Mr. Finn Keyes:

On whether consent has changed, the answer is "No". Consent is not defined under the Assisted Decision-Making (Capacity) Act. It remains as it was. What has changed is the definition of "capacity" and how we assess capacity. Under the new Act, we assess it on a functional basis, so people have capacity to make certain decisions and not others and they have capacity to make certain decisions at different times and not others as opposed to the previous all-or-nothing approach where if someone was deemed to not have capacity the High Court, wardship then stepped in and exercised a fairly paternalistic jurisdiction. There is now an attempt to draw out a person's will and preferences from them insofar as is possible and to allow them to make decisions by themselves. A functional assessment of capacity would include how big the decision is. That goes into, for instance, their ability to weigh the information and to make a determined choice on it.

The framework for assessing capacity already accounts for how serious and weighty the decision is. Whether the committee would want to make further safeguards regarding how that is assessed is another matter. Where a person lacks capacity entirely also needs to be considered. The question of how we make decisions about assisted dying where a person lacks capacity entirely is an important one. Does it fall to a court and what do we decide then? These are some of the issues that need to be addressed.

The Senator mentioned putting a delay on probate and restrictions in that regard. Under the assisted decision-making Act, there are restrictions on people who can act as decision making assistants, co-decision makers and decision making representatives. These are people who either assist people in making particular decisions or make decisions on their behalf by virtue of court order. There are restrictions in the Act that such a person cannot have been convicted of offences of dishonesty and cannot be a financial beneficiary in the event of the person's death. Safeguards exist and perhaps the committee might wish to draw upon those in assessing what further safeguards might be required. Dr. Campbell might have further thoughts on that.