The Law Commission of Ontario (LCO) has undertaken a project to review Ontario’s statutory framework related to legal capacity, decision-making and guardianship, to develop recommendations for reform to law, policy and practice in this area. This project has its roots in two of the LCO’s completed projects: the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities. It is also linked to the LCO’s recently completed project, Capacity and Legal Representation for the Federal RDSP.
During the course of those projects, the LCO heard considerable concern about how the laws in this area were operating in practice, and their impact on the autonomy, security, dignity and inclusion of older adults and persons with disabilities. This project applies the LCO Frameworks to this area of the law. This means that the project uses a principles-based analysis, takes as an ultimate goal advancing towards substantive equality for older persons and persons with disabilities, and pays close attention to the particular needs and circumstances of those directly affected by this area of the law.
The project focuses on the core statutory framework of the Substitute Decisions Act (SDA) and Health Care Consent Act (HCCA), as well as the provisions of Part III of the Mental Health Act (MHA) related to assessment of legal capacity to manage property. It does not address the common-law, other statutes that touch upon consent and capacity issues, or the broader provisions of the MHA. Within this scope, it concentrates on the following broad issues:
1. The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the SDA, HCCA and MHA;
2. Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
3. Processes for appointments (for example of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
4. The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
5. Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
6. Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.
This Interim Report is the penultimate stage of this project. It sets out the LCO’s draft analysis of the issues and recommendations for reform to law, policy and practice, as a basis for comment. It will be circulated widely, and responses will be taken into account in the preparation of the Final Report.
The draft analysis and recommendations in this Interim Report are based on intensive research, including the commissioning of several expert papers on a range of topics. As well, the LCO conducted extensive consultations, both at the preliminary stage, and following the release of a comprehensive Discussion Paper during the summer of 2014. The LCO has heard from a wide array of professional and institutional stakeholders, as well as family members and those directly affected by the law. As well, the LCO has benefitted throughout the course of this project from the expertise of a hard-working project Advisory Group.
The LCO’s proposed recommendations for reforms to law, policy and practice in this area fall into six broad themes:
1. Improving access to the law;
2. Promoting understanding of the law;
3. Strengthening the protection of rights under the Health Care Consent Act;
4. Reducing inappropriate intervention;
5. Increasing accountability and transparency for personal appointments; and
6. Enabling greater choice of substitute decision-makers.
Each of these will be addressed separately below.
CONTEXTS AND CHALLENGES FOR REFORM
While legal capacity, decision-making and guardianship legislation does not refer to specific classes of persons, some persons are more likely to be found legally incapable or to be assumed to be legally incapable, including persons with developmental, intellectual, neurological, mental health or cognitive disabilities. It would be difficult to overstate the diversity among those directly affected by legal capacity and decision-making laws. Differences in the nature of the impairment in decision-making abilities may significantly affect needs, so that a person whose impairment is episodic will have quite different needs from the law from those of a person whose abilities are stable or declining. The stage of life at which needs for assistance arise has considerable implications for the nature and extent of the social and economic supports available. As well, gender, culture, family structures, geographical location and many other factors will affect how this legislation is experienced.
Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Three separate law reform initiatives undertaken during this time – the Committee on the Enquiry on Mental Competency, the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons and the Review of Advocacy for Vulnerable Adults – profoundly influenced Ontario’s current laws. Ontario’s resulting statutory framework for legal capacity, decision-making and guardianship is extensive, intricate and nuanced. Its underlying values of freedom from unnecessary intervention and self-determination continue to be seen as appropriate foundations for this area of the law.
However, it has been widely acknowledged that these laws have encountered significant implementation issues, whether because of the confusion that arises within a complex system, lack of knowledge and understanding of the law, shortfalls in dispute resolution and rights enforcement mechanisms, inadequate oversight and monitoring mechanisms for substitute decision-makers (SDMs) or other issues.
