How do we formulate the duties to ensure people have supports to maximize exercise and enjoyment of their autonomy and legal capacity? There are two broad classes of parties implicitly and explicitly identified in the language of the CRPD. First, States Parties have an obligation to take “appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (Article 12(3)). Second, States Parties have an obligation to “take all appropriate steps to ensure that reasonable accommodation is provided” (Article 5(3)). The latter obligation also implicates third parties to decision-making processes. How do these obligations of both States Parties and other third parties intersect in a particular decision-making process to maximize exercise of legal capacity? What is the positive duty of the state? What is the duty of third parties?
In this section we articulate the legal duties to accommodate of both the state and third parties in relation to supports. The accommodation and supports framework described in this section is somewhat novel but builds upon the firm foundation of Canada’s human rights laws and the Charter. In order to implement this framework, relevant provisions would need to be incorporated into all legal capacity-specific legislation and apply to all interactions where capacity is in question.
A. What Does Accommodation in Decision Making Mean?
People plan their lives on the basis that they have a right to live as they choose. In contrast, an individual who has been found to be legally incapable does not have the freedom to make his/her personal choices; decisions are imposed by others. Reasonable accommodation is required to avoid such differential treatment. It maximizes a person’s right to prove his/her ability to make capable decisions, demonstrate his/her capacity to others and thus exercise legal capacity on an equal basis with others.
Accommodation can be relevant whenever an individual interacts with a third party. An individual with an intellectual disability may not, at the outset, understand the content of the information exchange between him/herself and the third party. For example, he/she may not understand the attendant risks of a medical procedure, the implications of opening a bank account or the meaning of a power of attorney. There are a broad range of accommodations that may be required to enable a person to understand information sufficiently to make these kinds of decisions, including:
· informal assistance from family and friends;
· plain language assistance, assisted/adaptive communication, visual aids, etc.;
· supported decision-making representatives/networks; and,
· interpreters (sign and spoken language) and intervenors (for people who are deaf-blind).
What follows are two illustrations of the manner in which supports accommodate a person to make her own decisions, without which she might be unable to do so. These scenarios relate to Jane, who has an intellectual disability.
· Jane would like her mother to do her banking for her. For her mother to have the legal authority to do so in Ontario, Jane could make a power of attorney but would need to meet the legal test of capacity to do so. This would require her to understand what a power of attorney is and what the implications are of making one. If, at the outset, a lawyer asks Jane what a power of attorney is and what the effect of making one is, the lawyer may conclude that she does not meet the test of capacity to make one. This is because, when in the lawyer’s office, Jane feels intimidated by a person of authority, is not able to explain a power of attorney in her own words, looks at the lawyer blankly and prefers to talk about her upcoming vacation. In general, Jane expresses herself using words and gestures that strangers do not know how to interpret, but which are meaningful and clear to people who know her well. It is likely that if her best friend explains the concept of a power of attorney in language that she understands, and does so at her pace in non-intimidating surroundings, she will learn the meaning and implications of the document. In this way, accessing supports provides her with the vehicle to exercise and demonstrate her capacity. The supports accommodate her to make decisions equally with others.
· Jane’s doctor believes she needs a medical procedure. Providing accommodation in the form of supports may require the doctor to give her some written material in plain language which explains the procedure and its risks and benefits. If Jane takes it home and spends some time reviewing it, she may come to a point where her understanding of the procedure is sufficient to make her own decision. Without material in plain language and the benefit of time, Jane might not understand the procedure. Without these accommodations, the doctor might well conclude that she is incapable, thus invoking a substitute decision-making alternative.
In summary, an ability to make a decision is not black and white.[178] It can be enhanced by accommodations in that they facilitate individuals with disabilities to be able to exercise their right to make decisions as do others. As we describe in the next section, where the Charter or human rights laws apply and accommodation is a legal requirement, providing accommodation for the decision-making process too, is a legal requirement.
B. Legal Basis for Accommodation
There is a strong legal basis mandating a duty to accommodate in maximizing legal capacity. This emanates from the duty to accommodate found both in Canada’s human rights laws and jurisprudential interpretation in the context of discrimination in s.15 of the Charter. The promotion and protection of human rights and fundamental freedoms, along with the prohibition against discrimination and the duty to accommodate, which feature so prominently in Canadian law, are central tenets of the CRPD as well. As we have noted above, the right to equality and non-discrimination is recognized in Article 5 of the CRPD, which establishes that States Parties have an obligation to ensure the provision of reasonable accommodation.
