The legal concept of “capacity” is central to the law related to decision-making, serving as both its rationale and the threshold for its application. Generally, persons who are considered to have legal capacity are entitled to make decisions for themselves and are held responsible for those decisions, including decisions that others may consider reckless or unwise. On the other hand, persons who have been determined to lack legal capacity in a particular domain or for a particular decision may lose the right to make decisions for themselves independently in that area: others will be responsible for making decisions on their behalf, and can in law be held accountable for how those decisions are made.
Legal capacity has been defined in different ways at different times and for different purposes. At some times and in some jurisdictions, it has been tied to the diagnosis of particular disabilities, in what has been referred to as the “status” approach to defining capacity. At other times, an “outcome” approach has been taken, which focusses on whether the individual in question is making “good” decisions – that is, whether the decisions that the individual is making are within the bounds of what might be considered reasonable. Ontario’s approach, like that of many other common law jurisdictions, is based on a cognitive and functional approach, which emphasizes the ability to make a specific decision or type of decision at a particular time, evaluating the abilities of the individual to understand, retain and evaluate information relevant to a decision. This approach was adopted following the extensive work resulting in the 1990 Report in the Enquiry on Mental Competency, chaired by David Weisstub.
Because the test for legal capacity determines the threshold for the application of the law, and because the consequences of a determination regarding legal capacity may be momentous, approaches to legal capacity are highly contested. The relatively abstract nature of the concept of capacity, embedded as it is in multiple intersecting legal, ethical, medical and social concepts and realities, makes these debates challenging.
Adding to the challenge is the difficulty of operationalizing the concept of legal capacity, particularly the nuanced approach adopted in Ontario’s laws. It may be difficult to disentangle implementation issues from shortfalls in the conception itself. In this Interim Report, Ontario’s systems for assessing legal capacity are dealt with in Chapter V.
Finally, the concept of legal capacity and the critiques of it are closely tied to the ongoing debate regarding the concept of “supported decision-making” as an alternative to substitute decision-making, in that some models of supported decision-making are grounded in a proposed fundamental shift in the approach to legal capacity. Issues related to alternatives to substitute decision-making are dealt with in Chapter VI of this Interim Report.
B. Current Ontario Law
The following elements are fundamental to Ontario’s approach to legal capacity:
1. Legislative presumption of capacity: the Health Care Consent Act, 1996 (HCCA) makes explicit a presumption of capacity for decisions within its ambit: this presumption prevails unless the health practitioner has “reasonable grounds” to believe the person is legally incapable with respect to the decision to be made. The Substitute Decisions Act (SDA) sets out a presumption of capacity to contract, though not for other areas falling within the scope of that legislation. The Ministry of the Attorney General Guidelines for Conducting Assessments of Capacity which bind designated Capacity Assessors conducting Capacity Assessments under the SDA emphasize that when Capacity Assessors assess legal capacity, “in every case there is a presumption of capacity and there should be reasonable grounds that prompt the request for a formal capacity assessment”.
2. Functional and cognitive basis for assessment of capacity: basing the assessment of decisional capacity on the specific functional requirements of that particular decision, rather than on the assessment of an individual’s abilities in the abstract, the individual’s status or the probable outcome of the individual’s choice.
3. The “ability to understand and appreciate” test: tests for capacity are based on the individual’s ability to understand the particular information relevant to that decision, and to appreciate the consequences of making that decision: it is the ability that is most important, rather than the actual understanding or appreciation. While this subtle difference can be difficult to apply in practice, it allows for more individuals to meet the test, as the must only display the potential for understanding and appreciation, rather than actual understanding and appreciation: for example, while communication barriers might thwart actual understanding, they would not impair the ability to understand.
4. Domain or decision-specific capacity: avoiding a global approach to capacity, so that determinations of capacity are restricted to the assessment of capacity to make a specific decision or type of decision. The SDA and HCCA provide specific tests of capacity for property management, personal care, creation of powers of attorney for property and for personal care, consent to treatment, personal assistance services provided in a long-term care home and admission to long-term care.
5. Time limited determinations of capacity: since capacity may vary or fluctuate over time, the validity of any one determination of incapacity is limited to the period during which, on clinical assessment, no significant change in capacity is likely to occur.
