Assessing mental Capacity

This section provides healthcare practitioners information about assessing a person's capacity to make healthcare decisions.

For more information, practitioners should refer to the reference guide,  the Health Care Consent Act, 1996 and the Ontario Consent and Capacity Board.

On this page:





Anchor Image

Preparing to evaluate a person's capacity for treatment and personal care decisions

  1. Ensure the most appropriate healthcare provider is conducting the capacity assessment. This would be the provider who is proposing the treatment plan, their designate or one provider on behalf of a team.
  2. Get the facts – review the case well to understand the medical facts including previous cognitive and psychological assessments. Discussions with other healthcare providers involved with the person’s care and family may provide relevant information.
  3. Learn about the person – practice cultural safety and invite them to share information that may influence the way they make decisions.  
  4. Know the law and legal requirements of consent and capacity as set out in the Ontario Health Care Consent Act, 1996.
  5. Prepare questions that address a person's understanding and appreciation of the proposed treatment plan.
  6. Avoid pre-formed judgement. Give the person the best chance of passing a capacity assessment.
  7. Acknowledge biases - people are allowed to make decisions contrary to medical advice. This assessment is to determine that they are following a well reasoned and logical thought process to get there. Healthcare providers assess the decision-making process and not the decision itself. 



Anchor Image

Conducting a capacity assessment for treatment and personal care decisions

  1. Inform the patient of the purpose of the assessment (i.e. to determine their capacity for making this specific treatment decision) and what will happen if they are found incapable.
  2. If family wishes to be present, explain to the person and their family that it is only the person who can answer the questions.
  3. Use simple language and a translator if required (preferably not a family member).
  4. Ask the same question multiple ways to ensure consistency of response.
  5. Take notes during the assessment. Record questions and the person's responses verbatim in the chart.
  6. Assess the person’s understanding and appreciation of the decision:
    1.  Illness understanding, progression and why treatments are being offered
    2.  What the choices are and the benefits and burdens of each
    3. That a decision does need to be made and there are multiple options
    4. The person grasps the personal consequences of the treatment options.
  7.   Explore the decision-making process
    1. Is it well reasoned? (not the same thing as a reasonable decision). Capable people can make decisions that the healthcare practitioner disagrees with.
    2. Is it consistent with reality, the person’s values and beliefs?



Anchor Image

Ending the capacity assessment

  1. Inform the person of your finding.
  2. If you have found the person incapable, explain:
    1. That their right to make this decision has been taken away from them.
    2. The finding only applies to this specific decision.
    3. They have the right to contest the decision and that you will provide them with advice on how to do this.
    4. if they do not contest the finding of incapacity, you will ask their substitute decision maker to make the decision.
  3. Document the finding in the person's chart, including your reasons for the finding.
  4. Document that you have provided advice to the person on how to contest the finding and whether or not they plan to.
  5. The person has 7 days to contest the finding.



For more information

Ontario Consent and Capacity Board

Advocacy Centre for the Elderly: Who assess capacity under what circumstances?