I. Introduction to the Project

I. Introduction to the Project 2017-03-03T21:53:41+00:00

A.    Introduction

Decision-making is part of our daily lives. The decisions that we make may be large or small, routine or life-changing, complicated or straightforward, but regardless they are important as expressions of our values and identity, as opportunities to learn from both our successes and mistakes, and as the fundamental means through which we shape our lives. Decision-making is therefore a highly personal endeavor, and the ability to exercise control over our choices is widely viewed as a fundamental right. Generally, people’s decisions about their private lives are controlled by the law only when we have concerns about, for example, safety, but otherwise, while others may think our decisions foolish, they are “our decisions”.

At the same time, decision-making also often has a public aspect. When we are interacting with other individuals or organizations, clarity, certainty and accountability become important considerations. When others are being asked to rely on or implement our decisions, it is important for them to be sure that they understand the decision that has been made, that they can rely on the finality of that decision, and that all parties can be held to account to uphold their part of the decision. In this public realm, law plays a major role, for example in determining when an agreement is valid and we are entitled to rely on it, and when a party is liable for a breach of the agreement. 

Regardless of whether the decisions are in the public or purely in the private sphere, however, the law does intervene when there is concern about whether an individual has the legal capacity to make these decisions. Laws regarding legal capacity, decision-making and guardianship must take into account both the personal and the public aspects of the decision-making, and so raise difficult and important ethical and practical issues. And here, our assessment – and the law’s view – of whether an individual should have sole control over her or his decisions regardless of the “wisdom” of those decisions takes on a far more ambiguous appearance.  

These laws affect a substantial portion of Ontario’s population, including persons with significant temporary or chronic illnesses, with aging related disabilities such as dementia, with mental health disabilities, acquired brain injuries or developmental disabilities. These laws of course also have a major impact on families and caregivers, as well as on a wide array of professionals and service providers. Most Ontarians will, at some point in their personal or professional lives, encounter this area of the law. 

This project arose from the Law Commission of Ontario’s (LCO) two Framework projects on the law as it affects persons with disabilities and the law as it affects older adults.[1] Ontario has a comprehensive and relatively coordinated statutory scheme related to legal capacity and decision-making, resulting from a thorough and thoughtful law reform process in the late 1980s and early 1990s.[2] However, in both Framework projects, a wide array of individuals and stakeholders raised concerns about Ontario’s laws in these areas and urged the LCO to undertake a thorough review. This project applies the Frameworks to this area of the law. 

The LCO’s review of Ontario’s statutory regime for legal capacity, decision-making and guardianship has raised many challenging issues, for which there are no straightforward solutions. The onus on us is to make every effort to ensure that these laws are effective and fair, and that they respect and promote the substantive equality of older persons and persons with disabilities. 

This Interim Report sets out the LCO’s analysis and draft recommendations for reform of Ontario’s legal framework relating to legal capacity and decision-making. It follows the June 2014 release of a comprehensive Discussion Paper[3] and Summary of Consultation Issues,[4] and the subsequent public consultations. The LCO is seeking feedback on this Interim Report, and will be releasing a Final Report in 2016. 


B.    The Project Process

Concentrated work on this project began very early in 2013, with a process of preliminary consultations and research. During this phase, the LCO spoke with approximately 70 individuals and organizations, so as to understand how the law was currently operating, the priorities for reform, and other projects underway which might affect this project. Through this work, the LCO developed the project scope and created a project Advisory Group, which has provided expertise on the subject matter of this project, as well as extensive assistance with outreach and public consultation strategies and execution. The work of the project Advisory Group has been extremely valuable, and the LCO is very grateful for the considerable time and thoughtfulness that these individuals have devoted to this project. The members of the project Advisory Group are listed in the front matter of this Interim Report. 

During 2013, the LCO conducted wide-ranging research, as well as commissioning a number of expert papers on a variety of topics that are listed in Appendix C. Based on this research and the preliminary consultations, and with the input of the Advisory Group, the LCO developed a comprehensive Discussion Paper, which was released in late June 2014. This was accompanied by a much shorter and simplified Summary of Consultation Issues. These documents are available at http://www.lco-cdo.org/en/capacity-guardianship. 