The SDA and HCCA include multiple tests for capacity, reflecting the domain/decision specific approach advocated in the Weisstub Report. While all are variants on the “understand and appreciate” test, in practice the requirements for meeting the test may be substantially different: for example, the information that must be understood and appreciated to create a power of attorney for personal care is substantially different (and less rigorous) from what must be understood and appreciated for the capacity to manage property. In this way, the “understand and appreciate test” can operate with great flexibility, responding to its application in different contexts and for different purposes. However, the underlying basis for the test – the requirement to have the ability to understand and appreciate particular information – is consistent across the various areas.
It should be noted, however, that some statutory provisions refer to capacity, while others refer to incapacity, reflecting differences in context between the various domains in which legal capacity is assessed. Health care practitioners, for example, have an affirmative duty to take reasonable steps to ensure that the person is capable and has given consent. The HCCA therefore defines “capacity”. Similarly, under the SDA, grantors must have capacity in order to create a valid POA. On the other hand, for the management of property and personal care, statutory guardianship and POAPCs take effect only when the person is assessed as incapable (the requirements as to who makes this assessment varies) and the definitions in the statute are for incapacity. A person who might be incapable with respect to property management if assessed might in reality not need to make any significant decisions with respect to property or might have informal supports that make a formal finding of incapacity and an appointment of a substitute decision-maker unnecessary.
C. Areas of Concern
1. Article 12 of the Convention on the Rights of Persons with Disabilities
The most fundamental critique of Ontario’s functional and cognitive approach to legal capacity takes as its starting point the rights enunciated in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The CRPD codified the commitments of the international community with respect to the rights of persons with disabilities, detailing the rights that all persons with disabilities enjoy and outlining the obligations of States Parties to protect those rights. Its purpose is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. It reflects social and human rights models of disability and therefore highlights the need for society to adapt to the specific circumstances and realities of persons with disabilities in order to ensure respect and inclusion.
Article 12 requires States Parties to take certain actions, specifically to:
· recognize persons with disabilities as persons before the law;
· recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life;
· take appropriate measures to provide access for persons with disabilities to the supports they may require in exercising their legal capacity;
· ensure that all measures related to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse. These safeguards must ensure that measures related to the exercise of legal capacity respect the rights, will and preferences of the person; are free of conflict of interest and undue influence; are proportional and tailored to the person’s circumstances; apply for the shortest time possible; and are subject to regular review by a competent, independent and impartial authority or judicial body.
· take all appropriate and effective measures, subject to the provisions of the Article, to ensure the equal rights of persons with disabilities in a range of areas, including owning or inheriting property; controlling their own financial affairs; having equal access to bank loans, mortgages and other forms of financial credit; and ensuring that persons with disabilities are not arbitrarily deprived of their property.
There has been considerable debate about the implications of Article 12 for approaches to decision-making. In brief, some commentators view Article 12 as protecting individuals from discriminatory determinations of incapacity based on disability status. Other commentators view Article 12 as creating an inalienable and non-derogable right for persons with disabilities to be considered as legally capable at all times.
The former view appears to have been that of Canada when it ratified the CRPD: at that time, it also entered a Declaration and Reservation, which states that “Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”. It declares Canada’s understanding that Article 12 permits substitute decision-making arrangements as well as those based on the provision of supports “in appropriate circumstances and in accordance with the law”, and reserves the right for Canada “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”.
The latter view, that legal capacity is an irremovable right of all individuals in all circumstances, was taken in the General Comment developed by the Committee on the Rights of Persons with Disabilities. General Comments “are the result of a wide process of consultation and, although not legally binding, are regarded as important legal references for interpretation and implementation of specific aspects of the treaties”. In the view of the Committee, “there is a general misunderstanding of the exact scope of the obligations of State parties under article 12”. Certainly the view of Article 12 evinced by the Committee differs radically from what Canada appears to have understood it was signing. The following is a brief summary of the views of the Committee.
· Article 12 affirms that all persons with disabilities have full legal capacity, and that legal capacity is a universal attribute inherent in all persons by virtue of their humanity, and which they cannot lose through the operation of a legal test. Legal capacity includes both the capacity to hold rights and the capacity to act (“to engage in transactions and in general to create, modify or end legal relationships”). Perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity. Status, outcome and functional approaches to incapacity all violate Article 12. All practices that in purpose or effect deny legal capacity to a person with a disability must be abolished.
