Capacity, a power of attorney, and a client who is still driving
Dr. Léa Fortin, C.Psych., is a neuropsychologist in Sudbury. Mr. Kwan, 79, was referred by his family physician after six months of word-finding difficulty, a missed turn on a familiar route, and an MMSE score of 22/30. He lives with his wife, who attends appointments and does most of the talking. Two years ago he signed powers of attorney naming his son David for personal care and property. David, who lives in Calgary, calls Dr. Fortin's office daily asking for "the diagnosis" and has offered to pay extra for a rush report. Mr. Kwan tells Dr. Fortin, "I don't want David to know I'm losing it - he'll put me in a home," and asks that David be told "everything is fine." Mr. Kwan can explain why the assessment is being done, what the tests involve, and what the possible results mean, and he has repeated his wish consistently across two appointments. He is still driving. Dr. Fortin plans a six-hour assessment, wants to include a memory test she last administered in internship, and intends to bill 14 hours including scoring and a family meeting.
1. Is Mr. Kwan capable of consenting to the assessment and to decisions about who receives information? How should Dr. Fortin proceed?
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Capacity in Ontario health law is decision-specific and functional. Under the Health Care Consent Act the question is whether the person can understand information relevant to the decision and appreciate the reasonably foreseeable consequences of deciding or not deciding. It is not a global judgement about diagnosis and it is not an MMSE cut-off. A score of 22/30 raises the question; it does not answer it.
Applied here: Mr. Kwan can explain why the assessment is being done, what it involves, and what the possible results mean, and he has expressed a consistent wish across two appointments. That points to capacity both for the decision to be assessed and for the decision about disclosure. Dr. Fortin should document that specific assessment - what she asked, what he said, and her conclusion - because a capacity finding that is not recorded is hard to defend later.
She should also keep the decisions distinct: consent to the assessment, consent to share information with his wife or son, capacity for personal care, and capacity to manage property are not the same. A dementia diagnosis later does not retroactively make him incapable now, and his prior capable wishes remain relevant if he does become incapable.
On logistics: the six-hour protocol and the 14-hour invoice should be explained and agreed in advance, with an estimate. The memory test she last used in internship should be replaced by an instrument with current norms that she is competent to administer, or used only after retraining and consultation.
2. David demands "the diagnosis" and offers to pay for a rush report. What can Dr. Fortin tell him, and what role does the power of attorney play?
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While Mr. Kwan is capable, the powers of attorney are not engaged. An attorney's authority begins when the person is incapable; until then David is a family member with no greater right to health information than any other third party. Offering to pay for a report creates no access right either - a third-party payor is not the client.
So Dr. Fortin cannot confirm the diagnosis, share scores, or send the report to David without Mr. Kwan's consent. She can acknowledge the call, explain that she cannot discuss the client's information, and offer that if Mr. Kwan wishes David involved, she will contact him. She should ask Mr. Kwan directly what he wants: many clients want a family member told the headline while keeping details private, and that can be arranged with clear, recorded consent. He may also want his wife in the feedback session - that is his decision, not hers.
If Mr. Kwan later becomes incapable of the disclosure decision, David as attorney for personal care would step in as substitute decision-maker under PHIPA and could exercise the access right. Even then, David must act on Mr. Kwan's prior capable wishes and in his best interests, and Dr. Fortin should disclose the minimum necessary rather than hand over the raw file by default. She should record the request, her response, and the consent (or refusal) on which each disclosure rests.
3. Mr. Kwan is still driving and has already got lost. What are Dr. Fortin's obligations regarding risk, and who may receive the diagnosis?
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Two duties pull in different directions, and both need deliberate handling.
The diagnosis: communicating a diagnosis identifying a psychological disorder as the cause of a person's symptoms is a controlled act, and Dr. Fortin is authorized to perform it. The client receives feedback first, at a pace and in terms he can absorb. David does not get the diagnosis unless Mr. Kwan consents or a valid substitute decision-maker stands in.
The driving: a man with progressive cognitive change who has already missed a familiar turn and continues to drive presents a significant risk of serious bodily harm to himself and others. That engages the confidentiality standard's exception for serious risk. Sequence matters: raise it directly with Mr. Kwan, explain the concern plainly, ask him to stop driving and to let her share the relevant findings with his family physician; involve his wife if he agrees. With consent, disclose only what is needed. If he refuses, PHIPA permits disclosure without consent where there are reasonable grounds to believe disclosure is necessary to eliminate or reduce a significant risk of serious bodily harm - minimal, targeted disclosure to the physician or to the person who can act on it, not the whole report.
Document the risk assessment, what was said, what he decided, and the reasoning for any disclosure. She should not assume the family physician or someone else will handle it.