Through the late summer and fall of 2014, the LCO conducted extensive public consultations on the issues raised in the Discussion Paper and Summary. 

Written Submissions: The LCO received 16 formal written submissions, most of which were lengthy documents dealing in-depth with particular reform options. The LCO also received a significant number of written communications from individuals with personal experience, whether as persons directly affected by or family members navigating the law. 

Consultation Questionnaires: The LCO developed two consultation questionnaires as a way to provide additional opportunities for individuals to share their experiences and aspirations for change. It must be emphasized that these questionnaires were not intended as social science research, but as a means of input for those affected by the relevant laws. There were two questionnaires: one for individuals who receive assistance with decision-making, and another for family members, friends and others who provide assistance with decision-making. Copies of the consultation questionnaires are included in Appendix D.  These questionnaires were available on the LCO website and in multiple formats, and the LCO worked with a wide range of community partners to distribute them to interested communities. 

The LCO received 109 questionnaires from those receiving assistance of some form with their decision-making needs. Of this group, most were older adults, with 36 per cent of respondents age 85 or older, 45 per cent between the ages of 65 and 84, and the remaining 19 per cent under the age of 65. Women made up 67 per cent of the respondents.  While the LCO heard in this way from persons operating under a variety of legal or informal arrangements, including persons under statutory or court-appointed guardianships, by far the majority of respondents were receiving assistance through a power of attorney, and in most cases, the person(s) with authority under the POA was exercising plenary powers (that is, in relation to all decision-making). Because confusion over legal documentation was evident in the responses, it is difficult to tell whether the broad powers being exercised were appropriately legally authorized. Only 30 per cent of individuals recollected any formal assessment of their legal capacity taking place. 

The LCO received 103 questionnaires from individuals providing assistance with respect to decision-making. Of this group, the majority at 55 per cent either did not have a legal document or could not identify it if they had it. Of those that did have a legal document and could identify it, almost half had a power of attorney (48 per cent). The vast majority of respondents to this survey – 78 per cent – were female, and a slight majority of 54 per cent were living with the person for whom they provided decision-making assistance.  Most (62 per cent) were acting for an adult child. That is, this survey tended to reflect the experiences of those providing decision-making assistance to persons who had disabilities from birth or developed them at a young age within Ontario’s legal capacity and decision-making laws, while the group completing the survey related to receiving assistance reflected the experiences of that group of Ontarians who age into disability. 

Focus Groups: Thirty focus groups were held in a number of locations in Ontario. Most were developed through partnerships with a wide range of institutions and professional and community organizations. These focus groups brought together small groups of individuals (up to 15 participants per session) with a shared experience or expertise for in-depth discussions of experiences with the law and options for reform. The LCO heard from distinct and divergent perspectives and experiences through the focus groups, including from individuals directly affected by the law, family members, and professionals, experts and service providers, including ethicists, Community Care Access Centre staff, government, judiciary, community and advocacy organizations, clinicians, lawyers, social service providers and others. A complete list of the focus groups can be found in Appendix E. 

Consultation Interviews: In the late fall and early winter, the LCO conducted a series of 24 in-depth interviews. These included interviews with long-term care home providers, service providers, francophones, northerners, experts and others. 

Consultation Forum: On October 31, 2014, the LCO hosted a full-day consultation forum, bringing together persons with diverse experiences and expertise to work in small groups to identify principles, purposes and priorities for reform, and to consider how law reform in this area can accommodate widely differing experiences and needs. 

All told, the LCO has heard from close to 600 individuals and organizations. A list of professionals and organizations consulted can be found in Appendix C. 

It is not possible within the span of this Interim Report to explicitly reflect all that has been heard through this extensive process, although we have provided illustrations of what we have heard. We have given careful consideration to all the perspectives brought forward, and our analysis and draft recommendations have been fundamentally shaped by this process.  The LCO thanks all those who generously gave of their time to assist us in understanding how the law currently works, challenges in the law and its implementation, the priorities and principles for change, and the options for reforms. These issues are difficult, and as they profoundly shape the lives they affect, they are also often painful. The LCO appreciates the willingness of so many individuals to share their struggles with us.  We are deeply aware of that this area of the law it often affects individuals who are often already facing many challenges. 


