1: The Ontario Government include in reformed legal capacity, decision-making and guardianship laws provisions that are informed by the principles contained in the LCO Frameworks and which set out
a) the purposes of the legislation; and
b) the principles to guide interpretation of the legislation.
2: The Ontario Government accompany reforms to legal capacity, decision-making and guardianship law with a strategy for reviewing the effect of the reforms, within a designated period of time.
3: The current Ontario approach to legal capacity, based on a functional and cognitive approach, be retained.
4: The Ontario Government amend the Health Care Consent Act, 1996 and Substitute Decisions Act, 1992 to clarify
a) that legal capacity exists where the individual can meet the test with appropriate accommodations, and
b) the requirement that assessments of capacity be carried out with appropriate accommodations in accordance with the approach to accommodation developed under domestic human rights law, including for example, adjustments to timing, alternative forms of communication, or extra time.
5: The Ontario Government update
a) the Substitute Decisions Act, 1992 to provide a clear statement as to the appropriate purposes of capacity assessment;
b) Form C under the Substitute Decisions Act, 1992 to clarify that a Capacity Assessment with respect to property or personal care should only be conducted where there is
i. valid cause for concern regarding the ability of the individual to make decisions and
ii. a need for decisions to be made,
and that Assessors should know the reason that a Capacity Assessment has been requested.
6: The Ontario Government amend section 54 of the Mental Health Act to require physicians to conduct an examination of capacity to manage property where there are reasonable grounds to believe that the person may lack legal capacity to manage property and that the person may suffer negative consequences as a result.
7: The Ontario Government develop and implement a strategy for removing informational, navigational, communication and other barriers, and increasing access to Capacity Assessments under the Substitute Decisions Act, 1992 for persons in remote and First Nation communities; newcomer communities; persons facing communications barriers, including among others those who are Deaf, deafened or hard of hearing and persons for whom English or French is a subsequent language; low-income individuals; and others identified as facing barriers.
8: The Government of Ontario create official Guidelines for assessments of capacity under the Health Care Consent Act, 1996, incorporating basic principles and procedural rights.
9: a) The Ontario Government amend sections 17, 47.1 and 62.1 of the Health Care Consent Act, 1996 to include minimum standards for the provision of rights information to the individual who has been found to lack legal capacity, including that
i. notice be provided of the determination of incapacity, the consequences of the incapacity, the identity of the substitute decision-maker who will be making the decision with respect to treatment, and the right to challenge the finding of incapacity;
ii. the information be provided in a manner that accommodates the needs of the affected individual, including alternative methods of communication; and
iii. the health practitioner provide the individual with information or referrals regarding the means of pursuing an application to the Consent and Capacity Board to challenge the finding of incapacity.
b) The health regulatory colleges continue to fulfil their role of supporting and educating their members about how to meet these minimum standards through guidelines and professional education as appropriate.
c) To assist in the implementation of this Recommendation, the Ontario Government amend the Health Care Consent Act, 1996 to require health practitioners, upon a finding of incapacity, to complete a simple regulated form, analogous to Form 33 “Notice to Patient” under the Mental Health Act.
10: The Ontario Government explore means of providing independent and expert advice on rights to persons found incapable under the Health Care Consent Act, 1996, for example by adapting and transforming some key elements of Health Justice partnerships to provide expert and accessible advocacy with health settings, or developing targeted programs for those who are most vulnerable or whose rights are most gravely at risk.
11: a) Within the scope of its mandate, Health Quality Ontario take the following steps to improve the quality of assessments of capacity in health care settings:
i. encourage health care organizations to include issues related to assessment of capacity and the accompanying procedural right in their Quality Improvement Plans;
ii. include issues related to the assessment of capacity and the accompanying procedural rights in their patient surveys;
iii. assist partners in the health care sector in the development or dissemination of educational materials for health care organizations related to the assessment of capacity and the accompanying procedural rights; and
iv. consider bringing specific focus to monitoring of the quality of consent and capacity issues in health care through the production of a dedicated report on this issue,
b) Health Quality Ontario integrate into its initiatives as recommended by 11 (a) a concept of quality that includes respect for patient autonomy, a knowledge of the legal foundations of capacity and consent, and the promotion of patient rights.
