Why consistency matters when the stakes are human autonomy
Imagine two professionals, each highly experienced and acting in good faith, assessing the same individual on the same day. One concludes the person has the capacity to make a significant financial decision; the other concludes they do not.
The discrepancy is not necessarily the result of negligence or incompetence. It may instead reflect a deeper challenge that has long existed within capacity assessment sector: the absence of a consistently applied, interdisciplinary framework for evaluating one of the most complex questions professionals encounter.
Few determinations carry greater consequences. A capacity opinion may influence whether an individual can manage their finances, instruct legal counsel, execute estate planning documents, make healthcare decisions, maintain control over their housing arrangements, or exercise other fundamental rights. When the outcome is incorrect, the consequences can be profound and sometime even irreversible – causing damage to not only the individual themselves but also the professional who is expected to protect the people they work with from exploitation or harm.
The responsibility placed on legal professionals, along with financial advisors, physicians, assessment professionals, fiduciaries (including trust companies), and the businesses that vulnerable people work with, is enormous. Yet historically, the procedures supporting those decisions have significant discretion based on the experience and intuition of each professional for its own methodologies, training pathways, standards, and perspectives.
That reality raises an important question: What would these procedures look like if it were built from the ground up using principles of evidence, standardization, quality assurance, and interdisciplinary collaboration that guide other mature professional disciplines?
For Nathan Spaling, founder of Capacity Clinic and co-founder of the Canadian Centre for Decision-Making Capacity, and Dr. Richard Shulman, Geriatric Psychiatrist and expert witness for the courts on decision-making capacity disputes, that question became the foundation for a broader mission.
“The goal is to support professional judgment with an improved structure using evidence, and greater consistency so that individuals receive fair, reliable, and defensible assessments regardless of who conducts them,” Spaling says.
Capacity assessment exists at the intersection of multiple disciplines
Capacity is not solely a legal question, nor is it solely a medical, psychological, financial, or social one. In practice, it often sits at the intersection of all of them. Put differently, each professional sector may contribute a valuable piece of analysis to prevent the misidentification of the outcome of an assessment.
However, typically these assessments or situations are completed without support of other interdisciplinary professionals – making it more complex to opine on the outcome of all the risk factors present. This reality creates an inherent challenge. When professionals operate primarily within siloed frameworks, even highly qualified individuals may reach different conclusions based on the information available to them, the tools they use, and the lens through which they view the situation.
The issue is not a lack of expertise; the issue is variability. And where variability exists, so too does the risk of inconsistent outcomes.
“When decisions involve a person’s quality of life – such as their health, finances, legal rights, housing, estate planning, or personal relationships – consistency matters,” Spaling explains. “The consequences of getting it wrong can be significant and, in some cases, irreversible.”
Increasingly, courts, regulators, families, and institutions expect decisions affecting vulnerable individuals to be supported by clear evidence, thorough documentation, and transparent reasoning. Capacity assessment should be no exception.
The origin of Capacity Clinic
These realities led to the creation of Capacity Clinic launched January 1, 2021.
Initially, the need emerged from legal practice. Lawyers frequently encounter situations involving testamentary capacity, capacity to instruct counsel, gifting capacity, and other common law capacity questions that often fall outside traditional healthcare-based assessment pathways.
However, as the team worked through increasingly complex files, a larger truth became evident. A legal solution alone was not enough. Many matters involved overlapping considerations that could not be adequately understood from a single professional perspective.
Rather than building another silo, Capacity Clinic pursued a different path. From the outset, the organization assembled an interdisciplinary team of legal, medical, and clinical assessment professionals united by a common objective: improving the consistency, transparency, and quality of capacity evaluations by using standardized procedures to gather data and interdisciplinary support to analyze the appropriate way to respond to it.
“The most complex files rarely fit neatly into one profession's domain,” says Spaling. “The best assessments are often the result of structured collaboration among professionals who bring different expertise to the same question.”
