As is evident throughout this Interim Report, legal capacity, decision-making and guardianship laws raise many difficult issues. Entangled as these laws are in the broader social contexts surrounding aging and disability, family caregiving, and delivery of health and social services, they present challenging ethical and practical questions. They also raise issues of fundamental rights for individuals who are very frequently vulnerable or marginalized. Consultees have emphasized to the LCO the gravity of the issues at stake in reforming these laws, and the seriousness of society’s responsibility to those affected. The LCO has taken this message to heart, and has attempted to craft recommendations that respond to the circumstances of those affected and that respect and promote their rights and wellbeing.
At the same time, the LCO has recognized the constraints surrounding reform of these laws, including fiscal restraints for government and key institutions, competing needs among stakeholders, and, in a number of areas, a lack of a clear evidentiary base on which to proceed.
There are two ways of approaching the implementation of the proposed reforms in this Interim Report. The first approach addresses the comprehensive impact and ultimate goals of the draft recommendations. As an aid to implementation and as part of its progressive realization approach to law reform in this area, the LCO has below identified key priorities for reform, those draft recommendations which have the greatest potential to substantially transform this area of the law and address the most serious, systemic issues. The second approach provides a practical framework for how to achieve this comprehensive reform over time. For this purpose, the LCO has identified draft recommendations which are relatively straightforward to implement, and so can be addressed in a shorter time frame, as well as those which require more time, thought or resources for implementation. These are discussed in section 3 below, and a full listing provided in Appendix B. The LCO’s identified priorities are not necessarily among those draft recommendations that are simplest to implement: the timeframes are not a reflection of priorities, but an acknowledgement of the challenges of reform. Institutions which are the subject of the LCO’s draft recommendations might choose to focus first on priority recommendations, or on first addressing more straightforward changes while working towards more challenging reforms.
A. Key Priorities for Reform
In this Interim Report, the LCO has made over fifty draft recommendations for reform to laws, policies and practices: a summary of these draft recommendations, organized by topic, can be found in Appendix A. Among these many draft recommendations, the LCO gives priority to those that most substantially and systemically address the key themes identified in Chapter I of reducing unnecessary and inappropriate intervention, improving access to the law, and enhancing the clarity and coordination of the laws. The LCO has identified as high priorities the following three sets of draft recommendations:
Expansion and reform of the Consent and Capacity Board to create an expert, independent, specialized administrative tribunal able to provide flexible, accessible and timely adjudication with respect to appointments of substitute decision-makers, resolve disputes related to the roles of these decision-makers, and enforce the rights under the legislation (Chapter VIII). In the view of the LCO, many of the shortfalls in the current system arise from the inaccessibility and inflexibility of the current rights enforcement and dispute resolution mechanisms under the Substitute Decisions Act, 1992, and an expanded administrative tribunal provides the most viable means of addressing these issues.
Relevant draft recommendations: 24-26, 32 – 33
· Transferring jurisdiction over the creation, variance and termination of guardianship appointments, and of the review of accounts and provision of directions regarding powers of attorney from the Superior Court of Justice to the CCB;
· Reforming the composition and rules of procedure of the CCB to strengthen its expertise and tailor its processes for this new jurisdiction, including reconsideration of current time limits for adjudication;
· Broadening the power of the CCB to provide directions with respect to the wishes of the person and to determine compliance with a substitute decision-maker’s obligations; and
· Development of a pilot project to develop a specialized mediation program at the CCB.
These reforms would not only enable more meaningful responses to widespread concerns regarding abuse and misuse of substitute decision-making powers, but would enable the application of a more tailored and limited approach to guardianship through the reforms proposed in Chapter IX and highlighted below.
Strengthening information and education for individuals affected, families and professionals and service providers involved with legal capacity and decision-making law (Chapter XI): it was clear to the LCO during public consultations that this area of the law is poorly understood. The complexity of the law makes this lack of knowledge and comprehension understandable, but in practice it leads to systemic shortfalls in the implementation of the law. Without better understanding of the law, not only is the current law poorly implemented, but any reforms would face the same challenges.