12: The Ministry of Health and Long-Term Care encourage and support long-term care homes to better address their responsibilities under the Bill of Rights regarding consent, capacity and decision-making by:
a) including information related to these issues in their annual resident and family satisfaction surveys;
b) working with and strengthening the capacity of Residents and Family Councils to develop educational programs for residents and families on these issues; and
c) developing a thorough and specific focus on issues related to consent, capacity and decision-making in the staff training that they provide to staff.
13: Within the scope of their mandates and objects, the Local Health Integration Networks use their roles in improving quality, setting standards and benchmarks and evaluating outcomes to
a) support and encourage health services to improve information, education and training for professionals carrying out assessments of capacity;
b) ensure effective provision of rights information; and
c) support the provision of information and resources about their roles and responsibilities to persons identified as substitute decision-makers for treatment, admission to long-term care and personal assistance services.
14: Should the LCO’s recommendations related to capacity and consent in the health care setting be implemented, the Government of Ontario actively monitor and evaluate their success in improving the administration of assessments of capacity and meaningful access to procedural rights, with a view to taking more wide-ranging initiatives should significant improvement not be apparent.
15: The Government of Ontario implement a statutory process that provides for processes for consent to detention in long-term care or retirement homes for persons who lack legal capacity and for whom detention is required in order to address vital concerns for security or safety, and which addresses the needs for clarity and for procedural rights in dealing with fundamental liberty interests.
16: The Ontario Government amend the statutory requirements for decision-making practices related to property management to
a) clarify that the purpose of substitute decision-making for persons with respect to property is to enable the necessary decisions to provide for the well-being and quality of life of the person and to meet the financial commitments necessary enable the person to meet those ends; and
b) require that when resources are allocated to the individual’s support, education and care, that consideration be given to prior capable wishes, or where these have not been expressed, to the values and wishes currently held regarding the individuals well-being and quality of life.
17: The Ontario Government amend the relevant legislation to replace the terms “substitute decision-maker” and “guardian” by the term “decision-making representative” so as to clarify that this individual is not intended to impose her or his own values in a pure best interests approach, but instead must take into account the values, preferences and life goals of the individual.
18: The Ontario Government take steps to clarify the scope and content of the human rights duty to accommodate as it applies to service providers with respect to legal capacity and decision-making, including by consulting with service providers and other key stakeholders.
19: The Ontario Government enact legislation or amend the Substitute Decisions Act, 1992 to enable individuals to enter into support authorizations with the following purposes and characteristics:
a) The purpose of the authorizations would be to enable persons who can make decisions with some help to appoint one or more persons to provide such assistance;
b) The test for legal capacity to enter into these authorizations would require the grantor to have the ability to understand and appreciate the nature of the agreement;
c) A standard and mandatory form should be created for these authorizations, to promote a minimum basis of universal understanding of these new instruments;
d) Through a support authorization, the individual would be able to receive assistance with the routine decisions related to personal care and property ( such as payment of bills, banking and purchasing goods or services for the individual);
e) Decisions made through such an appointment would be the decision of the supported person; however, a third party may refuse to recognize a decision or decisions as being that of the supported person if there are reasonable grounds to believe that there has been fraud, misrepresentation or undue influence by the supporter;
f) Support authorizations will only be valid if they include a monitor who is not a member of supported person’s family and who is not in a position of conflict of interest, with duties and powers as set out in Chapter VII;
g) The duties of persons appointed under such authorizations would include the following:
i. maintaining the confidentiality of information received through the support authorization;
ii. maintaining a personal relationship with the individual creating the authorization;
iii. keeping records with regards to their role;
iv. acting diligently, honestly and in good faith;
v. engaging with trusted family and friends; and
vi. acting in accordance with the aim of supporting the individual to make their own decisions,
h) Persons appointed under such authorizations would have the following responsibilities:
i. gather information on behalf of the individual or to assist the individual in doing so;
ii. assist the individual in the decision-making process, including by providing relevant information and explanations;
iii. assist with the communication of decisions; and
iv. endeavour to ensure that the decision is implemented.
20: The Ontario Government examine the practicalities of a statutory legal framework for network decision-making which would permit formally established networks of multiple individuals, including non-family members, to work collectively to facilitate decision-making for individuals who may not meet the test for legal capacity, with a view to developing and implementing such a legal framework if feasible.
Chapter VII: Personal Appointment Processes: Enhancing Clarity and Accountability for Substitute Decision-making
21: a) Persons accepting appointment as a substitute decision-maker or supporter under the Substitute Decisions Act, 1992, sign, prior to acting under such an appointment, a statement of commitment, in a mandatory Statement of Commitment form created by the Ministry of the Attorney General that specifies:
i. the statutory responsibilities of the appointee,
ii. the consequences of failure to fulfil these responsibilities, and
iii. acceptance by the appointee of these responsibilities and the accompanying consequences.
b) Where relevant, this will form part of the Notice of Attorney Acting described in Recommendation 22.