Reform to this area of the law must be designed with sensitivity to its evolving context, including:
1. Demographic and social trends and pressures, including the aging of Ontario’s population, changing family structures, and growing cultural and linguistic diversity;
2. The family context, including ongoing debates about the appropriate roles of family and government, the increasing strain on family caregiving, and the challenges associated with assisting another individual with decision-making needs;
3. Social isolation and marginalization, which tends to disproportionately impact those directly affected by these laws, and which may increase vulnerability to abuse and decrease the options available for decision-making assistance;
4. Trend towards formal processes in the delivery of financial and social services may make the informal arrangements with which families have frequently operated in the past untenable; and
5. The delivery of social, health and financial services is inextricably tied to the ways in which issues related to legal capacity and decision-making arise and are resolved.
THEME 1: IMPROVING ACCESS TO THE LAW
Throughout this project, one of the dominant areas of concern has been access to the law, particularly in relation to the processes and dispute resolution mechanisms under the SDA. While there are concerns with the operations of the Consent and Capacity Board (CCB) with respect to the HCCA, overall, the CCB is seen as an appropriate forum for addressing these issues, and as providing relatively accessible and timely adjudication.
Effective access to the law affects every other aspect of legal capacity, decision-making and guardianship laws. Lack of accessibility may create incentives for families to adopt riskier informal approaches or to attempt to solve their problems in creative ways that are not in harmony with the intent of the legislation, for individuals to abandon attempts to enforce their rights, or for parties with superior access to resources necessary to navigate the system to misuse it for their own ends.
In particular, the court-based adjudicative mechanism under the SDA has been critiqued as complex and difficult to navigate, as having limited ability to tailor its processes to the specialized needs of those affected by this area of the law, and by reason of its relative inaccessibility, lacking in the flexibility needed to address the fluctuating or evolving nature of legal capacity. As well, most disputes in this area of the law involve parties who have had and may continue to have ongoing relationships: a number of participants in the LCO’s consultations expressed a desire for greater use of less adversarial approaches in appropriate contexts.
The LCO considered a number of potential approaches to improving the accessibility of the law under the SDA, including expansion of the Public Guardian and Trustee’s (PGT) investigative mandate, the creation of a specialty court, and the provision of expanded advocacy and navigational supports to those directly affected by these laws.
The LCO proposes the following reforms to improve access to the law:
1. Transfer of jurisdiction over matters under the SDA to a reformed and expanded CCB;
2. Provision of additional powers for the CCB, including enabling the CCB to provide directions with respect to the wishes of the person and to determine compliance of substitute decision-makers (SDM) with obligations under the SDA;
3. Strengthening the supports currently provided to persons affected by this area of the law by “section 3 counsel” and by Legal Aid Ontario;
4. Exploring possibilities for specialized mediation programs;
5. Exploring the potential for the PGT, upon completion of an investigation that does not warrant an application for temporary guardianship, to forward a written report to the CCB for action.
THEME 2: PROMOTING UNDERSTANDING OF THE LAW
It is clear to the LCO, both from its own research and consultations, and from concerns expressed by key stakeholders, that there is widespread ignorance and misunderstanding of this area of the law, and that this substantially contributes to shortfalls in implementation. This lack of understanding is not limited to those directly affected by the law, who experience many barriers to obtaining information about their rights under the law, but also to those carrying out responsibilities as SDMs, and to the service providers and professionals who provide services to those affected by the law or conduct assessments of legal capacity.
Reflecting the nature of the issues at stake and the diversity of those affected, this is a highly complicated and multifaceted area of the law: misunderstandings are not surprising, but given the fundamental rights at issue, the consequences of ignorance or misunderstandings may be grave.
There are numerous organizations that provide information on various aspects of Ontario’s legal capacity and decision-making laws, including the Ontario Seniors Secretariat, the Public Guardian and Trustee, the Consent and Capacity Board, legal clinics such as the Advocacy Centre for the Elderly and ARCH Disability Law Centre, and others. However, there is no central, authoritative source for information. Organizations create and provide information relevant to their particular mandates and the needs of the specific groups they serve. It is not clear to those seeking information where they should look, or whether the information they find is accurate or appropriate to their needs: there is, for example, considerable mistaken application of information based on laws from other jurisdictions. Nor is there any comprehensive strategic focus to the development and dissemination of information, so that efforts may be replicated or the needs of some groups overlooked. There are no required proactive means of informing SDMs about their duties and responsibilities: unless they take the initiative to research the law, they are unlikely to be aware of all of their obligations, or to have access to guidance in carrying out their significant responsibilities.
