A. Introduction and Background
In the LCO’s preliminary consultations for this project, one of the dominant areas of concern was access to law, particularly in relation to the processes and dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA). There was a strong sense that these mechanisms are often costly, complex and difficult to access, and that as a result, the rights and responsibilities under the SDA are not realized as intended. The results of these initial consultations were confirmed in the responses to the LCO’s fall 2014 public consultations, with participants conveying a message that significant reform in this area is warranted.
It should be kept in mind that effective access to the law will affect every other aspect of the legal capacity, decision-making and guardianship system. Lack of accessibility may create incentives for families to adopt riskier informal approaches or to attempt creative solutions to their problems which are not in harmony with the intent of the legislation, for individuals to abandon attempts to obtain their rights, or for parties with superior access to the resources necessary to navigate the system to misuse it for their own ends.
Concerns regarding the appropriate implementation of the rights and responsibilities under the Health Care Consent Act, 1996 (HCCA) tend to focus on the quality of assessments of capacity under that Act, and on the appropriateness and effectiveness of procedural protections at the point of determinations of legal capacity, most particularly regarding rights information for persons found legally incapable under the HCCA. These concerns are dealt with at length in Chapter V of this Interim Report. While there were particular critiques of the operations of the Consent and Capacity Board (CCB), such as the ongoing debate as to whether the CCB is overly focused on legal rights or insufficiently so, and an interest in exploring greater use of alternative dispute resolution, the sense was that overall, the flexibility of the HCCA appointment mechanisms and the existence of the CCB as an accessible administrative tribunal providing speedy and relatively responsive adjudication, is an appropriate approach. This Chapter will therefore mainly focus on concerns regarding processes for dispute resolution and rights enforcement under the SDA.
All of the adjudicative processes under the SDA, including processes for appointment, variation and termination of guardianships, and the provisions for passings of accounts and seeking directions, are closely tied together, as are the administrative investigation processes under the mandate of the Public Guardian and Trustee (PGT). These will therefore all be addressed together in this Chapter, as mechanisms by which individuals access the law. Chapter IX will address some specific concerns and proposals for reform related to external appointment processes: as these are issues related to the substantive powers of adjudicators, rather than access mechanisms, they are dealt with separately, although they are connected.
B. Current Ontario Law
Dispute resolution and rights enforcement related to legal capacity, decision-making and guardianship takes place in many venues in Ontario, including through internal institutional policies and procedures (for example, the Patient Advocacy Offices that exist in many hospitals), sectoral complaints mechanisms such as the Ombudsman for Banking Services and the formal complaints mechanisms available through the health regulatory colleges. However, the core of Ontario’s dispute resolution and rights enforcement mechanisms for legal capacity and decision-making lies with the CCB, the Superior Court of Justice, and the “serious adverse effects” investigations process that lies with the PGT. These mechanisms are described below.
1. The Role of the Consent and Capacity Board
The mandate of the CCB extends to a number of statutes, including the Mental Health Act, the Personal Health Information Protection Act, 2004, and the Mandatory Blood Testing Act, in addition to its vital role in overseeing the application of Ontario’s laws related to legal capacity and consent. In particular, the CCB may hear the following applications:
· To review a finding of incapacity, whether by a health professional with respect to treatment,[285] an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home,[286] or by a Capacity Assessor with respect to property;[287]
· To appoint a decision-making representative with respect to decisions to be made under the HCCA;[288]
· For permission for an SDM to depart from the prior capable wishes of a person who lacks legal capacity;[289]
· To determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made;[290]
· For directions when the appropriate application of the HCCA with respect to a required decision is not clear; and[291]
· For review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility and admission to a secure unit in a care facility.[292]
In practice, the vast majority of the applications that the CCB addresses are reviews of determinations that a person is incapable with respect to treatment, or findings that an individual should be admitted or remain admitted at a psychiatric facility on an involuntary basis.[293] In many ways, the CCB’s activities remain highly focused on mental health law, and this is reflected in the composition and culture of this tribunal.
Members of the CCB may hear applications alone or in panels of three or five. Board members include lawyers, psychiatrists and public members. The CCB’s Rules of Practice take a broad approach to the admission of evidence: the Board may “admit any evidence relevant to the subject matter of the proceeding”, and may direct the form in which evidence is received.[294] The legislation gives priority to expeditious resolutions: hearings must commence within seven days of an application and decisions rendered (and summary reasons provided to the parties) within one day of the conclusion of the hearing.[295] Decisions of the CCB may be appealed to the Superior Court of Justice on questions of both fact and law.[296]
The effectiveness of the CCB is supported by the requirements for rights advice under the MHA, described in Chapter V, and the widespread provision by Legal Aid Ontario (LAO) of counsel without cost for individuals whose rights are at issue before the CCB, as is detailed later in this Chapter.