· All regimes wherein legal capacity may be removed from a person, even in respect of a single decision; where a substitute decision-maker can be appointed by someone other than the person concerned and this can be done against her or his will; or where decisions may be made for another based on an objective assessment of their “best interest” must be abolished. Creation of supported decision-making regimes in parallel with these substitute decision-making regimes is, in the view of the Committee, not sufficient to comply with Article 12. The Committee goes further to urge States parties to develop effective mechanisms to combat both formal and informal substitute decision-making.
· Persons with disabilities must be provided with the supports that they require to enable them to make decisions that have legal effect. These supports must respect the rights, will and preferences of persons with disabilities. Where the will and preference cannot be ascertained, the best interpretation of will and preference must be the basis for decision-making. Persons have a right not to exercise their right to supports. A person must have the right to refuse support and to terminate or change a relationship at any time.
· Safeguards must be created to ensure protection from abuse, with a primary focus on ensuring the rights, will and preference of the person. Safeguards must include protection against undue influence, but must also respect the right to take risks and make mistakes.
· These are not rights of progressive realization: States parties must take steps immediately to realize these rights.
That is, the General Comment sets out a program of immediate and profound law reform, with enormous personal, social and legal ramifications not only for individuals themselves, but also for governments, family members and third parties. The Comment raises a host of practical questions and implementation issues, for which States Parties are expected to develop solutions.
Both Canada’s Declaration and Reservation and the General Comment provide important insights into potential interpretations of Article 12 of the CRPD, which Canada has committed itself to implement. Given the nature of the LCO’s role and mandate, neither the General Comment nor the Declaration and Reservation limits the LCO’s potential recommendations, although they certainly inform them. It is the responsibility of the LCO to make recommendations that are at minimum consistent with Canada’s international commitments. Given the non-binding nature of a General Comment and the existence of Canada’s Declaration and Reservation, Canada is not clearly bound to carry out the program of reform set out in the General Comment. However, the LCO may certainly recommend that the government take steps beyond minimum compliance with its obligations. This does not mean that the LCO accepts the interpretation given Article 12 by the General Comment. It is the responsibility of the LCO to carefully review available research and the results of public consultations, and to make recommendations for law reform based on that review: it is then the role of government to evaluate the LCO’s analysis and recommendations and to take such steps as it believes appropriate.
It is somewhat artificial to separate the approach to legal capacity set out in the General Comment from its thorough going critique of the very concept of substitute decision-making and its advocacy for its complete replacement by a comprehensive system of supported decision-making. However, it is the LCO’s view that there is some benefit in separately discussing the General Comment’s critique of the functional and cognitive approach to capacity from the search for alternatives to substitute decision-making. There are concepts of supported decision-making which are not dependent on the approach to legal capacity expressed in the General Comment. Some of the available models of “supported decision-making”, such as that in place in Alberta, use a functional capacity test as a threshold for entry into such arrangements. One may reject the approach to legal capacity set out in the General Comment, without closing the door on the concept of supported decision-making.
This Chapter will focus on the critique of the functional and cognitive test for legal capacity adopted in Ontario, and thereby on the inevitable challenges and shortcomings of any approach to legal capacity and decision-making.
2. The LCO Frameworks and the Principle of Autonomy
As was highlighted in Chapter III, one of the central law reform priorities identified through the LCO’s work on this project is to reduce unnecessary and inappropriate intervention in the lives of persons affected by this area of the law, in keeping with the principle of fostering autonomy and independence. Persons affected by this area of the law were clear that they wished at the least for the opportunity to be consulted and heard on decisions that affect them, and to make their own decisions where possible. Several individuals described, with considerable pain, their experiences of being disregarded and unheard, and their sense of being thwarted in directing their own lives.
Mom can be overly patronizing, I have made great recovery from a catastrophic injury. I recently earned a [university] degree. I am entering my 30s now and I’d appreciate better independence, freedom and dignity. Giving another person full arbitrary power over another person’s life decisions can become inefficient and messy and dehumanizing. Canadian culture does not support things like arranged marriage, but this can be likened to the situation people who have substitute decision makers may sometimes feel. Sometimes it feels like simply because they got this legal piece of paper I am looked at and treated differently than I normally would be treated, my valuable insights and intuition can become ignored, and sometimes any opinion I may have can become scorned. Having such a profound legal document completed I feel has set back my recovery from severe injury and I have certainly suffered losses I believe purely as a result of having this capacity assessment done …. It added immense stress.