The LCO’s proposed recommendations aim to make more effective use of existing resources and expertise, by promoting the accessibility and trustworthiness of the information available, supporting a collaborative approach to the development of resources, and increasing the coordination of the provision of education and information.
The LCO proposes the following reforms to promote understanding of the law:
1. Allocation of a clear statutory mandate for coordination and strategic development of information and education;
2. Creation of a central clearinghouse for information for SDMs and persons directly affected by the law;
3. Strengthening the provision of information under the HCCA to both SDMs and those directly affected;
4. Enabling adjudicators to require SDMs to obtain education;
5. Strengthening the role in this area of professional educational institutions and of the health regulatory colleges in providing training and education, as part of their quality assurance initiatives;
6. Clarifying the law where there are areas of persistent confusion.
THEME 3: STRENGTHENING RIGHTS PROTECTIONS UNDER THE HEALTH CARE CONSENT ACT
While most commentators felt that the statutory provisions of the HCCA governing legal capacity and decision-making with respect to treatment, admission to long-term care and personal assistance services generally strike an appropriate balance between competing needs for protecting autonomy and providing effective means for decisions to be made in short-time frames, there were widespread and grave concerns that in practice, many aspects of this legislation are not being implemented as intended, and that as a result, rights are being abrogated.
Assessments of capacity under the HCCA are carried out by the treating professional, in the case of treatment decisions, or by a capacity evaluator in the case of admission to long-term care or personal assistance services. In neither case are there standardized guidelines, processes or tools for those carrying out the assessments: in the case of capacity evaluators, organizations such as the Community Care Access Centres have developed materials, but it is difficult to tell how widespread the usage of such materials has been, and in the case of treatment decisions, this is currently a matter for the health regulatory colleges, which vary considerably in the extent and content of the guidance and training that they provide. As a result, the quality of assessments under the HCCA varies widely. Those assessing for treatment may not understand, for example, that legal capacity is decision-specific and time-specific, so that a person may be capable to make one decision independently and not other, or may be able to make a decision at one time that she or he could not make at another. As a result, individuals may be inappropriately deprived of their right to decide for themselves.
Similar issues arise with respect to the provision of “rights information” upon a finding of legal incapacity. Under the MHA, when a person is found incapable, an independent and expert rights adviser provides information and assistance with respect to the consequences of that determination and the options available to the individual. Under the HCCA, that is the responsibility of the professional who has made the determination of incapacity. The LCO has heard that there are widespread systemic failures in the provision of rights information, so that individuals found legally incapable may not have any meaningful access to the procedural rights found in the HCCA.
The LCO proposes the following reforms to strengthen the implementation of the HCCA:
1. Creation of official Guidelines for the conduct of assessments of capacity under the HCCA;
- See Recommendation 8
2. Development of statutory minimum standards for the provision of rights information;
- See Recommendation 9
3. Exploration of means of targeted provision of independent and expert rights advice;
4. Building on existing oversight and quality assurance institutions and mechanisms to increase monitoring of the implementation of these provisions and improve quality;
5. Monitoring and evaluation of these initiatives, with a view to taking more far-reaching steps if necessary.
THEME 4: REDUCING INAPPROPRIATE INTERVENTION
The influential report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (often referred to as the “Fram Report”) proposed as underlying values for this area of the law, self-determination, freedom from unnecessary intervention, and community living through access to support. These values continue to be widely embraced; however, there are concerns that despite the many positive elements of the current statutory framework, unnecessary intervention continues to occur, and that self-determination remains unnecessarily limited.