2. The Role of the Superior Court of Justice
The processes for the appointment, variance and termination of guardianships are described at some length in Chapter IX, and so will not be detailed here. There are two methods by which an individual may enter into guardianship: an administrative statutory guardianship process, when someone is found incapable under Part III of the MHA or section 16 of the SDA, available only for property matters; and a court-appointment process, for guardianships of property or of the person, initiated by anyone under section 22 of the SDA or section 55 of the SDA, respectively. Most appointments of guardians are currently through the statutory guardianship process: the Superior Court of Justice currently appoints between 200 and 260 guardians per year.[297] There are summary procedures for guardianship appointments and terminations, but they are used infrequently. It is important to keep in mind that while appointments, variance and terminations of guardianship orders may be relatively straightforward, these orders may also be sought as part of broader disputes, in some cases involving abuse or misuse of funds.
The Superior Court of Justice also has an important role in providing oversight of the activities of SDMs and resolving questions of interpretation. Notably, the Court may hear applications for the passing of all or part of the accounts of either a guardian or attorney for property. The Court also has broad powers to “give directions on any question arising in connection with the guardianship or power of attorney” [emphasis added] for either property or personal care.[298]
Significantly, the Court has broad remedial powers when addressing applications for directions or for the passing of accounts. Upon an application for directions, the Court may “give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with this Act”.[299] Upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian or terminate the guardianship.[300]
3. Investigations by the Public Guardian and Trustee
The administrative complaints and investigation powers under the SDA are an important part of Ontario’s overall system for addressing legal capacity, decision-making and guardianship issues, and are highly valued by stakeholders. It should be noted that the investigative function of the PGT is a significant advance on what is available in many other jurisdictions, which do not have similar administrative investigative processes specific to legal capacity and decision-making issues and instead rely entirely on criminal or civil judicial processes. On the other hand, many jurisdictions do have “adult protection” legislation, which creates broad powers of intervention into the affairs of adults, whether they are legally capable or incapable: it is the LCO’s observation that some of the debate regarding the PGT’s complaint and investigation powers results either from a confusion with or a desire for such a broader regime.
Sections 27 and 62 of the SDA provide the PGT with the duty and the powers to investigate “any allegation that a person is incapable” with respect to either property or personal care and that “serious adverse effects are occurring or may occur as a result”.
The SDA gives the PGT significant discretion in determining the steps necessary for an investigation, as well as powers of entry and access to records for the purposes of carrying out these investigations.[301]
If the results of the investigation reveal reasonable grounds to believe that a person is incapable and that serious adverse effects, as defined in the legislation, are or may be occurring, the PGT shall apply to the court for a temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. The order must set out the powers and any conditions associated with the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order.
The connection of the complaint and investigation function with the potential outcome of guardianship by the PGT is worth emphasizing: the only action that the PGT is statutorily empowered to take as a result of an investigation is an application for temporary guardianship, which, although temporary, is nevertheless a very significant intervention in the life of the affected individual. The legislation implicitly therefore does not contemplate investigations in any but the most serious matters.
In the 2013-2014 fiscal year, the PGT’s Investigations Unit received over 10,000 recorded communications. Most of these were referred elsewhere for appropriate action, including to family, the Capacity Assessment Office, private lawyers, Community Care Access Centres, health practitioners, and the police or other law enforcement. As a result of these communications, 239 investigations were opened. During that fiscal year, 214 investigations were completed. Sixty-one of these resulted in guardianship for the PGT under the provisions of the SDA regarding statutory guardianship; 78 were referred elsewhere, including to family, a community agency or police; in 63 cases, the investigation was concluded with a determination that an application for temporary guardianship was not required according to the statutory test; 3 were closed for other reasons, such as the death of the allegedly incapable person; and 8 resulted in an application to the court for guardianship by the PGT.[302]
C. Areas of Concern
1. Access to the Law
Access to the law is critical in the MHLC’s[Mental Health Legal Committee] submission. No matter how well a law is written, if there is no meaningful communication of rights and no practical access to legal representation for the individual affected, the law is futile.[303]
A paper commissioned by the LCO from the ARCH Disability Law Centre emphasized the close connection between dispute resolution mechanisms and principles such as dignity and accessibility.
Whatever forms the dispute resolution mechanisms take, a key consideration will be ensuring that such mechanisms respect the principle of accessibility, which requires that safeguards related to legal capacity be accessible for persons with disabilities. Consideration should be given to providing supports to assist persons with capacity issues to access and use dispute resolution mechanisms. Such mechanisms must also be crafted to respect the principle of inherent dignity and worth, which requires meaningful mechanisms to ensure that people can raise concerns about mistreatment or abuse and receive meaningful redress. At minimum, dispute resolution mechanisms must be provided in a timely manner, must be navigable and useable by persons with capacity issues, and must be provided at no cost to low-income persons.[304]
During the consultations, a widespread view was expressed that the court-based mechanisms under the SDA for external appointments, oversight and dispute resolution are simply inaccessible to the vast majority of individuals who are affected by the legislation, whether individuals who lack or may lack legal capacity, or their family members or substitute decision-makers.