Relevant draft recommendations: 45 – 54
· Creation of a clear statutory mandate for coordination and development of education and information initiatives, strategies and materials, addressing the needs of persons directly affected, substitute decision-makers and supporters, professionals and service providers;
· Development of a central, coordinated clearinghouse of information for substitute decision-makers and supporters, in plain language and in a variety of accessible formats;
· Empowering adjudicators to require a guardian or person acting under a personal appointment to obtain education on specific aspects of her or his duties and responsibilities;
· Professional educational institutions and the health regulatory colleges re-examine their requirements and curricula in this area, and consider strengthening coverage of issues related to this area of the law.
Improving the quality of assessments of capacity and promote access to basic procedural rights for those found incapable under the Health Care Consent Act, 1996 (Chapter V): the LCO was gravely concerned about the widespread lack, in practice, of basic procedural and quality assurance protections for individuals whose fundamental rights to make determinations for themselves are being removed. These recommendations would improve understanding of the law among those responsible for administering assessments and providing rights information, strengthen access to the law for those found to be lacking legal capacity under the HCCA, and reduce inappropriate use of substitute decision-making under that Act.
Relevant draft recommendations: 8 – 14
· Creation of official Guidelines for assessments of capacity under the HCCA;
· Development of statutory minimum standards for the provision of rights information under the HCCA:
· Exploration of means of providing independent and expert advice about rights to persons found incapable under the HCCA;
· Strengthening oversight and supports for rights information provision through existing institutions, such as Health Quality Ontario, the Local Health Integration Networks and the monitoring and quality control systems for long-term care; and
· Monitoring and evaluating these reforms with respect to their success in administering assessments of capacity and respect for procedural rights.
B. Other Areas of Focus
The realization of the priorities through the draft recommendations identified above would have a transformative effect throughout this area of the law: addressing the priorities would have an overarching impact on multiple aspects of the law. The identification of these high priority recommendations does not detract from the significance of addressing concerns related to more specific issues, especially those regarding safeguards against abuse, and reducing or tailoring the use of guardianship. Concerns about these issues were raised by a wide range of stakeholders from the inception of this project, and identified as central to the effective functioning of this area of the law. They are profoundly connected to the values underlying the law, and addressed by the Framework principles.
Reducing or tailoring the use of guardianship (Chapters VI, IX): One of the central underlying aims of Ontario’s current laws regarding legal capacity, decision-making and guardianship is to avoid unnecessary or inappropriate intervention, and to preserve to the extent possible the autonomy of individuals whose decision-making abilities are impaired. Guardianship is intended as a last resort. In practice, however, there are significant shortfalls in Ontario’s current law, whether because of implementation challenges, or a lack of options to meet the diversity of needs among those affected by these laws.
Relevant draft recommendations: 18 – 20, 34 – 40
· Incorporating and clarifying a human rights accommodation approach into the assessment of legal capacity and the responsibilities of service providers;
· Creation of statutory personal support authorizations for day-to-day, routine decisions related to property and personal care, to enable persons who can make decisions with some assistance to appoint persons to provide them with such assistance;
· Examination of the practicalities of a statutory legal framework for network decision-making;
· Strengthening the provisions of the Substitute Decisions Act regarding the consideration of less restrictive alternatives prior to the appointment of a guardian;
· Replacing the statutory guardianship process with applications to the Consent and Capacity Board for appointment of a guardian, in association with the implementation of the draft recommendations for expanded jurisdiction for the CCB;
· Strengthening opportunities for review of guardianship appointments and for the creation of time-limited appointments;
· Enabling adjudicators to make appointments for limited property guardianships where appropriate; and
· Enabling adjudicators to appoint a representative for a single decision.
Strengthening safeguards against abuse (Chapter VII): While powers of attorney provide a flexible and accessible means of planning for future needs, as private documents they are also susceptible to misuse and abuse, and indeed, concerns are rife regarding inappropriate or outright abusive use of these documents by those appointed under them. The LCO has proposed reforms intended to bring greater transparency and accountability to these instruments, while maintaining their simplicity and ease of use.
