Deciding who decides: the assessment of mental capacity in Canada

15 Dec


Gavin Davidson, a lecturer in social work in the School of Sociology, Social Policy and Social Work, recently returned from a research visit to Canada funded by the Winston Churchill Memorial Trust ( A new law, the Mental Capacity (Health, Welfare and Finance) Bill is planned for Northern Ireland to provide a much needed legal framework for people whose decision making capacity is impaired. In most jurisdictions, including within the rest of the UK, there are separate laws covering mental health and mental capacity. In Northern Ireland it is proposed that there will be no longer be a separate law for people with mental health problems and the Mental Capacity Bill will apply, in a non-discriminating way, to everyone who has impaired decision making capacity. This approach would be unique but some states in Canada have elements of it and so Gavin visited two such states, Ontario and Saskatchewan.  There he spoke with researchers, practitioners, advocates and policy makers about how having capacity as a gateway criterion for substitute decision making works in practice.  In general this approach appears to work well in these Canadian states and provides an appropriate level of protection for people who are able to make decisions about their own lives as well as a comprehensive framework for making decisions for those who cannot.  In Northern Ireland there is the opportunity to learn from these systems, such as their review processes, and perhaps provide an even more accessible and coherent framework. One particularly important aspect of the framework for Northern Ireland will be consideration of how people can be supported to make their own decisions before any form of substitute decision making is considered. It is anticipated that the draft Mental Capacity (Health, Welfare and Finance) Bill will be published for consultation during 2012 and, as well as the potential benefits and protections, it will be important to consider the complex range of issues this new approach may raise. If anybody is interested in this area, Gavin is happy to discuss these issues and can be contacted at    

You can also listen to a podcast discussion between Gavin and Dr Nancy Hansen Director of the Interdisciplinary Master’s Program in Disability Studies at the University of Manitoba on this topic, which was recorded at the School of Sociology, Social Policy and Social Work at Queen’s in November 2011:


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