Canada: Closing The Gap? Mental Capacity Assessment Orders In Sandhu (Re), 2022 BCSC 2027

Ordering an adult to submit to an assessment of their mental capacity, without their consent, is an extreme measure.

In 2012, however, the British Columbia Court of Appeal confirmed that such an order could be made in limited circumstances because of a "legislative gap" that existed where a person who appeared to be incapable refused to attend an assessment of their capacity.

Now, a recent decision of Justice Shergill from the Supreme Court of British Columbia indicates that this "gap" may have been filled by new legislation. The decision in Sandhu (Re), 2022 BCSC 2027, means that although the gap may have closed, there may be an open question about how to assist a vulnerable or at-risk adult in certain situations.

Capacity Assessments and the Patients Property Act

The Patients Property Act is part of British Columbia's web of adult guardianship legislation. It allows the Court to declare an adult incapable of managing their affairs (i.e. their financial and legal matters), themselves (i.e. their personal and health care matters), or both. Where such a declaration is made, the adult becomes a "patient" within the meaning of the PPA. If an adult is declared incapable, then the Court may appoint a substitute decision-maker (a "committee") for the adult.

In order for the Court to have jurisdiction to make the declaration of incapacity, however, the applicant must provide opinions from two doctors licensed to practice medicine in British Columbia. The doctors must state that the adult is, because of "(i) mental infirmity arising from disease, age or otherwise, or (ii) disorder or disability of mind arising from the use of drugs" incapable.

But what if the adult refuses to attend an assessment of their capacity? The PPA does not allow the Court to make orders declaring an adult incapable, or directing an examination of the adult's capacity, unless there are already two medical opinions available that the adult is incapable. Prior to 2012, there was little recourse for a person concerned about the capacity of a loved one, if that person refused to attend a capacity assessment.

In Temoin v. Martin, 2012 BCCA 250, the Court held that an order could be made requiring an adult to attend a capacity assessment in certain circumstances, pursuant to the parens patriae jurisdiction of the Court.

Capacity Orders under the Court's Parens Patriae Jurisdiction: Temoin v. Martin

Temoin v. Martin was a case where an adult daughter sought that her father undergo assessments of his capacity, against his will. Recognizing that the Court could not make such orders under the PPA, the daughter argued that the Court could make these orders under its parens patriae jurisdiction instead.

The Court's parens patriae jurisdiction is narrow. It must only be exercised in exceptional circumstances, and in the best interests of the individual whose interests are at issue. It has historically been confined to the protection of children, or adults who have been established to be incapable.

In Temoin, the Court held that there was a gap in the legislation, which presupposes a willing participant in two medical assessments as well as access to two properly qualified physicians. There was no protection for adults who appeared to be incapable, but who refused to be assessed or who did not have access to a qualified physician. Where the refusal is a result of the adult's apparent incapacity, the gap is particularly acute.

The Court in Temoin therefore decided that it was appropriate to extend the parens patriae jurisdiction to circumstances where an adult has not yet been judged incompetent, provided that such authority was used cautiously and on a proper evidentiary basis. An applicant seeking such an order must provide evidence establishing a serious question to be tried with respect to (1) the adult's capacity; and the (2) adult's need for protection.

Changing the Legislative Landscape: The Adult Guardianship Act

Despite this expansion of the parens patriae jurisdiction in 2012, orders requiring an adult to attend an assessment of their capacity appear to be relatively rare, with few reported decisions since Temoin.¹ Since that time, the legislative landscape has shifted.

In Cepuran v. Carlton, 2022 BCCA 76, the Court of Appeal considered, but did not decide, whether this legislative change had closed the gap identified in Temoin. In Cepuran, the Court noted that the Patients Property Act is no longer the only statutory tool to protect vulnerable adults. To the contrary, the Public Guardian and Trustee has authority to investigate concerns relating to the abuse, neglect, or self-neglect of vulnerable adults. More significantly, on December 1, 2014, Part 2.1 of the Adult Guardianship Act came into force.