22: The Ontario Government amend the Substitute Decisions Act, 1992 to require that at the time an attorney begins to exercise authority under a power of attorney created under that Act, he or she should be required to deliver a Notice of Attorney Acting, with the following characteristics:
a) the Notice must always be provided to the grantor;
b) the grantor may give express direction in the power of attorney that no Notice is to be delivered to persons other than the grantor or to certain specified individuals;
c) unless the grantor directs otherwise in the power of attorney, the Notice must be delivered to:
i. the spouse or common law partner of the grantor;
ii. the parents of the grantor;
iii. the adult children of the grantor;
iv. the adult siblings of the grantor; and
v. any person named as monitor in the power of attorney, if not one of the above listed persons.
d) the Notice of Attorney Acting be in a standard and mandatory form as developed by the government, and be accompanied by the Statement of Commitment.
23: The Ontario Government amend the Substitute Decisions Act, 1992 to
a) identify the option of grantors of a power of attorney to name at least one monitor;
b) require the naming of a monitor as part of a supportive decision-making arrangement; and
c) specify the following duties of a monitor for either a POA or a support authorization
i. a responsibility to make reasonable efforts to determine whether the attorney or supporter is complying with the statutory requirements for that role;
ii. keep records of their activities in this role;
iii. maintain the confidentiality of the information accessed as part of this role, except as necessary to prevent or remedy abuse or misuse of the role by a person acting under a power of attorney or support authorization; and
iv. promptly report concerns to the Public Guardian and Trustee where there is reason to believe that:
· the person appointed under a power of attorney or support authorization is failing to fulfil their duties or is misusing their role
· the grantor of the power of attorney or creator of a support authorization is legally incapable; and
· serious adverse effects as defined in the Substitute Decisions Act, 1992 are resulting to the grantor or creator.
d) give monitors the following rights:
i. visit and speak with the person who has appointed them as monitors; and
ii. to review accounts and records kept by the attorney or supporter.
24: The Ontario Government amend the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992 to
a) give the Consent and Capacity Board jurisdiction over the following matters that are currently within the jurisdiction of the Superior Court of Justice:
i. the creation, variance and termination of all appointments of guardians; and
ii. review of accounts and provision of directions with respect to powers of attorney and guardianships.
b) provide the Consent and Capacity Board with the following remedial powers:
i. adjust compensation taken by a guardian, suspend or terminate a guardianship or power of attorney;
ii. direct the Public Guardian and Trustee to apply for guardianship; and
iii. temporarily appoint the Public Guardian and Trustee or other person as guardian.
25: In giving effect to Recommendation 24, the Ontario Government amend the Health Care Consent Act, 1996 with respect to the composition and rules of procedure of the Consent and Capacity Board, to strengthen its expertise in these areas and enable it to tailor its processes to this area of jurisdiction.
26: The Ontario Government amend the jurisdiction of the Consent and Capacity Board under sections 35, 37, 52, 54, 67 and 69 of the Health Care Consent Act, 1996 to i) provide directions with respect to the wishes of the person; and ii) determine compliance with the substitute decision-maker’s decision-making obligations
a) to include similar consideration of matters under the Substitute Decisions Act, 1992,
b) to permit the individual under substitute decision-making to make an application regarding compliance with obligations, and
c) in defined circumstances, to enable family or others with a trusting relationship with the individual under substitute decision-making to bring such applications.
27: The Ontario Government explore the benefit of giving the Public Guardian and Trustee the discretion, upon completion of an investigation that does not warrant an application for temporary guardianship, to forward a written report to the Consent and Capacity Board, which would be empowered, with appropriate processes, to order training, mediation, or regular reporting for a substitute decision-maker.
28: The Government of Ontario amend the Substitute Decisions Act, 1992 to specify that it is an offence for a person to impede or interfere with the ability of counsel appointed under section 3 to carry out their statutory function, and to codify a right for Section 3 Counsel to meet privately with their clients.
29: The Ministry of the Attorney General designate responsibility for the development of clear qualification standards, including minimum training, for lawyers appointed as Section 3 counsel under the Substitute Decisions Act, 1992.