Participants in the LCO’s focus group for persons with aphasia, a condition that affects the ability to speak, write or understand language, described, with deep emotion, the impact of having health practitioners or others with whom they interact, automatically assume that they could not understand or participate in a decision and turn towards the person accompanying them, excluding them from the discussion of their own lives. A consideration of approaches to legal capacity must grapple with the question of whether Ontario’s approach is fundamentally incompatible with the principle of autonomy: this is the position underlying the General Comment.
The debates regarding the concept of legal capacity explicitly draw on the principle of fostering autonomy and independence, with critiques of current practices and proponents of the approach set out in the General Comment pointing to shortfalls in the promotion and protection of autonomy in systems such as Ontario’s. Those who criticize the current legislation without wishing to abandon substitute decision-making see the shortfalls as issues of implementation; proponents of the model put forward in the General Comment see the concepts of legal capacity and substitute decision-making as fundamentally inconsistent with the principle of autonomy.
However, acknowledging the importance of fostering autonomy is only one aspect of a consideration of the appropriate approach to legal capacity. As was discussed in Chapter III, while our society places a high value on autonomy and self-determination, we are all subject to a wide range of legal restrictions aimed at protecting the rights and needs of others or of the collective, or at preventing unconscionable risk. That is, as important as autonomy is, it is always subject to limits, whether practical, social or legal. There are some types of risks or negative outcomes that are seen as unacceptable, regardless of the autonomous choice of the individual, and regardless of whether the person is considered to have legal capacity or not. What is considered an unacceptable risk or negative outcome is always subject to continued debate and legislative change. The limitations to autonomy imposed by legal capacity and decision-making laws are not automatically inappropriate simply and only because they are limitations to autonomy; however, the creation of additional burdens on autonomy for only some individuals means that they must be subject to careful scrutiny to ensure that they are justifiable.
As Chapter III discussed, the principles of safety or security are often posed as in tension with that of autonomy and independence in this area of the law, due to its preoccupations with issues of choice and risk, emphasizing the importance of a nuanced approach to both sets of principles. There is no simple resolution to the challenges underlying this area of the law: both the approach taken in the General Comment and that put forward in Canada’s Declaration and Reservation are conceived by their proponents as attempting to maximize the two principles, albeit in different ways.
By its very nature, autonomy includes the right to take risks and make bad decisions. Functional approaches to legal capacity emphasize the right of persons who meet that threshold of legal capacity to take risks and make bad decisions within a broad range of activities, but inherently limit the right to do so of persons who do not meet that threshold, since the test requires that for a person to take a risk or accept a negative outcome, he or she must understand that they are taking such a risk or accepting such an outcome. The substitute decision-maker may take a risk or accept a negative outcome on behalf of the person, within the limitations of the legislation – for example, to refuse a recommended health treatment – but must accept the responsibility for having done so. In the approach put forward in the General Comment, the right to take risks and the corresponding responsibility to accept negative outcomes extends to all, hedged only by the ability of the person to repudiate decisions made as the result of undue influence or duress on the part of a supporter.
The issues underlying concepts of legal capacity therefore must be understood to include not only the right to take risks, but also the corresponding responsibility to bear the consequences of those risks. In a legal framework, this raises questions regarding the appropriate apportionment of liability and accountability. The following section looks more closely at the relationships between decision-making, legal accountability, autonomy and risk.
3. Legal Accountability and Responsibility for Decisions
As briefly described above, the general approach of Ontario law towards this area is that where impairments in decision-making ability reach a threshold of legal incapacity, another individual(s) will take responsibility for entering into agreements on behalf of the individual: that individual can be held to account for how she or he carries out that role. For example, the SDA specifies that guardians and powers of attorney for property are liable for damages resulting from a breach of their duty.
The allocation of legal accountability and responsibility for decisions has both positive and negative aspects. The status of legal capacity – in the sense of the ability to make decisions and enter into agreements on one’s own behalf – is often conceptualized as an aspect of legal personhood. As the General Comment states,
Legal capacity has been prejudicially denied to many groups throughout history, including women (particularly upon marriage) and ethnic minorities. However, persons with disabilities remain the group whose legal capacity is most commonly denied in legal systems worldwide. The right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others. Legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights. It acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work. The denial of legal capacity to persons with disabilities has, in many cases, led to their being deprived of many fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty.