Some concerns are related to the implementation of the law, including inappropriate exercise of power by SDMs, misapplication of the legal capacity test, and inflexible appointment mechanisms. From other perspectives, fundamental elements of the law, most particularly the use of a functional and cognitive legal capacity test as a threshold for independent decision-making and the use of substitute, rather than supported, decision-making, inappropriately undermine the autonomy of individuals with disabilities and must be re-examined.
The concept of legal capacity, as it is applied in Ontario, is complex and often difficult to operationalize. As an alternative, it has been proposed, most explicitly in the General Comment to Article 12 of the Convention on the Rights of Persons with Disabilities, that this area of the law be fundamentally re-conceived, such that legal capacity both to hold rights and to act is understood as a universal attribute inherent in all individuals by reason of their humanity, that all individuals be provided with the supports that they need to exercise this legal capacity, that appointments cannot be made against an individual’s will, and that all forms of substitute decision-making are abolished and actively combatted.
This area of the law raises profound and challenging philosophical, ethical and practical challenges. Autonomy can be understood in multiple ways, and in any conception, is not without limits, whether practical or in service of other values or of broad societal needs. Along with the value of promoting autonomy, consideration must be given to the appropriate allocation of legal accountability for decision-making: this raises questions not only of abuse, exploitation and undue influence, but also of the fundamental fairness of allocating sole legal responsibility for a decision to a person who did not understand its consequences. The legitimate needs of those who serve or enter into contracts with persons whose decision-making abilities are impaired must also be considered: decision-making is not only about self-determination, but also about clarity, certainty and accountability in our agreements with others.
The LCO proposes a number of recommendations aimed at better promoting and protecting the autonomy and self-determination of those directly affected by these laws, while also recognizing other values and the legitimate needs of other parties.
The LCO proposes the following reforms to reduce inappropriate intervention:
1. The current functional and cognitive approach to legal capacity be retained, but with a clear emphasis on the human rights concept of accommodation in both assessments of legal capacity and the provision of services;
2. Legislation be strengthened to reduce inappropriate or unnecessary assessments of capacity;
3. Statutory requirements for substitute decision-making be clarified to ensure a focus on the prior capable wishes of individuals for whom substitute decision-making is being provided, or on their current values and wishes;
4. A statutory scheme for personal support authorizations be enacted, enabling individuals to appoint trusted others to assist them with day-to-day decisions related to personal care and property;
5. Government explore the potential for a statutory 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;
6. Strengthening opportunities to divert individuals from guardianship, through the phase-out of statutory guardianship and the enhancement of the current provisions of the SDA related to exploration of less restrictive alternatives;
7. Expanding opportunities for more limited guardianship, including time-limited appointments, partial appointments and appointments for single decisions;
8. Strengthening opportunities for review of guardianships which are no longer necessary.
THEME 5: INCREASING ACCOUNTABILITY AND TRANSPARENCY FOR PERSONAL APPOINTMENTS
Powers of attorney (POAs) are highly valued tools, in that they allow individuals to choose for themselves who will make decisions for them if necessary, and to create tailored instructions or restrictions for those decision-makers. However, the flexibility and accessibility that make POAs so appealing and valuable also make these instruments vulnerable to abuse and misuse. Indeed, the LCO heard widespread concern about the abuse of POAs.
Powers of attorney rely on the individual to screen potential appointees to ensure that they are capable of undertaking the associated duties, and are willing and suitable to do so. Attorneys, particularly family members, may accept the role out of a sense of duty, without any sense of the extent or nature of the obligations that it entails. Because Ontario’s legislation regarding POAs aims to make these tools widely accessible, there are relatively few practical or procedural barriers to their creation. The resultant risk is that those creating POAs may not fully understand the potential implications of doing so, and may put themselves at risk of abuse, neglect or exploitation by their attorneys. As well, as private appointments, these powerful documents are amenable to very little scrutiny, so that abuse or misuse may be difficult to detect. Further, the very impairments in memory, ability to receive or assess information or to evaluate the intentions of others that are reasons to activate substitute decision-making arrangements also make it harder for those individuals to monitor the activities of the persons acting under a personal appointment or to identify or seek help regarding inappropriate or abusive behaviour.