The concept of accommodation describes a legal duty to take positive action to accommodate the unique needs of people with disabilities. More specifically, “‘Accommodation’ refers to what is required in the circumstances to avoid discrimination.”[179] Its goal is to avoid exclusion by ensuring the fullest possible participation in society.[180] This duty to accommodate, however, is not unlimited in that accommodations are only required to the point of undue hardship. The Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc.,[181] in relation to people with disabilities, elaborated on the duty to accommodate to the point of undue hardship, as follows:
The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider.[182]
The duty to accommodate requires that accommodations be individualized. This principle has been articulated by the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur.[183] The Supreme Court has recognized that accommodation is a highly individualized process that must be responsive to individual needs and must be implemented on an individualized basis.[184] For example, accommodating a person with an intellectual disability may involve support people while accommodating an individual with an acquired brain injury may simply involve allowing more time to process information.
The process of accommodation has been recognized to be one that is a joint obligation. The person asking for accommodations, as well as those responsible for providing them, must co-operate in the accommodation process.[185] Thus, a person with a disability, or his/her supporters, have a duty to advise third parties of the intention to rely on support persons for assistance in the decision-making process, and to advise on how they wish this to be done.
C. Accommodation, the Canadian Charter of Rights and Freedoms and Human Rights Laws
Both the Charter and human rights legislation protect equality rights. And, in fact, “… there is considerable cross-fertilization between statutory human rights cases and equality cases decided under the Charter.”[186] However, while human rights legislation applies to both private and public actors,[187] the Charter only applies in the public sphere.[188]
The federal government and each Canadian province and territory have their own human rights laws which exist to protect individuals from discrimination and promote equality. These have pre-eminent importance in Canada’s legal framework, and are described as fundamental laws which are “quasi-constitutional” in nature.[189] These human rights statutes apply to several areas of activity, including the provision of services, such as those of lawyers, banks and health professionals.
The duty to accommodate in relation to the provision of services is explicitly recognized in most human rights statutes in Canada. Importantly, Supreme Court of Canada commentary on the duty to accommodate is relevant across jurisdictions. Therefore, while the duty to accommodate may not have the same precise meaning in each Canadian jurisdiction, the provision of services throughout Canada should be undertaken giving full effect to supports as an accommodation, in accordance with the applicable human rights legislation and jurisprudence.
Additionally, the Charter applies specifically to government activity and to legislation. The Supreme Court of Canada has interpreted the Charter to include a duty to make reasonable accommodation up to the point of undue hardship.[190] This positive duty on the state to provide accommodation to address differences,[191] has been affirmed by the Supreme Court in relation to disability.[192] In Justice McIntyre’s words, “the accommodation of differences … is the essence of true equality.”[193] More specifically, “recent Charter jurisprudence has affirmed the proposition that the government may owe a positive duty to ameliorate pre-existing disadvantage.”[194] In relation to s.15(1), the Supreme Court has stated:
Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairment does not entail …[195] [emphasis added]
The concepts of discrimination and the duty to accommodate in the provision of services goes to the heart of one’s ability to exercise legal capacity on an equal basis with others; many important, and often life-altering decisions are made in the context of service provision. This includes decisions about health care where health professional services are provided, financial decisions, where banking services are provided and decisions about legal matters, where legal services are provided. Supreme Court of Canada jurisprudence has delved into the circumstances under which services must be provided in a non-discriminatory fashion in the context of s.15 of the Charter. These decisions are of particular relevance, therefore, in the context of legal duties to accommodate decision-making processes.