Somewhat less attention is paid to the other aspect of the retention of legal capacity – that it entails acceptance of responsibility for the legal consequences of a decision. This raises a number of thorny issues, for which the General Comment provides little practical guidance.
As a starting point in understanding the implications of the approach proposed in the General Comment, it is important to understand that in a regime where all individuals have legal capacity at all times, the consequences of a risky or outright bad decision remain with the individual, who is entitled to make such decisions, no matter how compromised their decision-making abilities may be. For example, within the framework set out in the General Comment, it appears that treatment of a person with a severe mental health disability that affected decision-making abilities without her or his consent would never be considered acceptable, even to prevent serious harm. As another example, a person with an acquired brain injury who quickly spends his or her entire settlement on lavish gifts and impulse purchases and is thereby reduced to lifelong poverty, could not be prevented from doing so under the type of legal framework envisioned in the General Comment, even if his or her brain injury had affected her or his ability to assimilate the risks and negative effects of that course of action. While supporters could attempt to dissuade the individual, they would not have the right to stop her or him, and if the individual wished to dispense with their support, it would be within the individual’s rights to do so.
All individuals have the right to take risks and make foolish decisions, and, by way of comparison, certainly many individuals who unquestionably meet the “understand and appreciate” test are poor money managers. The fundamental question here is something slightly different: whether it is just for an individual to suffer significant adverse consequences which she or he was not able to understand or foresee.
Certainly, the person appointed as supporter in these arrangements has an important role in assisting the supported individual with assessing the implications of a decision. However, the supporter may not be able to adequately convey the implications of a decision, whether because of the nature of the decision-making impairment or the lack of skill of the supporter: in either case, the supported person will remain legally responsible for the decision, regardless of the degree of their understanding of the consequences. In any case, the essence of this approach is that the supporter is not empowered to bind the individual to his or her understanding of the risk or negative outcome.
If the supported person does not understand when making a decision that a risk is being taken or the negative outcome that may result, it is harder to articulate the nature of the “right to risk”. It is the LCO’s view that a requirement that sole legal accountability attach to a decision only where the individual had the ability to be informed about and to assess the consequences, is not on its face an unreasonable requirement.
As a related issue, an approach to legal capacity that understands all individuals as retaining at all times capacity to make decisions also raises the question of what we mean when we speak of “making a decision”, and how we attach accountability to that activity. In the LCO’s view, there is a meaningful difference in terms of the appropriate allocation of accountability between the situation where an individual is able not only to have and indicate some kind of desire or preference, but to have, with whatever necessary degree of support and assistance, some insight into what implications the implementation of that preference would have for her or his life, and those situations where another person is required to carry out that assessment of the potential consequences of that desire.
Practically speaking, almost all individuals may be able to indicate in some way whether they are comfortable or uncomfortable in a particular situation, for example, or to communicate basic desires or interests. For individuals who develop disabilities late in life, others who know them may be able to infer what their wishes are or might be in a particular circumstance through knowledge of their history. These kinds of communication or knowledge may provide guidance to a supporter for many daily decisions. However, it may not, practically speaking, provide clear guidance in complex issues or novel scenarios. Many an adult child has faced anguishing decisions regarding the appropriateness of a particular medical treatment for a parent, despite having had a lifetime’s worth of knowledge of that parent’s values and preferences, because the application of those values and preferences is unclear in the particular situation. Where decisions involve multiple and complicated alternatives and are high-stakes, even if the “supporter” is conscientious and attentive to the individual, it is highly debatable as to whether that individual can be said to have “made a decision” in a way that would justify the supported individual having sole accountability and liability for the decision. There is a difference between the exercise that is undertaken when a decision has been made through an interpretation of another individual’s values and goals, and one that is directly made without the necessity for this kind of empathetic inference. To attempt to place oneself in another’s shoes is a challenging and highly fallible endeavor, no matter how rigorously and carefully it is carried out, and again, this is particularly true in complicated situations or ones where there is no past experience to rely on as a guide. Even in the best of circumstances, as humans we are prone to misunderstanding each other. In many circumstances, the supporter can not simply be a neutral conduit for a clearly ascertainable decision by the individual. These unavoidable limitations, in the LCO’s view, have implications for the ethical obligations of the persons providing assistance, and by extension, should also have legal implications. Where a decision has been made through this kind of empathetic inference, the individual at the centre should not be left to solely suffer the legal consequences.