C.    Project Scope and Themes 

The scope of this project was determined through the LCO’s preliminary research and consultations. The focus is on the provisions of the Health Care Consent Act, 1996 (HCCA),[5] Substitute Decisions Act, 1992 (SDA)[6] and Part III of the Mental Health Act (MHA)[7] dealing with examinations of capacity to manage property upon admission to a psychiatric facility.  The LCO will not be making recommendations about the common law of capacity and consent,[8] capacity to consent under privacy law[9] or consent to research, or broader aspects of the MHA such as community treatment orders. 

Even within Ontario’s statutory consent and capacity laws, there are many issues that the LCO will not be addressing in this project, including extra-judicial recognition of powers of attorney, and the ability of an attorney under a power of attorney to make a beneficiary designation. 

This is not a reflection on the importance of the issues not addressed: they are of considerable practical significance to many Ontarians. Given the breadth of the issues, the LCO has focussed on those with broad general implications for the statutory scheme as a whole, which were also pressingly identified by stakeholders. In some cases, such as the issues related to extra-judicial recognition,[10] significant work is being done by other bodies; therefore, it is consistent with the LCO’s criteria for undertaking projects for the LCO to focus its efforts elsewhere.

As was outlined in the Discussion Paper, the scope of this project has been defined to include:

1.     The standard for legal 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. 

Importantly, as was briefly noted above, this project grew out of the LCO’s two Framework projects on the law as it affects older persons and the law as it affects persons with disabilities, which were completed in 2012,[11] and applies these Frameworks to the issues and through the themes identified below. The adoption of the Frameworks as the starting point of this project and as its analytical foundation has substantially shaped the approach to and results of this project. Chapter III will discuss the implications of the Frameworks for this project and for this area of the law. 

Within the broad outlines of the project scope, the LCO’s public consultations, together with internal and commissioned research, identified key themes and priorities for reform. 

The LCO’s research and consultations indicate that the values and priorities that underlay the law reform efforts of the 1990s resulting in the current laws retain broad appeal and support. The concerns which the LCO heard focused on how the current statutory regime falls short of its original goals and thereby fails to promote its underlying values and whether, in light of advances in understanding, the values of autonomy and self-determination should find new forms and protections. Three key themes emerged, each giving rise to several priorities for reform. 

1.     Reducing unnecessary and inappropriate intervention: Building on the influential recommendations in the Fram Report,[12] which is briefly discussed in Chapter II, the current legislation contains many provisions specifically intended to advance the autonomy and self-determination of those who fall within its scope, including  specific presumptions of capacity, and an emphasis on decision-specific approaches to capacity; the provision of procedural rights to persons affected, such as rights advice and information and the right to refuse an assessment under the  SDA; the inclusion of requirements to consider the least restrictive alternative in court-appointed guardianships; and others. 

However, concerns were raised that for a variety of reasons, individuals continue to be subject to unnecessary restrictions on their autonomy. Issues include lack of understanding of the law on the part of individuals, families and service providers; inflexibility of guardianship processes; challenges in implementation of existing safeguards against unnecessary intervention; lack of accessible means of asserting rights under the SDA; and an approach to legal capacity and decision-making that is at times overly binary.  

The LCO has identified a number of specific priorities for reducing unnecessary interventions, including:

·       clarifying the application of a duty to accommodate to legal capacity and decision-making;

·       providing options beyond substitute decision-making in appropriate circumstances;

·       clarifying the duties of substitute decision-makers to consider the values and life goals of those for whom they make decisions, and providing them with better information about their responsibilities;

·       increasing the powers of adjudicators to explore less restrictive alternatives and to tailor guardianship orders to the needs of the affected individuals; and

·       increasing the accessibility and responsiveness of the external appointments processes. 