30: Legal Aid Ontario consider the following enhancements as part of its current new initiatives in this area:
a) expanding funding of matters under the Substitute Decisions Act, 1992 and in particular of additional supports to:
i. enhance access to Section 3 Counsel;
ii. enhance access to legal representation for persons who wish to challenge the appointment or identity of a guardian and are not the subject of a section 3 appointment; and
iii. enable individuals to challenge the compliance of substitute decision-makers appointed under the Substitute Decisions Act, 1992 with their responsibilities under that statute.
b) providing additional supports to enhance the knowledge and skills of lawyers who provide Legal Aid funded services in this area of the law.
31: If the Ontario Government does not adopt the LCO’s Recommendation 24 regarding an expanded and reformed administrative tribunal empowered to adjudicate issues under the Substitute Decisions Act, 1992, that it explore the expansion of access to mediation for these types of cases, subject to the following protocols:
i. identification of matters that are appropriate for mediation, excluding issues of abuse and of legal capacity;
ii. development of mediators with core competencies necessary to effective mediation in this area of the law, including knowledge and skills in capacity and guardianship law and any other specific law at issue; the principles and values underlying capacity and guardianship law and of human rights; the needs and circumstances of individuals who are affected by this area of the law; and alternatives to the use of guardianship or substitute decision-making; and
iii. creation of a code of ethics and of standards for mediation in this area, including guidance on capacity and consent to engage in mediation.
32: In amending the Health Care Consent Act, 1996 to prepare the Consent and Capacity Board to perform its new role, the Ontario Government consider whether the current time limits for adjudication should be maintained for all applications, or whether for some matters previously dealt with by the Superior Court of Justice, time limits should be more flexible to permit greater scope for alternative dispute resolution, including mediation.
33: The Consent and Capacity Board develop a pilot project to explore the possibilities of a specialized mediation program for selected types of applications, which would be subject to the following protocol:
a) identification of matters that are appropriate for mediation, excluding issues of abuse and of legal capacity;
b) development of mediators with core competencies necessary to effective mediation in this area of the law, including knowledge and skills in capacity and guardianship law; the principles and values underlying capacity and guardianship law; the needs and circumstances of individuals who are affected by this area of the law; and alternatives to the use of guardianship or substitute decision-making; and
c) creation of a code of ethics and of standards for mediation in this area, including guidance on capacity and consent to engage in mediation.
34: The Ontario Government empower adjudicators considering the appointment of a guardian for matters related to property or personal care to request submissions from any of the parties to an application on the potential for a less restrictive alternative or a report from a relevant organization, such as the Public Guardian and Trustee, Adult Protective Services Worker, and Developmental Services staff, on the circumstances of the individual in question, including
i. the nature of their needs for decision-making,
ii. the supports already available to them, and
iii. whether there are additional supports that could be made available to them that would obviate the need for guardianship,
and provide these institutions with appropriate powers and responsibilities for the preparation of such reports.
35: a) The Ontario Government repeal the statutory guardianship process under sections 15 and 16 of the Substitute Decisions Act, 1992 and replace it by applications for appointments to the Consent and Capacity Board.
b) Consistent with the principle of progressive realization, this action be taken towards the goal of eliminating statutory guardianship completely.
36: The Ontario Government amend the Substitute Decisions Act, 1992 to require the adjudicator, when appointing a guardian either of the person or of property, to determine whether:
a) the appointment should be for a limited time,
b) subject to a review at a designated time, or
c) subject to a requirement for the guardian at specified intervals to submit an affidavit with particulars to all parties, indicating that the individual has not regained legal capacity, that the need for decision-making remains, and that there are no less restrictive alternatives available.
37: The Ontario Government amend the Substitute Decisions Act, 1992 to require court-appointed guardians, upon request by the individual, to assist with the arrangement of assessments of capacity, no more frequently than every six months.
38: The Ontario Government amend the Substitute Decisions Act, 1992 to require guardians, should they have reason to believe that the individual has regained legal capacity, to assist the individual to have the guardianship order terminated.
39: The Ontario Government amend the Substitute Decisions Act, 1992 to permit adjudicators to make appointments for limited property guardianships, where an assessment of needs for decision-making indicates that a partial guardianship would meet the needs of the individual within the time limits of the order.
40: The Ontario Government amend the Substitute Decisions Act, 1992 to permit an adjudicator to appoint a representative to make a single decision related to property or personal care.