Finally, as critics of supported decision-making have pointed out, the allocation of sole accountability for the decision to the supported person unless the supported person can demonstrate that the supporter has distorted the process for her or his own benefit, raises risks of abuse. In those supported decision-making approaches where there are no limits on the level of risk or negative outcome that a supported person can take on and no duty on supporters to avoid such outcomes, it is difficult to design effective safeguards for persons whose decision-making abilities are severely impaired. In a context in which the supported person may not have the ability to remember or communicate the substance of the interactions between themselves and the supporter, or where the supporter claims to be the only person able to carry out the “best interpretation of will and preference” of the supported individual, a supporter may easily claim to have followed preferences that are detrimental to the supported person and beneficial to themselves, and it will be difficult to either detect or challenge such misuses or abuses of decision-making powers.
D. The LCO’s Approach
1. Avoiding Unnecessary Intervention
Article 12 of the CRPD and the General Comment highlight the central importance of avoiding paternalism in regards to persons with disabilities, and respecting the role of choice and risk in human experience. In public policy, there are often difficult balances to be struck between respecting individual rights to make risky or bad choices, and avoiding untenable outcomes. Issues related to legal capacity raise these questions in ways that are particularly challenging, given the vulnerability of the group affected, as well as the long history of unwarranted and ultimately counterproductive paternalism towards older persons and persons with disabilities.
It is the view of the LCO that there are circumstances where it is appropriate to find that an individual lacks legal capacity to make a particular decision or type of decisions: a test for legal capacity can be justified. However, it is also the view of the LCO that such removal of rights should be understood as a serious matter, to be undertaken only where truly necessary, and that it should be attended with strong procedural protections. This understanding underlies much of the current legislative regime, but it is clear to the LCO that more must be done to ensure that this understanding is a lived reality.
The LCO’s project on Capacity and Legal Representation for the Federal RDSP, described in section I.D of this Interim Report, provides an example of where the extensive and costly process of appointing a guardian under the SDA was not commensurate with the context. The imposition of a formal guardianship on an individual solely for the purpose of opening an RDSP account and managing the funds within it was seen by many as an excessive burden on the autonomy of individuals who otherwise did not require the assistance of a substitute decision-maker. As a result, there was seen to be a strong rationale for the development of a streamlined way to appoint a trusted person for this limited purpose.
2. Acknowledging the Multiple Aspects of Decision-making
The discussion above acknowledges that decision-making has multiple aspects, with which any concept of legal capacity must grapple. Decision-making is a way in which individuals exert control over their lives, express their values and assert their individuality. As such, it is with good reason associated with the recognition of an individual’s basic humanity and with fundamental rights. Decision-making status is also associated with legal accountability. The concept of legal capacity can be thought of as a means of bringing together these aspects. The concept of “dignity of risk” emphasizes the right of individuals to take risks and make decisions that others consider unwise, as part of respect for human autonomy. However, the notion of unqualified accordance of legal accountability to persons with impaired decision-making abilities also raises important ethical and philosophical questions.
It is the LCO’s view that concepts of legal capacity must take into account both concerns for autonomy and the practical and ethical issues associated with the allocation of legal accountability.
3. The Duty to Accommodate
The legal concept of the duty to accommodate can provide some assistance with the broader goal of minimizing unnecessary interference in individual decision-making.
The human rights principle of accommodation is well recognized in Ontario law, both as part of Charter jurisprudence and as a statutory entitlement in the Ontario Human Rights Code. Section 17(1) of the Code provides that a person’s rights are not contravened if the only reason they have been denied the right is because they cannot fulfil the essential duties or requirements related to the exercise of the right because of disability. However, the Code also imposes a duty under section 17(2) to accommodate in respect of services, employment, housing accommodation, contracts and vocational services, where an individual is unable to fulfil an essential duty or requirement due to disability before the person is found incapable of fulfilling the duties or requirements; and section 11, dealing with constructive discrimination, addresses analogous circumstances in relation to all prohibited grounds, including age or disability. As the Code has primacy over other legislation unless there is a specific legislative exemption, the duty to accommodate applies also to legal capacity and decision-making laws.