Part 2.1 of the AGA creates a legislative framework whereby an adult may be assessed for incapacity to manage their financial affairs. If the adult is determined to be incapable, then the Public Guardian and Trustee (the "PGT") may be appointed as a statutory property guardian. To initiate the assessment process, any person can notify the PGT that an adult may be incapable to manage their finances. The Statutory Property Guardianship Regulation sets out the procedure and criteria for assessments of financial incapacity.

In Cepuran, Justice Griffin, for the Court, noted that as a result of these changes, "the legislative context is different today as compared to the situation in Temoin":

[136] ... Where the necessary two medical affidavits required under s. 3 of the PPA cannot be obtained, there exist other statutory mechanisms with built-in safeguards and prescribed procedures for assessing the adult if another person raises questions about the adult's ability to manage the adult's financial affairs, including in the situation where the adult refuses assessment.

Justice Griffin concluded by indicating that she "would expect any case relying on the parens patriae jurisdiction, as the basis for obtaining a medical assessment of an adult who is suspected of being incapable of managing their affairs, to address whether there exists a gap in the available statutory mechanisms".

Sandhu presented such a case.

The Case of Mr. Sandhu

Sandhu (Re), 2022 BCSC 2027, was an application by an adult son for an order that his father attend a mental capacity assessment, against the father's wishes. The son was seeking to be appointed as committee of his father's estate such that he would have authority to make decisions about his father's financial and legal affairs. The son had obtained one opinion that his father was incapable, but did not have the second opinion necessary to engage the Patients Property Act. The application presented Justice Shergill with an opportunity to consider whether, as contemplated in Cepuran, the legislative gap identified in Temoin continues to exist.

Mr. Sandhu was 76 years old. He lived in Richmond with his wife of almost 50 years. The applicant, Mr. Sandhu's son, was 48 and worked as a financial consultant. The applicant had been estranged from his parents from 1999 until early 2002, and then again from 2002 until 2021. The parties' evidence regarding the son's reconnection with his parents differed. According to the son, he learned that his parents had been facing legal difficulties with the City of Richmond regarding their property. He said that he helped his parents find legal representation, and to deal with the issues with the City. For their part, the parents said that their son started coming to their home to assist with renovations.

In July of 2021, Mr. Sandhu fell off a ladder. He was hospitalized for 3 weeks. While Mr. Sandhu was in hospital, the son went with his mother, Ms. Sandhu, to the bank to transfer $103,000 from the parents' line of credit to the son's own bank account. The parties agreed that the funds were to pay for renovations, but the parents said that their son had only used half of the money to pay contractors and had kept the remainder for himself. The son provided evidence about how the funds were used, but certain amounts remained unaccounted for.

In August of 2021, after Mr. Sandhu returned home from hospital, Mr. Sandhu made two complaints to the police about his son. One complaint alleged that the son had pushed his father, though this was denied by the son.

Shortly after the police incident, Mr. Sandhu suffered a fall. The son called an ambulance. Mr. Sandhu said that his son forced him to go to the hospital against his will, even though he felt fine, and while at the hospital, doctors performed a psychiatric assessment. Mr. Sandhu was held in hospital for several weeks under the Mental Health Act.

Evidence of Mr. Sandhu's Capacity

There was evidence before the Court of Mr. Sandhu's capacity.

1. While Mr. Sandhu was in hospital, a geriatric physician, Dr. Chowdhury, assessed Mr. Sandhu. Dr. Chowdhury diagnosed Mr. Sandhu with major neurocognitive disorder, and expressed some concern that Mr. Sandhu's condition was impacting his ability to manage his financial or legal affairs. He did not, however, assess Mr. Sandhu's capacity, and did not provide an opinion that Mr. Sandhu was incapable for use in Court.
2. The medical opinion of incapacity relied on by the son was provided by Dr. Sloan based on an assessment of Mr. Sandhu. Dr. Sloan opined that Mr. Sandhu was incapable of managing his affairs due to mild or moderate neurocognitive disorder, but the judge noted certain concerns with Dr. Sloan's opinion. She noted, for example, that the son had been within earshot during the assessment, and that the information provided to Dr. Sloan by the son, which Dr. Sloan had assumed to be true, painted Mr. Sandhu in a poor light and was contradicted by other information.
3. Sandhu presented a medical opinion of his own from another doctor, Dr. Riar. Dr. Riar provided a detailed report regarding his assessment of Mr. Sandhu, and concluded that Mr. Sandhu was capable.