2.     Improving access to the law: During the LCO’s public consultations, there was broad concern that many positive aspects of the current law are having only limited benefit, as a result of shortfalls in access to the law. Individuals who are directly affected by the law and their families may face significant difficulties in understanding, accessing and enforcing their rights. Problems include a lack of awareness of the law among those directly affected and their families; a lack of meaningful oversight and monitoring mechanisms; and inaccessible or inadequate dispute resolution and rights enforcement mechanisms.

Priorities for improving access to the law for individuals directly affected and for families include:

·       strengthening rights information provisions under the HCCA, to provide greater assurance that individuals who are found to be legally incapable under this Act are informed about their legal status and the available remedies;

·       improving oversight and monitoring of assessments of capacity and rights information processes under the HCCA;

·       improving access to reliable and consistent information about rights and recourse for all stakeholders;

·       increasing monitoring of the activities of those acting under personal appointments;

·       reforming the mechanisms for enforcing rights and resolving disputes under the SDA; and

·       monitoring the effectiveness of any reforms that the government enacts.

3.     Enhancing the clarity and coordination of the law: As the brief overview of Ontario’s laws respecting legal capacity and decision-making in Chapter II indicates, Ontario’s laws are highly complex, and are implemented through many different institutions and systems. There are, for example, multiple mechanisms for assessing legal capacity, depending on the type of decision and the context, with the result that not only individuals but even service providers and professionals carrying out assessments may be confused as to the correct route in a particular circumstance. Further, the purposes and standards for implementing the law are unclear in a number of areas, so that those who must apply the law may be confused as to their responsibilities, and implementation may vary considerably between contexts or service providers. Finally, while responsibility for implementing the legislation is dispersed among multiple ministries, institutions and professions, there is no body or mechanism that has the responsibility or the capacity to coordinate these various activities to ensure that they operate effectively and as intended. For example, the legislation does not confer any particular institution with responsibility for providing information and education about the law: while many organizations have undertaken considerable efforts to address the needs, there is no means of tracking what has been done and where needs remain, providing that information and education is accurate and appropriate, or identifying and building on good programs and practices in this area.  Priorities for enhancing clarity and navigability include the following:

·       developing clear basic standards and principles for assessments of capacity and rights information under the HCCA;

·       identifying statutory responsibility for the provision of specified elements of education and information in this area, together with the development of centralized, accessible and reliable resources for those affected by this area of the law; and

·       clarifying principles, purposes and terminology for this area of the law.


D.   The LCO’s Project on Capacity and Legal Representation for the Federal RDSP

The Ontario government asked the LCO to undertake a review of how adults with disabilities might be better enabled to participate in the federal Registered Disability Savings Plan (RDSP), and the LCO’s Board of Governors approved its project, Capacity and Legal Representation for the Federal RDSP in April 2013.[13]

A review of the federal RDSP program in 2011 had revealed concerns about processes within provincial jurisdictions for designating an RDSP plan holder. In response, the federal government put in place a provisional remedy, which was designated to expire at the end of 2016. The purpose of the LCO’s project was to recommend the creation of a streamlined Ontario process to appoint a legal representative for adults who are eligible for an RDSP but who are unable to establish a plan due to concerns about their legal capacity. 

The Capacity and Legal Representation for the Federal RDSP project was initiated in the context of the comprehensive, multi-year project on legal capacity, decision-making and guardianship that is the subject of this Interim Report. The more focussed project was undertaken as a priority, because of the imminent expiry of the federal government’s provisional remedy. The scope of the RDSP project was defined narrowly to address a specific barrier to accessing the RDSP: the appointment of an RDSP legal representative for beneficiaries who require another person to make decisions about their RDSP in Ontario. The LCO sought, in the RDSP project, to limit recommendations in areas that overlapped with this larger project, in order to avoid precluding options. The shorter timelines of the RDSP project were less amenable to addressing contentious issues or those with potentially broad impacts on the system currently in place under the SDA. 

The Final Report in the RDSP project recommended the institution of a process enabling adults whose legal capacity is lacking or in doubt and who do not have a guardian or a power of attorney to personally appoint an RDSP legal representative to open and manage funds in an RDSP (but not to manage funds withdrawn from an RDSP). The criteria for creation of such an appointment would be based on the common law criteria for capacity to create a power of attorney, and the appointee would have the same duties as an attorney for property under the SDA.  