41: The Ontario Government amend the Health Care Consent Act, 1996 to enable individuals who meet the standard for legal capacity to create a power of attorney for personal care to exclude a particular individual or individuals from appointment under the hierarchy set out in section 20 of that Act, through a written document meeting the same execution requirements as a revocation of a power of attorney for personal care under section 53 of the Substitute Decisions Act, 1992.
42: Government amend the Substitute Decisions Act, 1992, to clearly identify the role of the Public Guardian and Trustee providing expert, trustworthy, professional substitute decision-making for those who do not have access to options that will appropriately meet their decision-making needs, and to set out criteria and processes to enable the Public Guardian and Trustee to fulfil this mandate.
43: Provided that the safeguards identified below or their equivalents are implemented, the Government of Ontario explore the feasibility of establishing a licensing and regulatory system for professional representatives, with the following characteristics:
a) Licensing and oversight focus on those providing these services as a core business, and acting for multiple individuals.
b) Licensing and oversight be provided, at least during the development of the profession, from within government or through a government agency potentially funded through fees.
c) Licensed professional representatives be permitted to make both property and personal care decisions, and to be appointed either personally or externally.
d) The oversight regime include the following safeguards and assurances of quality:
i. Minimum requirements for skills and training;
ii. Ongoing professional development requirements;
iii. Requirements for credit and criminal records checks;
iv. A set of standards of conduct and quality, including prohibitions on specified conflict transactions;
v. Record keeping requirements;
vi. Annual filing requirements; and
vii. Requirements for bonds or insurance.
44: The Government of Ontario explore the viability of enabling community agencies to provide substitute decision-making for low-stakes, day-to-day decisions, such as basic budgeting, bill paying and accessing supports and services, including the creation of appropriate mechanisms for selecting, overseeing, setting standards and addressing conflicts of interest for this function.
45: The Ontario Government include in reformed legislation a statutory mandate for the coordination and development of education and information initiatives, strategies and materials regarding legal capacity and decision-making.
46: The institution allocated the statutory mandate identified in Draft Recommendation 45 develop, either independently or in cooperation with other institutions and structures, education and information strategies, initiatives and materials, to address the information and education needs of persons directly affected by the law; family members and substitute decision-makers and supporters; professionals who implement the law; and service providers who interact with the law.
47: In developing education and information strategies, and materials, responsible institutions
a) take into account the needs of diverse communities affected by the law, including provision of materials in plain language, in multiple languages, in a variety of disability-accessible formats, and in non-print formats (such as, for example, in-person or telephone information).
b) give specific attention to the needs of persons living in settings such as long-term care homes, psychiatric facilities, hospitals and other settings where access to the broader community may be limited.
c) consult persons directly affected by the law, families, and those who work with or represent these individuals.
48: a) As one element of a broader education and information strategy, the responsible institution create a central, coordinated clearinghouse of information for substitute decision-makers and supporters, in plain language and in a variety of languages and accessible formats, including print, online and interactive media.
b) Information include instruction on the legislation, statutory duties and the rights of the affected individual, good decision-making practices, tools (for example, for maintaining records) and resources where supports can be found.
49: The Ontario Government include in standard forms it creates in relation to personal appointments (such as the current forms for powers of attorney and proposed forms for support authorizations, statements of commitment and notices of attorney acting) information about how readers can access further information on the topic, such as through the proposed clearinghouse.
50: The Ontario Government amend the Health Care Consent Act, 1996 to make explicit a clear and specific duty to health practitioners to provide information to substitute decisions-makers regarding their roles and duties under the Act, as part of the process of seeking consent; the creation of a standard, statutorily mandated form may support health practitioners in carrying out this responsibility.
51: Adjudicators be empowered, in a matter before them with respect to the Substitute Decisions Act, 1992, to require a guardian or person acting under a power of attorney or support authorization to obtain education on specific aspects of her or his duties and responsibilities.
52: Professional educational institutions educating lawyers, health practitioners and social workers and other professions involved in applying these laws in the course of their professional duties re-examine their curriculum and consider strengthening coverage of issues related to legal capacity, decision-making and consent, particularly in the context of training in ethics and professionalism.
53: Health regulatory colleges falling under the Regulated Health Professionals Act include issues related to legal capacity and consent as a priority in their quality assurance programs, including identification and assessment of core competencies in this area.
54: The Ministry of Health and Long-term Care support and encourage the health regulatory colleges in developing legally sound and effective quality assurance programs related to legal capacity and consent.
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