The British Columbia Court of Appeal, in Temoin v. Martin, 2012 BCCA 250, upheld Madam Justice Fisher’s decision declining to order a medical examination of Lewin Martin for the purpose of determining whether he was capable of managing his affairs. The Court of Appeal released its decision on June 11, 2012.
As I summarized the facts in my earlier post on Madam Justice Fisher’s decision, Lynn Temoin was seeking an order declaring that her father, Llewellyn Martin, was incapable of managing his own affairs. There was evidence that he had memory loss, and she was concerned that his wife, Ms. Temoin’s step mother, was taking advantage of his weakened mental functioning to persuade him to change his will and estate plan to benefit his wife and her children. A psychiatrist examined Mr. Martin, and opined that Mr. Martin had mild dementia and that he did not have capacity to make a will. But the psychiatrist did not conduct an examination of his ability to manage his own affairs.
Ms. Temoin wanted to have an accounting firm appointed to manage her father’s finances, and was seeking the appointment of herself to make personal and health care decisions for him.
Under the Patients Property Act, the Supreme Court of British Columbia may declare a person incapable of managing himself or his affairs, and appoint a “committee” or guardian for that person on the evidence of two physicians. But the Act does not give the Court the power to order a medical or psychiatric examination of someone who is suspected of being incapable. What happens is someone who may be incapable refuses to see a physician for an assessment?
The courts considered two questions. First, does the Supreme Court of British Columbia have the power to order an assessment? If so, when should it exercise that power?
The Court of Appeal agreed with Madam Justice Fisher’s decision that the Court does have the power to order an examination, and also agreed that it should not exercise that power in this case.
The Court held that there is a legislative gap, and the Supreme Court may order an assessment pursuant to its “parens patriae jurisdiction,” which gives the Supreme Court the power to act to protect those who are unable to protect themselves. Madam Justice Neilson wrote:
 Whether a legislative gap exists is a question of legislative intent. The Patients Property Act reveals two objectives, both of which serve the goal of free choice. First, it guards the autonomy of capable individuals by requiring a minimum of two medical affidavits to rebut the presumption of capability. Second, it protects the interests of vulnerable adults whose capacity has been compromised by mental infirmity, and who are therefore incapable of making autonomous choices.
 The legislative framework of the Act, however, presupposes a willing participant in two medical assessments, as well as ready access to two properly qualified physicians. It provides no protection for individuals who appear to be incapable but have no access to physicians, or who refuse to be medically examined. This gap is particularly acute if the refusal to undergo examinations flows from the apparent incapability. In these cases, the requirement of two medical opinions, designed to protect individual autonomy, become an impediment that places individuals who are incapable of making free choices beyond assistance. The inability to order medical examinations to provide an evidentiary foundation for a hearing under s. 3 of the Patients Property Act leaves these individuals without autonomy or protection, and creates a gap that is incompatible with its legislative objectives.
The Court of Appeal also agreed with Madam Justice Fisher that the power to order a medical examination should be exercised cautiously. There is a presumption of law that an adult has capacity unless found to be incapable, and the right to decide whether to undergo an assessment should not be interfered with lightly. In rejecting arguments advanced on behalf of Ms. Temoin that the threshold for ordering an examination should be a low one, Madam Justice Neilson wrote:
 I do not find these arguments persuasive as they fail to recognize the significance of personal autonomy and the serious consequences of an order for committeeship or the intrusive nature of compelling an individual to undergo medical examination against his or her will. As well, a less onerous test has the potential to invite unwarranted harassment and abuse by individuals who bring proceedings under the Patients Property Act for self-serving motives.
 There is considerable support for a high evidentiary threshold in these circumstances. The analysis must begin with the premise that Mr. Martin enjoys the benefit of the presumption of capability. The decisions of this Court in McNeal [v. Few (1975), 63 B.C.L.R. 281 (C.A.)] and Kartsonas [v. Kartsonas, 2009 BCCA 218] affirm the significance of losing personal autonomy to a committee. The Supreme Court in Re Eve advocated a cautionary approach to exercising parens patriae jurisdiction, and emphasized it must be used for the benefit of the person in need of protection, and not to benefit others. That Court has also repeatedly affirmed that the common law should be informed and guided by the values set out in the Canadian Charter of Rights and Freedoms: R.W.D.S.U. v. Dolphin Delivery Ltd.,  2 S.C.R. 573 at 603, 33 D.L.R. (4th) 174; Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129 at 155 (S.C.C.); R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 at paras. 18 and 21,  1 S.C.R. 156. Ms. Temoin’s application unquestionably implicates principles of liberty, autonomy and equality, and Charter values are thus inescapably engaged. Those values are given meaning by requiring a level of proof that is commensurate with both the importance of the individual interests and the seriousness of the intervention at stake.
 Ultimately, the exercise of the parens patriae power is discretionary, and will be governed by the facts of the individual case. Thus, flexibility is required and I decline to endorse one evidentiary standard for all cases of this nature. It is, however, beyond dispute that the applicant must present evidence establishing a serious question to be tried, both with respect to the individual’s capacity and his or her need for protection. In this case, I am satisfied the chambers judge made no error in requiring prima facie evidence of incompetence and a compelling need for protection before she would exercise her parens patriae jurisdiction to make the order sought by Ms. Temoin.
The Court of Appeal held that Madam Justice Fisher had properly found the evidence was insufficient to order Mr. Martin to undergo an examination.
 These circumstances required the judge to consider whether the exercise of her parens patriae powers to order medical examinations would serve Mr. Martin’s interests or those of others. In my view, she properly concluded the evidence was insufficient to establish a compelling need to protect Mr. Martin that justified her intervention. There was nothing to suggest he was personally at risk, or subject to abuse or neglect. The evidence indicated he is financially comfortable, lives with family and caregivers in his own home, and has retained appropriate consultants to assist in managing his business and financial interests. Although the family dispute underlying this proceeding causes him distress, he has apparently remained on good terms and in contact with members of both his first and second families.