In Eldridge v. British Columbia (Attorney General),[196] the Supreme Court of Canada compelled the equal provision of medical benefits. In this case the Court found that medical benefits were provided in a discriminatory fashion in that there was a failure to provide sign language interpreters for Deaf patients. The Court held that this failure violated s.15(1) of the Charter and that the appellants, who are Deaf, were not accommodated to the point of undue hardship.[197] Mr. Justice La Forest stated that the Supreme Court “…has repeatedly held that once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner;”[198] and that “[i]n many circumstances, this will require governments to take positive action, for example by extending the scope of a benefit to a previously excluded class of persons”.[199]
However, it is important to note that in the Canadian context access to a benefit that the law has not conferred has been treated differently by the Supreme Court with respect to the extent of the state’s obligation to provide supports and reasonable accommodation. The parents of autistic children, in Auton (Guardian ad litem of) v. British Columbia (Attorney General),[200] alleged that the Province’s failure to provide an emerging form of therapy constituted discrimination under s.15 of the Charter. Madam Chief Justice McLachlin distinguished this factual situation from that in Eldridge. She held that s.15 did not compel the government to provide such therapy because s.15’s application was limited to ensuring that benefits already provided be conferred in a non-discriminatory manner. Madam Chief Justice McLachlin stated that while the goal of s.15(1) is to combat discrimination and ameliorate the position of disadvantaged groups, “[i]t’s specific promise, however, is confined to benefits and burdens ‘of the law’.”[201] Because British Columbia’s law did not provide the benefit that was being sought, s.15(1) was not violated.[202]
The duty to accommodate embodied in the Charter and human rights legislation provides a solid foundation for the proposition that there is a duty to accommodate and provide supports so that each person may exercise his/her legal capacity on an equal basis with others. However, the limits of the duty to accommodate such as articulated in Auton, along with the limitation imposed by the undue hardship standard, illustrate the ways in which the legal right to accommodations in Canadian law is limited. It may be that our current laws, thus, do not extend far enough to meet the full obligation to provide access to support in exercising legal capacity that is required of Article 12(3) of the CRPD. Our proposed contextualized duty to accommodate in relation to decision making, set out in the next two sections, is intended as a legislative and procedural approach to expand the duty in compliance with Article 12(3) and 5(3).
D. Proposed Contextualized Duty to Accommodate in Relation to Decision Making
People whose capacity is in question are a historically disadvantaged group, justifying a comprehensive and easily enforced duty to accommodate. The duty to accommodate proposed in this paper is tailored and specific to the decision-making context. We argue that for people whose decision-making capability is in issue accommodations must always be a legal requirement. Embedding the duties of both the state and third parties directly in legislation is the only approach which will give full effect to the words and intention of Article 12(3) and Article 5(3) of the CRPD. The duties of both non-governmental third parties and the state to ensure accommodations must be engaged regardless of whether the activity is covered by specific human rights legislation or the Charter. While the duty must be a stand-alone one contained in legal capacity-specific legislation, the nature and extent of the duty would draw heavily upon human rights legislation, the Charter and the wealth of jurisprudence which articulates and interprets the duty.
Consistent with the values of non-discrimination and inclusion that our courts have upheld and guarded, the legal capacity-specific duty to accommodate must apply to all domains covered both by human rights laws and the Charter. This includes government and private actors in relation to areas of interaction such as goods, services, facilities, housing, contracts and employment. The nature and extent of the duty must be the same in all these situations. To do otherwise could result in arbitrarily differential treatment of people with disabilities, dependent on factors unrelated to the issues of decision-making ability and supports.
Positive steps must be taken at the outset of a transaction between parties, one of whom has a disability and is therefore owed a duty of accommodation, to ensure that people whose decision-making abilities are in question are given the opportunity to access the supports they need to demonstrate their decision-making capability. In this regard, according to the Supreme Court,
The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.[203]
This positive duty applies regardless of whether the individual is in a legally independent, supported or facilitated status. It may be impractical, and in fact discriminatory, not to provide/allow for the provision of supports at the beginning of a transaction, given the impact on the subsequent decision-making process for failing to do so.
For example, it is important to consider the very likely situation where a person with a disability is not given the opportunity of supports and accommodations at the beginning of a decision-making transaction. For example, a person with an intellectual disability may go to a physician with a medical issue and not actually understand and appreciate the nature and consequences of choosing a surgical intervention over a non-surgical one to deal with the issue. If the physician does not take the pro-active responsibility to inquire whether the person requires decision-making supports at the outset, the person may not avail him or herself of such supports and choose an option that the physician seems to recommend, without full understanding of the consequences. If the surgery option is decided upon, it may have life-long consequences that the individual did not wish and that could have been avoided had the decision been more in keeping with the individual’s actual wishes. Nonetheless, at this point, there is no monetary or other remedy that could reverse the non-pecuniary damage caused by the surgical intervention which was inconsistent with the decision the individual would have made with supports.