Legal Capacity, the Duty to Accommodate and the Provision of Services
Since impairments in decision-making abilities disproportionately affect persons with particular types of disabilities, such as intellectual, mental health or cognitive disabilities, the application by service providers of requirements related to legal capacity may create challenges for individuals with disabilities in accessing services, thereby raising human rights issues and questions regarding the duty to accommodate.
While the duty to accommodate would clearly appear to apply to service providers dealing with legal capacity issues on the part of persons to whom they provide services, the specific content of this duty is far from clear.
The LCO has not identified any specific caselaw, policy guidance or detailed academic analysis of the application of the duty to accommodate to the use of legal capacity tests by service providers. It is not clear in what circumstances the application of a legal capacity test by service providers may be justified within the framework of the Code (or potentially, for some service providers, under the Charter), or what the nature, extent and limits of a duty to accommodate might be.
Following on the discussion throughout this Chapter, it is the LCO’s view that legal capacity may be necessary for the receipt of services in at least some circumstances. It is also the LCO’s view that a human rights analysis should be applied to ensure that requirements for legal capacity are not imposed inappropriately or unnecessarily, and that where legal capacity is necessary for the receipt of a service, accommodations should be provided to assist individuals to meet that requirement where possible.
Chapter VI.F.2 further discusses the duty to accommodate for service providers.
The Duty to Accommodate and the Assessment of Capacity
In addition to the Code-affiliated duty to accommodate with respect to legal capacity on the part of service providers, there may be a broader application of the general concept of the duty to accommodate to the concept of legal capacity itself, and more specifically to assessments of capacity. The Code is not straightforwardly read as applying to such situations: the assessment of capacity with respect to property, personal care or the provision of treatment does not appear to itself be the provision of a service, although as described above, it may be a necessary step for accessing a service.
However, separate from an analysis of the specific duties under the Code, the broad human rights concept of accommodation may assist in bringing the Ontario approach to legal capacity and its assessment into closer alignment with a human rights approach. From this viewpoint, if an individual is able to meet the test for legal capacity with the provision of appropriate accommodations, and the provision of those accommodations does not amount to undue hardship, then not only must those accommodations be provided, but the test for legal capacity should be considered to have been met on an equal basis with those who have not required accommodations.
To some degree, this is implicit in the emphasis in the legislation on legal capacity residing in the ability to understand and appreciate, rather than actual understanding or appreciation. Barriers to communication, for example, should not affect an individual’s ability to understand and appreciate the requisite information, even if they affect the actual understanding and appreciation. A person with aphasia that affects the ability to receive language, for example, may not be able to understand the risks and benefits of a flu shot, presented in a dense written document, but may be able to do so if appropriate communication approaches are applied. However, in practice, without accommodations, it may be difficult to identify the existence of the ability.
The Code also prohibits discrimination on the basis of ancestry, ethnic origin, place of origin and race, grounds that may be associated with language and culture. This is a reminder of the importance of ensuring that assessments of capacity are not distorted by linguistic barriers or cultural misunderstandings. For a meaningful assessment of legal capacity to take place, it may be necessary to employ linguistic or cultural interpretation, to avoid, for example, mistaking a culturally influenced behavior for evidence of a lack of ability to understand or appreciate the issue at hand.
The principle of accommodation should therefore, in this context, be understood broadly as responding to a range of circumstances and needs that may obscure the abilities of individuals, whether listed in the Human Rights Code or not.
Ensuring accommodations during the assessment of capacity does not guarantee that such accommodations will be available in the daily life of the individual, as the need for decisions arises. That is, finding that a person has the ability to understand and appreciate when accommodated, does not mean that they will have supports necessary to make decisions when they arise. For that reason, it is important that an approach to legal capacity that incorporates the concept of accommodation extend both to the assessment process and to service providers, as discussed in Chapter VI.F.2. It is also true, and important to keep in mind, that in some cases, it will be the service provider who is carrying out the formal or informal assessment (for example, the provision of treatment).