Like this project, the RDSP project drew on the Framework principles, and took as essential considerations promoting meaningful participation and inclusion for persons with disabilities, ensuring necessary protections, taking into account the needs of third parties, and identifying practical solutions. 

In developing the analysis and draft recommendations for the Interim Report for this broader project, the LCO has taken into account the learnings and recommendations from the RDSP project, particularly the concern to avoid the unnecessary imposition of broad substitute decision-making as a solution to much more specific needs for assistance with decision-making, the barriers created by expensive and complicated appointment mechanisms, and the need for flexible solutions. In particular, the recommendations in Chapter VI.F to enable personal support authorizations and to explore network decision-making, and in Chapter IX.F.4 to allow for much more limited and flexible appointments, together with the recommendations in Chapter VIII to create more accessible appointment processes, should do much to address the barriers underlying the need for the RDSP project. 


E.     This Interim Report

1.     Purpose of the Interim Report

The Discussion Paper identified key issues in the laws affecting legal capacity, decision-making and guardianship, provided a general analysis and set out potential directions for reform. It also included questions to guide discussions. This Interim Report is not intended to repeat the material set out in the Discussion Paper. For those looking for a description of the current law, or a broad survey of comparable laws, for example, such material may be found in the Discussion Paper. The Interim Report sets out the LCO’s analysis of the issues, based on public consultations and research, together with draft recommendations for changes to law, policy and practice to address the identified priorities for reform. It was approved by the LCO Board of Governors on October 8, 2015

The Interim Report has been widely circulated for feedback. Based on this feedback and the LCO’s ongoing research, the LCO will develop a Final Report with recommendations, which will be shared with all those who have participated in the development of this project, as well as with all key stakeholders, and distributed publicly. 

For those wishing to provide feedback on the LCO’s analysis and recommendations, Chapter XIII, “Next Steps”, sets out timelines and other useful information. 


2.     Structure of the Interim Report

The Interim Report is structured around key issues for reform, rather than according to the existing statutory framework. 

Chapter II provides a brief overview of Ontario’s approach to legal capacity, decision-making and guardianship, including highlighting the strengths and weaknesses of Ontario’s laws. 

Chapter III briefly describes the LCO’s Frameworks and considers their application to this area of the law. 

Chapter IV considers Ontario’s functional and cognitive approach to the concept of legal capacity, and in particular discusses the alternative approach set out in the General Comment to Article 12 of the Convention on the Rights of Persons with Disabilities. 

Chapter V examines Ontario’s four formal mechanisms for assessing legal capacity: assessments of capacity to consent to treatment, evaluations of capacity to consent to admission to long-term care or for personal assistance services, examinations of capacity to manage property under the MHA, and Capacity Assessments for property management and personal care under the SDA.

Chapter VI considers substitute decision-making and proposed alternatives, such as supported decision-making and co-decision-making. 

Chapter VII reviews concerns related to lack of accountability and transparency in appointment processes for powers of attorney and proposes reforms. 

Chapter VIII addresses shortcomings in Ontario’s available mechanisms for enforcing rights and resolving disputes in this area of the law. 

Chapter IX sets out reforms to guardianship appointment processes aimed to increase the flexibility of these processes and reduce unnecessary intervention. 

Chapter X considers possibilities for expanding access to professional representatives. 

Chapter XI highlights the importance of education and information in the functioning of Ontario’s laws for legal capacity, decision-making and guardianship, and identifies reforms to strengthen understanding of the law and develop skills for its appropriate implementation. 

Chapter XII briefly discusses priorities and timeframes for implementation of the draft recommendations. 

Each of Chapters III through XI provides a brief overview of the key elements of the current law, outlines areas of concern identified through research and public consultation, considers the application of the Frameworks to these concerns, highlights the LCO’s approach to reform, and proposes draft recommendations for reform. At the end of each Chapter, a brief summary of the draft recommendations is provided.



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