Relevant draft recommendations: 21-23
· Requiring persons accepting appointment under a power of attorney or personal support authorization to sign, prior to acting under such an appointment, a Statement of Commitment that sets out their statutory responsibilities, the consequences of failure to fulfil these responsibilities, and their acceptance of these responsibilities and consequnces;
· Requiring persons acting under a power of attorney to issue, at the time they begin to exercise their authority, a Notice of Attorney Acting to specified individuals;
· Creating a statutorily-based option for persons creating a power of attorney (and a requirement for persons creating a support authorization) to name a monitor with responsibilities for making reasonable efforts to determine whether the appointed person is complying with the statutory requirements for that role.
C. Timeframes for Implementation of Reforms
In keeping with a progressive realization approach to the draft recommendations, the LCO recognizes that some changes are more difficult, and will take a longer time to bring about. Appendix B identifies recommendations which are fairly straightforward to implement and therefore could be addressed in a relatively short time-frame, those that are somewhat more complex or costly, and those that require significant time, resources or consideration to implement. As was noted above, the allocation of draft recommendations to particular timeframes does not reflect their level of priority, but rather their ease of implementation. This categorization is intended to assist with a step-by-step approach to comprehensive reform.
Short-term draft recommendations are ones that could be implemented immediately, or very soon. They include recommendations that are relatively straightforward, for example, involving clarification of legislation. They can be implemented at a relatively low cost, and either do not require legislative amendments or the necessary amendments to the legislation could be made without significantly opening up the relevant statute.
Medium-term draft recommendations include those that either require some investment of resources, or involve sufficient complexity that some significant further work is required to draft effective legislative provisions. Medium-term draft recommendations therefore cannot be implemented immediately, but should be undertaken as soon as resources or time permit.
Long-term draft recommendations are those that involve challenging or novel issues. Their implementation may be predicated on the prior implementation of other draft recommendations or may require further research or consultation. Work towards these draft recommendations should begin, but with the recognition that some time may be required to identify effective approaches to implementation.
There are a number of draft recommendations which are fairly low-cost and straightforward, and could be implemented in a relatively short period of time. These include recommendations which aim to clarify the law and therefore strengthen its implementation. While unlikely to be transformative on their own, they may assist with the broader effort to improve the effectiveness of these laws. These include the draft recommendations in Chapter III regarding clarification of the purposes and principles of the law, the draft recommendations in Chapter III regarding the duty to accommodate in the assessment of capacity, and the draft recommendations in Chapter VI regarding the duties of substitute decision-makers.
The implementation of some draft recommendations will require effort over a period of time. For example, it is the view of the LCO that guardianship by the Public Guardian and Trustee should be focused on those individuals who require its expert, specialized and trustworthy services to receive appropriate substitute decision-making. Statutory guardianship, which makes the Public Guardian and Trustee the guardian of first resort for many individuals, is ultimately incompatible with the underlying principles of the legislation, and places an undue burden on the PGT, which could more effectively focus its efforts elsewhere. However, the LCO recognizes that statutory guardianship is fundamental to the current statutory scheme, and that its removal could not be accomplished overnight. Draft recommendations related to the end of statutory guardianship and a re-focussed role for the Public Guardian and Trustee have been therefore identified as long-term efforts.
The use of professional representatives and of community organizations as substitute decision-makers may offer an opportunity to broaden the options available to individuals, better address the needs of some groups of individuals, and more effectively focus the work of the PGT, and should be further explored. However, a careful examination is required of the costs and benefits of a properly supervised system of professional substitute decision-makers, an analysis which government is in the best position to undertake. Draft recommendations in this area have also been identified for long-term implementation.
The LCO urges government, should it undertake reforms of legal capacity, decision-making and guardianship law, to incorporate into its approach mechanisms for monitoring the effect of its reforms. As has been highlighted throughout, the issues are challenging and multi-dimensional, and the affected population is often vulnerable. The current legislation has been hampered in its effectiveness by a range of implementation issues: an active monitoring of the impact of reform would allow adjustments to be made as needed.
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