In developing proposed recommendations to address concerns about misuse and abuse of personal appointments, the LCO aimed to maintain reasonably straightforward and low-cost access to these tools, while promoting better understanding of these appointments among both grantors and those exercising powers, and increasing transparency and accountability in relation to their use. As resources are limited at all levels, the LCO has given preference to reforms that are not unduly complicated, burdensome or costly, either for government or for individuals and families.
The LCO proposes the following reforms to increase accountability and transparency for personal appointments:
1. Requiring persons accepting appointment under a personal appointment within the SDA to sign, prior to acting under the appointment, a Statement of Commitment that specifies the statutory responsibilities of the appointee, the consequences of failure to fulfil those responsibilities, and acceptance by the appointee of these responsibilities and the accompanying consequences;
2. Requiring persons acting under a POA to deliver, at the time she or he begins to exercise authority under the document, a Notice of Attorney Acting to persons specified in the POA, unless the grantor has opted out of the Notice of Attorney Acting provisions;
3. Creation in the SDA of a specified role of “Monitor”, with powers to review records and to visit and speak with the person in question, and responsibilities to make reasonable efforts to ensure that statutory responsibilities are being complied with: this role would be optional for a POA, but mandatory for a personal support authorization.
THEME 6: ENABLING GREATER CHOICE OF SUBSTITUTE DECISION-MAKERS
Currently, the vast majority of those who act as substitute decision-makers under Ontario law are family members or close friends of those receiving assistance. There are a relatively small number of individuals who have as their SDMs a professional (such as a lawyer), an organization (such as a trust company) or the PGT. Changes in demographics and family structure have left growing numbers of individuals without family or close friends who are willing and able to act: trends indicate that these numbers are likely to continue to grow. As well, the challenges and burdens of the role of an SDM mean that for some Ontarians, choosing among family or friends leaves them choosing the “least bad option”, as lack of necessary skills or family dynamics leave them without good choices. Finally, the current system of statutory guardianship leaves Ontario’s PGT as often the guardian of first, rather than last, resort, a system which has been critiqued by some families and which may not make the most effective use of the PGT’s expertise and resources.
The LCO has proposed as goals for reform in this area, ensuring that all those who lack legal capacity and require an SDM to make necessary decisions should have meaningful access to assistance; that a range of options with appropriate safeguards be available to address the diverse needs of those who lack or may lack legal capacity, including a broader range of options beyond the family; and a identifying a more effective focus for the vital role of the PGT.
The LCO proposes the following reforms to enable greater choice of substitute decision-makers:
1. Amending the HCCA to allow individuals to exclude a particular individual or individuals from appointment under the hierarchy set out in that statute;
2. Government explore the feasibility of establishing a licensing and regulatory system for professional decision-making representatives, as a means of offering a greater range of trustworthy options for those who prefer expert and professional SDM services and have the means to pay for such services, contingent on the inclusion of appropriate safeguards and oversight;
3. Government explore the potential for community organizations to play a greater role in low-stakes, day-to-day decision-making, again with appropriate criteria and oversight;
4. Focussing the role of the PGT on providing expert services for those who cannot be appropriately served by other options, whether because of their social isolation or family dynamics, or because their needs are so challenging that the expertise and professionalism of the PGT is required: this will require the implementation of a number of the other proposed recommendations.
IMPLEMENTING REFORM: A PROGRESSIVE REALIZATION APPROACH
Legal capacity, decision-making and guardianship laws 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.
In crafting approaches to implementing reform, the LCO has relied on the concept of progressive realization, which recognizes that fulfilment of the principles of substantive equality is an ongoing process, as resources, circumstances and understandings develop. Reform proposals must respect and advance the principles, principles must be realized to the greatest extent possible at the current time, and there must be a focus on continuous advancement.
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 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 LCO’s key priorities for reform have been identified as:
1. 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.
2. Strengthening information and education for individuals affected, families, and professionals and service providers involved with legal capacity and decision-making law.
3. Improving the quality of assessments of capacity and promoting access to basic procedural rights for those found legally incapable under the HCCA.
A 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. 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.
|Table of Contents|