Notwithstanding the opinion of Dr. Riar, the son filed a petition seeking to declare his father incapable and appointing him as committee for his father. In doing so, the son also sought an order that his father attend at an assessment of his capacity.

Mr. Sandhu's Functioning and Wishes

In the summer of 2022, Mr. Sandhu suffered another fall, this time down the stairs. Mr. Sandhu sustained several broken bones and was hospitalized for about one month. Since his fall, his wife had been taking care of their finances, with help from family members as needed.

Even though Mr. Sandhu was largely bedridden, he was able to take steps to implement his wishes. He granted an enduring power of attorney and representation agreement to his wife's brother-in-law. The decision indicates that Mr. Sandhu did so "because he is vehemently opposed to [his son] acting on his behalf" (para. 35). He did not trust his estranged son and did not want him to deal with his personal or financial affairs. If necessary, he wanted his wife or other family members to assist him.

Against this backdrop, Justice Shergill considered whether to make an order that Mr. Sandhu submit to an assessment of his capacity.

A Legislative Gap?

Justice Shergill began her analysis with reference to Justice Griffin's discussion in Cepuran regarding whether the legislative gap identified in Temoin continued to exist. She concluded that the son had "failed to demonstrate that there exists a legislative gap that would support the Court intervening to exercise its parens patriae power in this case". Instead, the Adult Guardianship Act and the Statutory Property Guardianship Regulation provide adequate tools to address the son's concerns. As was acknowledged by the son, this framework empowers the PGT to authorize an assessment of Mr. Sandhu.

Despite this concession, the son argued that the Court should intervene. The Court's intervention was warranted, he said, because the PGT had refused or failed to have Mr. Sandhu assessed. The judge rejected this argument:

[60] The fact that the PGT has not exercised its discretion to have Mr. Sandhu assessed under s. 32(1)(b) of the AGA does not mean that there is a legislative gap. It simply means that the PGT has determined that the circumstances of this case do not warrant its intervention. It is entitled to come to that conclusion.

In other words, the judge held that the legislative gap identified in Temoin has been closed by the coming into force of the AGA and the Statutory Property Guardianship Regulation. That the PGT declines to authorize an assessment under those new tools does not mean there is a "gap".

No Need for Protection

Though this conclusion was sufficient to dispose of the son's application, the judge went on to consider whether, in the event she were wrong about the closure of the legislative gap, a Temoin order was warranted. She answered this question in the negative, holding that the son had failed to establish that there were serious questions to be tried as to Mr. Sandhu's incapacity and need for protection.

The judge summarized the son's concerns about his father as follows:

[62] The concerns raised by the petitioner are essentially that his father: (1) has exhibited hoarding and erratic behaviour; (2) has been belligerent; (3) has allowed himself to have been used by others to his financial detriment by making bad financial investments; and (4) has allowed himself and his spouse to be embroiled in litigation with the City of Richmond, to the point where he has breached court orders and findings of contempt have been made against him.

Mr. Sandhu's Capacity

The son relied on the opinions of Drs. Sloan and Chowdhury, taken together with his behavior, as prima facie proof that Mr. Sandhu was incapable.

The judge observed that the issue at this stage was not whether Mr. Sandhu actually was incapable, but whether the evidence justified an inquiry into his capacity. Even so, the judge found that the evidence fell short. Dr. Chowdhury's assessment was more than a year old and was inconclusive. Though Dr. Chowdhury had raised some possible concerns for Mr. Sandhu's capacity, the doctor had not assessed Mr. Sandhu for this issue and was not able to provide any opinion about Mr. Sandhu's capability to manage his own affairs.

