumstances of the case and the options presented when he or she instructs counsel. When these situations arise, a lawyer must be able to assess the client’s capacity and decide whether it is possible to continue to accept instruction from the client, or whether, due to the client’s inability to sufficiently understand the information related to their legal matter, the lawyer is unable to continue to accept the client’s instructions.
Finding a client incapable of providing instruction to counsel is a serious matter that impacts upon a client’s ability to access justice. However, taking instruction from a client when their capacity is in question represents a serious breach of a lawyer’s ethical obligations. For these reasons, lawyers have a duty to understand capacity from both a practical as well as a legal vantage point. The notes that follow are not intended to be a full discussion on the issue of capacity. They merely represent a practical starting point to help lawyers begin their exploration of this often complex and challenging subject.
WHAT IS CAPACITY?
Although much has been written on the topic of defining and recognizing capacity, the concept remains elusive.
Having a particular diagnosis which may affect capacity, such as a mental health issue or dementia, is not, in itself, determinative of an individual’s capacity to instruct counsel. While certain conditions may potentially impact upon a person’s capacity to make certain decisions, it cannot be assumed that the mere presence of such a disability, automatically renders a person incapable to instruct counsel. Each case must be assessed on an individual basis.
The definition most often employed by the courts when they must decide whether a person is capable or incapable of making a particular decision includes two basic elements:
To be “mentally capable” means that a person must have the ability to understand information relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[2] (emphasis added).
An important element of the definition above is that the focus is on process rather than outcome. The determination of capacity does not turn on the nature of a person’s actual decisions. A person is not incapable simply because their decisions may appear questionable. The inquiry focuses on a person’s ability to understand relevant information and appreciate consequences. As long as a person can meet this test they are capable of making decisions. The fact that a lawyer may not agree with those decisions is not relevant to a determination of capacity.
Determining capacity does not involve testing a person’s prior knowledge. The goal is to confirm a person’s ability to understand and process information. For instance, a lawyer must be satisfied that a client has a basic understanding of the mutual roles of client and solicitor. However, most members of the public do not have a detailed appreciation of what lawyers do, what a retainer means or what the obligation to instruct counsel entails. So the fact that a client may not already understand these issues does not render them incapable. It is a lawyer’s duty to explain these issues to the client. Capacity can be tested only once all necessary information has been provided to the client in a clear and easy to understand manner. Only if a client appears unable to understand the information provided to them will a concern about their capacity to instruct counsel arise.
The issue of capacity is further complicated by the fact that an individual’s capacity can fluctuate over time. Many mental health issues are episodic, meaning that while there may be periods where a person is incapable of performing a particular function, between such episodes that person will be perfectly able to make all decisions. The capacity of people with certain injuries, such as an acquired brain injury, may improve over time. For these reasons, it may be necessary in some cases to evaluate a client’s capacity on an on-going basis especially if any change in their ability to absorb or process information is detected.
It is not necessary that a client understand all the details necessary to pursue their case. Just as any person can hire an expert to handle complex affairs that are beyond their personal expertise, a client can rely on their lawyer or representative to understand the specific details and processes involved in their case. [3] A client need only:
a) understand what they have asked the lawyer to do for them and why,
b) be able to understand and process the information, advice and options the lawyer presents to them, and
c) appreciate the pros, cons and potential consequences of the various options.
Capacity is task specific. The test must be applied to the specific issue at hand. For instance, a person may be incapable to manage finances, due to an inability to process numerical information. This does not mean that they are also incapable of instructing counsel. It is necessary in every case to examine the precise conduct in question, to determine the essential elements of that conduct, and to inquire as to the client’s ability to understand the nature and quality of those elements so that an informed decision can be made. As long as that understanding is present, then any other form of mental health issue, however great, is irrelevant. It follows, therefore, that the criteria to determine whether a mental health issue is relevant are not universal. Rather they will vary from case to case simply because the essential elements of conduct inevitably vary from case to case. [4]
Consistent with the task specific notion of evaluating capacity, different legal tests have been developed in different contexts. It is up to counsel to ensure that the requisite standard is met. Some of the areas where specific legal tests have been developed include:
· Capacity to be a party litigant is canvassed in the Rules of Practice and related jurisprudence and is frequently canvassed in the context of limitation periods.[5] In other fora there may also be rules that deal with capacity of complainants or applicants. Or, there may be no specific rules, requiring counsel to investigate further how best to proceed.
· Testamentary capacity requirements are thoroughly reviewed in the context of estates jurisprudence. [6]
· Capacity to consent to health care is another detailed area of the law as is the law with respect to powers of attorney. [7]
CAPACITY AND PROFESSIONAL OBLIGATIONS
Rule 2.02(6) of the Rules of Professional Conduct of the Law Society of Upper Canada specifically addresses capacity. It begins with the principle of autonomy, directing a lawyer to maintain a normal relationship as far as is reasonably possible. The Commentary canvasses the gradations of disability that may exist, and the steps that, in some cases, may be necessary to ensure that there is proper assistance for the client with respect to his or her legal affairs.