A duty to proactively inquire into the need for decision-making supports helps to avoid such outcomes. In addition, given that it may not always be apparent that decision-making ability is an issue, and that decision-making ability changes over time, there must be an ongoing duty to take positive steps to provide supports at any time where there are reasonable grounds to believe that supports may be necessary.
E. Duties of Third Parties and the State
The duty to accommodate is always a multi-party process and in relation to decision-making involves the person with the disability, third parties and the government. The third party with whom the interaction takes place owes the person with the disability a duty to reasonably accommodate them in the decision-making process. This may involve the simple act of respecting the supports as provided by the person. Or, it may require positive action on the part of the third party to provide those supports requested by the person. However, as the law has articulated, this duty is not unlimited. That is, it extends until the point of undue hardship.
But does access to needed supports stop at the point that non-governmental third parties experience undue hardship in accommodating a person in the decision-making process? The CRPD requires governments to take positive action to provide supports for people with disabilities in the decision-making process. In this regard, Article 12 (3) of the CRPD states:
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
This paper proposes that all levels of government have a shared responsibility to assume duties in relation to the provision of such supports. The extent and nature of these supports may well extend beyond the duty to provide reasonable accommodation, as articulated in Canadian human rights laws and Charter jurisprudence. Conceptually, while the duty to accommodate and governments’ duty to provide support overlap somewhat, they do differ in that governments’ duty to provide support may extend beyond the limits of undue hardship where a government’s role is relevant.
While it is our interpretation that governments’ duty to provide supports extends beyond that of non-governmental third parties, we also note that it is not an unlimited duty in view of the modifying words, “appropriate measures”, in Article 12(3) of the CRPD. Further, we note that Article 12(3) should be interpreted within the context of the CRPD as a whole, including Article 5(3) which requires states to take only “appropriate steps” to ensure reasonable accommodation. Thus, individuals’ right to supports to exercise legal capacity does not impose an unlimited duty on the state.
Based on the analysis of the duty to accommodate as discussed above, and the obligations of governments under Article 12(3) and Article 5(3) we suggest the following set of principles and guidelines for managing the intersection of duties between the State and third parties in ensuring reasonable accommodation and supports for people with disabilities in decision-making processes.
1) People with a disability have a right to supports – to assist in development, participation in community life, to enable access and to exercise legal capacity. The CRPD makes clear the obligation of the State to provide supports for people with disabilities, and these must be available to the person to enable them to enter transactions for the purpose of exercising their legal capacity.
2) Third parties have a duty to accommodate people with disabilities in transactions and decision-making processes. This means that third parties must:
· accommodate whatever supports a person brings into the decision-making process; and
· must provide additional supports, to the point of undue hardship, to enable the person to exercise legal capacity in a manner that maximizes their autonomy.
3) Individuals wishing to make decisions, their representatives, and third parties may require assistance in determining appropriate supports and accommodations, and in making needed arrangements to access them. A community-based resource centre is required to provide individuals, their representatives and/or third parties a place to go for information and assistance in determining support and accommodation needs, and in making needed arrangements. Assessment of needed supports and accommodations should be decision-specific, and cannot be based on disability status. The focus of the assessment is to determine what supports the individual requires to make their own decisions – either independently or with the support of others.
4) Where additional supports are required in order to maximize the exercise and enjoyment of legal capacity beyond what the person brings to the decision-making process, and beyond what a third party can reasonably provide as an accommodation, governments have an obligation in accordance with the CRPD to provide such measures. These should include the following activities:
· maintain an office dedicated solely to assisting people to access supports;
· provide information and resources to people with disabilities and third parties outlining the types of supports that may be of benefit along with practical mechanisms for putting the supports into practice;
· provide funding for supports to people whose decision-making capability is in question and who are in need of supports; and,
· maintain a registry of planning documents (e.g. representation agreements) which name supporters.
In the next section we explore how disputes with respect to managing the duty to accommodate can be addressed as part of a system for safeguarding the integrity of the decision-making process.
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