As for Dr. Sloan, the judge considered that she was unable to place much weight on his opinion. It was similarly dated, and several assumptions upon which the opinion was based were controverted, out of context, and provided by the son, whom the judge described as being adverse in interest. Furthermore, there was the opinion of Dr. Riar, who had comprehensively assessed Mr. Sandhu, in Mr. Sandhu's native language (as opposed to through an interpreter, as Dr. Sloan had done).

The evidence fell short of establishing a serious question to be tried regarding Mr. Sandhu's capacity.

Need for Protection of Mr. Sandhu

The judge similarly concluded that the evidence failed to establish a serious question to be tried as to Mr. Sandhu's need for protection.

The judge viewed the son's allegations that his father exhibited hoarding and erratic behaviour with caution, noting that she had doubts about the son's veracity and intentions. She also considered that, "The petitioner is adverse in interest to [Mr. Sandhu], has been estranged from [Mr. Sandhu] for the better part of 20 years, and has inserted himself into the lives of his parents against their wishes" (para. 70). She also pointed to evidence that the son had taken documents from his parents' home without their permission, acted unilaterally in relation to their valued possessions, and convinced his mother to give him a bank draft for a substantial amount of money without providing a full accounting.

In addition, it was not relevant that Mr. Sandhu had initially agreed to a further assessment – Mr. Sandhu was entitled to change his mind. Further, the fact that Mr. Sandhu had significant health concerns and had been involved in legal disputes did not mean he was in need of protection. Mr. Sandhu was living with his wife, in his own home, and was financially comfortable. He had sought the assistance of appropriate people to help him as needed.

The judge concluded that there was "nothing in the evidence before [her] that would warrant the extraordinary intrusive remedy" of ordering that Mr. Sandhu attend an assessment of his capacity, against his will.

Filling the Gap?

Sandhu is an important development in capacity law in British Columbia. For 10 years, Temoin has stood as authority for the proposition that the Court may exercise its parens patriae jurisdiction to order that an adult attend an assessment of their capacity where there is evidence of a serious question to be tried as to the adult's capacity and their need for protection. With Justice Shergill's decision in Sandhu, following on the discussion of Justice Griffin in Cepuran, that authority appears to no longer stand.

Though it is true that the coming into force of the Adult Guardianship Act has changed the statutory landscape, it remains to be seen whether this framework has effectively filled the "legislative gap" identified in Temoin. Sandhu indicates that where the PGT declines to authorize a capacity assessment, a concerned family member may be without recourse. This may be problematic where, for example, the PGT's reasons for declining to order such an assessment may not be based on a complete picture of the adult's functioning. In addition, where the PGT is provided with medical information regarding the adult, there may be concerns with the quality of that evidence. For example, if the medical opinion is based on inaccurate information provided by the adult or others, or if the medical practitioner in question is not qualified to assess mental capacity, the PGT's decision not to authorize an assessment may be based on flawed information.

Finally, it does not appear that s. 62.2 of the Adult Guardianship Act was addressed by the parties or by the judge in Sandhu. On its face, s. 62.2 preserves the parens patriae jurisdiction of the Court:

Supreme Court jurisdiction

62.2 (1) Nothing in this Act

1. limits the inherent jurisdiction of the court to act in a parens patriae capacity, or
2. deprives a person of the right to ask the court to exercise that jurisdiction.

Another Court may therefore need to reconcile whether the Adult Guardianship Act has removed the parens patriae jurisdiction to make orders for capacity assessments, in circumstances where the AGA itself appears to specifically preserve such jurisdiction.

Though it is true that the Adult Guardianship Act has provided new tools to assist vulnerable adults, the exclusion of the Court's parens patriae jurisdiction to order capacity assessments may result the very problem identified in Temoin: an individual who appears incapable, without access to a doctor or who refuses to be assessed, may be left unprotected, without there being a legal remedy to allow a concerned family member to assist.

Footnote

1. For one of the rare examples of a Temoin order being made, see the decision of Justice Pearlman in Singh (Re), 2017 BCSC 984.

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