Moving beyond individual judgment alone
Professional judgment remains indispensable. But judgment is strongest when supported by evidence-based processes. With that principle in mind, Capacity Clinic undertook an extensive review of the scientific literature, professional guidance, legal principles, and clinical practices related to decision-making capacity assessments.
The objective was straightforward: Reduce unnecessary variation without reducing professional independence. That work led to the development of standardized procedures addressing four critical stages of the assessment process:
- Systematic information gathering before the assessment
- Structured interviews during the assessment
- Consistent documentation and analysis of finding/observations
- Standardized reporting frameworks for communicating conclusions
The intention was not to create a rigid checklist capable of replacing professional expertise. Rather, it was to establish a process that ensures important information is considered consistently, documented transparently, and analyzed within a defensible framework.
The result is greater reliability, greater transparency, and greater confidence in the integrity of the assessment process.
What the evidence continues to demonstrate
As Capacity Clinic's work evolved, several important themes emerged. First, decision-making capacity is not a memory test. Although cognitive impairment may be relevant to the assessment process, capacity cannot be reduced to a cognitive screening score or diagnosis. Individuals may experience memory challenges and still may retain the ability to make specific decisions.
Second, capacity is not a diagnosis. Diagnoses may increase the likelihood that assessment is warranted, but diagnoses do not determine capacity, people do. Capacity remains fundamentally functional, decision-specific, and contextual.
Third, interdisciplinary collaboration consistently improves assessment quality. Many of the most challenging matters involve a combination of health concerns, social vulnerabilities, family dynamics, financial complexity, risk factors for undue influence, and legal considerations. Bringing multiple perspectives together within a structured framework strengthens both the quality of information collected and the defensibility of resulting opinions.
Finally, the team's growing data set revealed recurring patterns associated with vulnerability and impaired decision-making. Those observations contributed to the development of structured screening methodologies designed to help professionals identify when further assessment should be considered.
Toward a more consistent national approach
Over time, Capacity Clinic’s work expanded beyond individual assessments as the broader challenge became increasingly clear: the development of a widely adopted framework or procedures that enables stakeholders to identify predictive factors and values of incapacity and develop an appropriate way to respond to them.
Spaling is clear that this work is not a criticism of existing professionals or existing systems. On the contrary, the field benefits from extraordinary expertise. The opportunity is to better connect that expertise and build trust with the people living in vulnerable situations that their autonomy will be preserved or protected appropriately.
The future of capacity assessment will emerge from the development of shared principles, common terminology, evidence-based procedures, and interdisciplinary collaboration that reduce unnecessary variability while respecting jurisdictional and professional differences – this is what makes Capacity Clinic’s dataset so unique.
That vision has led to ongoing collaboration with professionals and organizations across the country to advance the development of a Pan-Canadian Capacity Assessment Framework. The goal is not uniformity for its own sake. The goal is more consistent outcomes that ensure vulnerable individuals receive appropriate protection when necessary while preserving autonomy whenever possible.
A matter of trust
Canada's aging population, increasing wealth transfers, growing prevalence of cognitive disorders, and rising complexity of substitute and supported decision-making arrangements will continue to place pressure on professionals across every sector. The demand for defensible, transparent, and consistent capacity assessment will only grow.
Ultimately, this conversation is about more than assessment methodology. It’s about trust. Trust that a plan does not rely on individual subjectivity. Trust that autonomy will not be restricted without justification. Trust that vulnerability will not be overlooked. Trust that professionals making some of society's most important decisions are supported by evidence, consistency, and interdisciplinary collaboration.
“At its core, this work is about ensuring that decisions affecting a person's autonomy are informed by evidence rather than experience and intuition,” says Spaling. “When we improve consistency, we improve fairness. When we improve collaboration, we improve outcomes. And when we do both, we strengthen trust in the systems designed to protect and empower vulnerable people.”
Capacity Clinic is excited to work with estate/incapacity planners, substitute decision makers and Canadian businesses working with substitute decision makers to help create clear pathways/procedures and resources that help to earn the trust of vulnerable people – backed by data.
This article was produced in partnership with Capacity Clinic
