I have previously written about committeeships. All adults are presumed to have legal capacity over their personal care and finances, unless the contrary is demonstrated. On hearing an application under the Patients Property Act, the court may declare a person incapable and appoint a committee to manage a person’s care, finances, or both. The application must be supported by the affidavits of two medical practitioners setting out their opinion that the person is incapable.
But what if the proposed patient disputes that they are incapable and opposes the application? What if they refuse to submit to medical examinations and so the person making the application cannot obtain the two affidavits that are required?
This issue is arising with greater frequency. I have previously written about the issue of attempting to force a person to undergo a medical assessment here.
The B.C. Court of Appeal recently considered this issue again in Cepuran v. Carlton 2022 BCSC 76.
The respondent (Sheri) was the only surviving child of the appellant (Ana). When Ana’s husband died, Sheri became concerned about her mother’s health. She observed strange and inconsistent behavior. Ana became concerned that Sheri was becoming too controlling over the management of her affairs. Sheri took steps to protect her mother’s interests using a power of attorney, including transferring her mother’s interests in certain properties into a trust. Ana signed a revocation of the power of attorney.
Sheri applied to be appointed as committee to manage Ana’s affairs. Ana opposed this.
Sheri relied on two affidavits from medical practitioners. Neither of the doctors actually met Ana. Instead, they were instructed to accept as true the descriptions of Ana’s behaviour, as provided by Sheri and other witnesses.
The chambers judge ordered that:
- there be a trial of the issue of whether Ana is incapable of managing her affairs; and
- Ana be required to submit to examinations of her capacity by two geriatric psychiatrists.
Ana successfully appealed both of these orders. As a result, the petition to appoint a committee of her affairs was dismissed.
The Court of Appeal held that it was not enough that the judge was of the view the evidence raised a “serious issue” as to capacity. Sheri failed to provide the required two medical affidavits (a “threshold” requirement for a committeeship order), and so there was no basis for making the order.
The Court was also asked to consider whether the requirement for two affidavits from medical practitioners carries an implicit requirement that the physicians providing the opinions must in all cases personally meet with and assess the person whose capacity is being questioned. In the Court’s view, it is best to leave the admissibility and weight of the medical opinions to be determined by judges on a case by case basis. This leaves open the possibility that an applicant may successfully rely upon an affidavit sworn by a medical practitioner who hasn’t actually met the patient.
This is another recent example of a court recognizing personal autonomy and the intrusive nature of compelling an individual to undergo a medical examination against their will. The courts fully prepared to enforce the strict requirements for a committeeship order.