Regarding use of the Adult Guardianship Act (AGA) for individuals with chronic substance use, it should be clarified that the Act allows involuntary admission in hospital to investigate whether a person meets full criteria for Section 59. Section 59 allows ongoing hospitalization until a support and assistance plan can be put in place to try to mitigate the risks of, in your example, self-neglect. The first criterion of the AGA is that the adult is unable to seek support and assistance when needed. Such assessments are conducted by a designated responder, typically a social worker, once an individual is no longer intoxicated. Assessments for AGA eligibility will often incorporate information or assessments from other disciplines, such as occupational therapy, psychiatry, or geriatric medicine to assess for factors that increase vulnerability while not intoxicated, such as neurocognitive disorders. For many individuals without baseline cognitive impairment, the patient will demonstrate an ability to seek support and assistance when not under the influence of substances, rendering them ineligible for Section 59. However, if a patient shows that they are unable to seek support and assistance even once they are no longer intoxicated, for example because of a neurocognitive disorder secondary to alcohol use, they may meet the criteria for Section 59 if the other criteria are also satisfied, as outlined in Figure 1 of our article.
Thought must also be given to how using a support and assistance plan can modify the identified risks of using substances, recognizing that we cannot typically force individuals to abstain from substances alone. Exceptions to this do occur, rarely, for individuals with significant vulnerabilities; for example, a neurocognitive disorder rendering them at risk of regular and significant substance abuse causing self-neglect. However, these cases typically exist after less intrusive measures have failed and are likely to involve a court-ordered support and assistance plan that restricts an individual’s access to substances due to residing in a care facility.
Regarding the issue of “alcohol-induced incapacity,” it is important to answer the question, capacity for what kind of decision? It is certainly reasonable to question an individual’s capacity to make decisions about how they live their life when they are living at significant risk. For example, does the patient have capacity to make decisions about being homeless, or using substances? However, housing or substance use are not medical treatments and, therefore, don’t fall under the Health Care (Consent) and Care Facility (Admission) Act. Therefore, saying that an individual is incapable of making decisions regarding substance use or housing does not permit us to take any action in the way of appointing a substitute decision maker as we would for medical treatment. Furthermore, even if someone fails to see the negative foreseeable consequences of their substance use, which suggests incapacity, existing legislation does not address forcing individuals to abstain from substances alone if they are incapable of making a decision to use them. Instead, it is best to focus on whether an individual meets criteria for the AGA, or in some cases, the Mental Health Act.
Regarding the case of Ms Safe, she had communicated that she thought her health would remain unchanged or stable without IV antibiotics. Therefore, Ms Safe failed to appreciate the foreseeable negative consequences and risk of death if she refused treatment, rendering her incapable of making a decision to decline medical treatment. In reply to another of your examples, such as if the patient said she wished to die from her illness, that suggests she understands the foreseeable consequences of declining treatment, which is one of several important criteria of capacity. In our experience, that kind of response could signal a potential desire for hastened death, which would trigger a psychiatric consult to rule out an underlying mood disorder. For the other examples, capable patients may have spiritual beliefs or preferences for nonconventional treatments. The test of capacity would be whether the patient understands the nature and anticipated effects of the proposed investigation or treatment and available alternatives, including the consequences of refusing.[3,4]
—Jennifer Laidlaw, MD, FRCPC
—Leanne Lange, MPA
—Erin Henthorne, MSW, RSW
This letter was submitted in response to “Re: Managing vulnerable patients.”
1. Province of British Columbia. Adult guardianship act. Victoria, BC; 2020. Accessed 25 August 2020. www.bclaws.ca/civix/document/id/complete/statreg/96006_01.
3. Canadian Medical Protective Association. Is this patient capable of consenting? 2021. Accessed 11 May 2021. www.cmpa-acpm.ca/en/advice-publications/browse-articles/2011/is-this-patient-capable-of-consenting.
4. Canadian Medical Protective Association. Aid to capacity evaluation. 1996. Accessed 11 May 2021. www.cmpa-acpm.ca/static-assets/pdf/education-and-events/resident-symposium/aid_to_capacity_evaluation-e.pdf.
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