This approach is incorporated to some degree into the Guidelines for the Conduct of Assessments of Capacity, created by the Ministry of the Attorney General as mandatory guidance for conducting of Capacity Assessments regarding the management of property or personal care by Capacity Assessors under the Substitute Decisions Act, 1992. For example, the Guidelines require Capacity Assessors to ask their questions “in a way that accommodate[s] the person’s culture, vocabulary, level of education and modality of communication”, and specifically note,
Cultural diversity of the elderly in Ontario is an important issue. Many are first generation Canadians whose first language is not English or French. Cultural norms and traditions may be very different and have a profound influence on day-to-day life. 
The Guidelines provide detailed guidance on accommodating the needs of specific populations, such as older persons, persons with psychiatric disabilities, persons with intellectual disabilities and those with focal neurological disorders. It is the view of a number of the expert stakeholders that this accommodation approach is implicit in Ontario’s approach to legal capacity: whether this is well understand across contexts and consistently implemented is another matter.
E. Draft Recommendations
Based on all of the above, the LCO recommends that Ontario retain an approach to legal capacity that is functional and cognitive. It is the view of the LCO that this approach, if properly implemented with appropriate attention to procedural protections and the provision of less restrictive alternatives, is best suited to minimizing unwarranted interference while appropriately allocating legal responsibility. It is unjust to allocate sole legal responsibility for a decision or action to an individual who could not understand the potential consequences of that decision. For there to be dignity in risk, the individual must have at least some understanding that a risk is in fact being taken.
Ontario’s approach to the “understand and appreciate” test has been nuanced. Pains have been taken to calibrate the test to the contexts and nature of particular types of decisions. For example, the specific statutory components of the “understand and appreciate” test for creating a power of attorney for property management and for personal care, differ significantly, with the test to create a power of attorney for personal care being a very accessible one. The LCO believes that this approach is, despite its limitations, appropriate and effective: concerns regarding the implementation of this approach are dealt with throughout this Interim Report.
DRAFT RECOMMENDATION 3: The current Ontario approach to legal capacity, based on a functional and cognitive approach, be retained.
In accordance with a human rights approach to legal capacity and decision-making issues, it should be clearly understood that legal capacity exists where the test for capacity can be met by the individual with the provision of appropriate supports and accommodations short of undue hardship. Accommodations may include alternative methods of communication, extra time, adjustments for time of day or environment, or the assistance of a trusted person who can provide explanations in a manner that the individual can understand. They may also include accommodations related to language, culture or other areas where special needs may affect the assessment process. A clear inclusion of a responsibility to provide accommodations during an assessment will support the Consent and Capacity Board (CCB), when reviewing challenges to determinations of capacity, in implementing this approach to legal capacity.
Draft RECOMMENDATION 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.
The concept of legal capacity lies at the heart of this area of the law, and debates about approaches to it potentially raise foundational questions. It is in the nature of the concept to raise difficult questions about autonomy, risk and accountability, and different approaches to the concept will balance these competing needs in different ways.
Commentators have challenged Ontario’s functional and cognitive approach to legal capacity, as expressed through its use of tests based on the “ability to understand and appreciate”, as unduly limiting to individual autonomy, and have advanced an alternative approach in which all adults have legal capacity and the function of the law is to provide supports for the exercise of that capacity.
There are limitations and challenges in any approach to legal capacity and decision-making, as any approach must grapple with difficult issues related to risk, autonomy, accountability and the nature of what we consider to be “decision-making”. No approach can solve all of the underlying issues: all will have shortcomings in one direction or another. Overall, it is the view of the LCO that Ontario’s functional and cognitive approach, when appropriately implemented, achieves an appropriate balance between fostering, to the greatest extent possible, the ability of individuals to direct their own lives, and the need to ensure appropriate allocation of legal accountability for decision-making. However, any assessments of legal capacity should be made only after providing appropriate accommodations.
It is essential that this approach to legal capacity be appropriately implemented, so that it does not result in unwarranted and over-extensive removal of decisional autonomy from individuals. Implementation raises serious and challenges issues of its own, which are dealt with at length in the next Chapter, Chapter V.
The adoption of this approach to legal capacity does not foreclose the question of whether substitute decision-making should be the only approach available to individuals who cannot make decisions independently, or whether other alternatives should be made available to some portion of those affected by these laws, a question which is taken up in Chapter VI.
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