Client Under a Disability
2.02 (6) When a client's ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.
Commentary
A lawyer and client relationship presupposes that the client has the requisite mental ability to make decisions about his or her legal affairs and to give the lawyer instructions. A client's ability to make decisions, however, depends on such factors as his or her age, intelligence, experience, and mental and physical health, and on the advice, guidance, and support of others. Further, a client's ability to make decisions may change, for better or worse, over time. When a client is or comes to be under a disability that impairs his or her ability to make decisions, the impairment may be minor or it might prevent the client from having the legal capacity to give instructions or to enter into binding legal relationships. Recognizing these factors, the purpose of this rule is to direct a lawyer with a client under a disability to maintain, as far as reasonably possible, a normal lawyer and client relationship.
A lawyer with a client under a disability should appreciate that if the disability of the client is such that the client no longer has the legal capacity to manage his or her legal affairs, then the lawyer may need to take steps to have a lawfully authorized representative appointed, for example, a litigation guardian, or to obtain the assistance of the Office of the Public Guardian and Trustee or the Office of the Children's Lawyer to protect the interests of the client. In any event, the lawyer has an ethical obligation to ensure that the client's interests are not abandoned.
Where a client does not have capacity, the lawyer’s key ethical obligation is to ensure that a client’s interests are not abandoned. Termination of a retainer without making serious attempts to ensure the client’s legal affairs are attended to when possible and practical would amount to abandonment.
If a lawyer concludes that a client is incapable of instructing counsel, it may be necessary to seek the appointment of a litigation guardian to instruct counsel on behalf of the incapable person. While seeking this type of accommodation has been complicated in the past, [8] increasingly, administrative boards and tribunals as well as the courts are acknowledging the need to have in place simple, accessible and cost effective processes to permit the appointment of litigation guardians or the use of other forms of accommodation to ensure that litigants with capacity issues are not prevented from asserting their legal rights due to a lack of proper accommodation by the legal system. [9]
ACCOMMODATION
Before any determination of capacity is made, accommodation must be provided. The Ontario Human Rights Code obligates all service providers to accommodate disability. This means that lawyers have a legal obligation to provide whatever accommodations are required by a client with a disability. This includes clients with mental health issues, acquired brain injuries, intellectual disabilities or any other disability that may impact upon a person’s ability to understand or process information or appreciate the consequences of making or not making a decision. A lawyer has a professional obligation to not turn away a client simply because they require accommodations the lawyer may find expensive or inconvenient. In addition, service providers must accommodate people with disabilities without passing on the cost to those persons. This means that a lawyer cannot charge a client for the cost of interpreters or other forms of accommodation.[10]
The idea behind accommodation is that a person who is unable to perform a particular function due to a disability, will, in most cases, be able to perform that function adequately if they are provided with the proper assistance or accommodation. The obvious example would be providing wheelchair ramps to allow persons who, due to a disability, could not otherwise get from point A to point B if doing so involved climbing stairs.
This principle applies to capacity in the same way it applies to physical disabilities. Clients who have difficulty understanding or processing information should be provided with whatever accommodation they need to improve their ability to understand and appreciate the information relevant to their legal matter. Accommodation may be simple, such as speaking clearly, providing written material in plain language, frequent repetition, or giving a client extra time to absorb information and make decisions. In some cases more complex forms of accommodation may be required.
Supported decision making is a form of accommodation specific to persons with capacity issues. The idea is that an individual or small group of individuals who know a person well assist that person by helping them absorb and process information in a manner that is familiar to them, by communicating the information to them using the terms or gestures that the person in question understands. Supported Decision Making may work well in cases where a client has a communication disability and therefore has difficulty expressing themselves in a manner that anyone other than those close to them can understand. In such a case, support persons would act as interpreters, explaining the information provided by the lawyer to the person in a manner the person can understand, and conveying the person’s decision, which may be expressed as words or gestures, to the lawyer in a manner the lawyer can understand. [11]
Supported decision making is still a relatively new and untested concept. [12] It has the potential to allow many individuals who might otherwise be declared incapable to retain their autonomy. However, it is not without its challenges for lawyers. The duty to accommodate does nothing to diminish a lawyer’s obligation to ensure that he or she is receiving instruction from the client. When a lawyer is receiving instructions via an intermediary such as a support person, there may be situations where it is not clear to the lawyer that the client is actually the person making the decision in question. This is a particular concern in situations where the lawyer cannot understand the words or gestures the client uses to communicate, it may be nearly impossible to confirm that instructions provided through the ‘support person’ are not simply the opinions and decisions of that support person. Nevertheless, it is necessary to canvas supported decision making and employ it to the extent possible before turning to more drastic measures such as the appointment of a litigation guardian.