Stakeholders widely perceive that the implementation of the SDA is significantly distorted by barriers related to cost and complexity. It is worth remembering that as originally conceived and passed, the SDA was to be accompanied by the extensive advocacy supports envisioned in the Advocacy Act, as described in the Discussion Paper at Part Four Ch IIIB. The repeal of the Advocacy Act was not accompanied by alternative supports for persons directly affected by the SDA: rather, vulnerable individuals were left to navigate a complex system on their own. Whatever the flaws or benefits of the scheme developed in the Advocacy Act, the central insight underlying that Act remains valid: that special attention is required to ensure that individuals who lack or may lack legal capacity have meaningful access to their rights.
Court-based processes are, by their nature, complicated, technical and often intimidating, and so very difficult for individuals to navigate effectively or with confidence without significant advice and navigational supports.
A lot of people are very put off, and it’s a very daunting procedure and when it happens it is, kind of like, the world has blown up around you and now everything has descended into chaos and you have to lawyer up and everyone’s losing their minds, essentially.
Focus Group, Community Health and Social Service Providers, September 26, 2014
It is in many cases not realistic for individuals to attempt to navigate these processes on their own, and this is particularly true for individuals who lack or may lack legal capacity, and whose needs are intended to be at the centre of this area of the law.
In areas of the law where self-representation before the courts has become increasingly common, such as family law, significant efforts have been made to assist individuals who represent themselves. Initiatives include the development of specialized Unified Family Law Courts in several areas of Ontario, the Family Law Information Centres, and the creation of various tools and information materials intended to assist individuals, such as Legal Aid Ontario’s Family Law Information Program and the Law Society of Upper Canada’s information portal.[305] The numbers of persons involved in guardianship litigation being so much smaller, similar supports and tools are not available for this group. And certainly, the development of such supports has not resolved the struggles within the family law system to ensure that individuals are effectively able to access the law: the LCO’s Report, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity identifies the many ways in which the phenomenon of litigants without lawyers taxes both individuals and the justice system, including the decision of some Ontarians not to access the justice system at all and to forego exercising their rights.[306]
In cases related to the Substitute Decisions Act, the cost of legal advice and representation for an application to court can be beyond the reach of many families. During the LCO’s focus groups, one trusts and estates lawyer referred to litigation in this area as “the sport of kings”. Practically speaking, redress is unavailable because it is beyond the individual’s resources.
Accessibility issues and access to justice issues are as apparent in this area as in all areas of the civil law system in Ontario. There is a significant hardship surrounding individuals who do not have the resources to pursue litigation at the Superior Court of Justice of appeals from the CCB and other applications under the SDA. In both cases, access to sufficient resources is essential.[307]
As ARCH Disability Law Centre has observed, this issue is exacerbated because the SDM has easier access to the funds of the individual who has been found to be legally incapable than does the individual him or herself. Citing an example from its own experience, ARCH commented,
[T]he SDA permits guardians to use the ‘incapable’ person’s funds to pay for legal counsel to challenge the ‘incapable’ person’s attempts to assert his/her autonomy. This is exactly what happened in Hazel’s case: her guardian used Hazel’s money to pay his own legal counsel, while at the same time refusing her access to her own funds, which she needed in order to defend herself. The guardian’s access to Hazel’s funds was automatic, while her ability to recoup costs if he ‘overspent’ would be based on her being able to convince a court to issue a costs award against the guardian. This latter process would impose further costs upon Hazel. Even if she was successful in obtaining an order from the court, there is no guarantee that her guardian would have had the resources to honour the order.[308]
Specific concerns are raised about the process for appointing and terminating guardianships. Concerns regarding the costs of the necessary Capacity Assessment by a designated Capacity Assessor were discussed in Chapter V. Where guardianship is entered through a court process, there are considerable additional expenses, including those for legal fees, which may be very significant, particularly for those of modest means. Family members commented that an application for court-appointed guardianship was far beyond their means. The LCO has heard that some third parties may not see guardianship as a viable option for some individuals who lack legal capacity, due to cost and process barriers, even where it is the legally appropriate course of action.
As a result of the perceived barriers to guardianship applications, service providers may, with the best of intentions, seek to do an “end run” around the legislation by, for example, allowing families to exercise powers beyond those set out in an existing POA. Families may seek to obtain guardianship powers beyond those strictly needed at the present time, because they do not wish to go through the trouble or expense of re-applying to the court as circumstances change.[309] On the other hand, families may also seek to avoid the costs and trouble of formal proceedings by such means as sharing PIN numbers or creating joint accounts, thereby exercising considerable powers with no mechanism for oversight or ability to impose legal responsibility for abuse. Chapter IX of this Interim Report addresses the importance of ensuring that guardianship is flexible, applied only where necessary, and tailored in time and scope to the needs of individuals. Flexibility and tailoring are challenging to achieve in a system that effectively discourages individuals and families from accessing it. That is, one of the fundamental purposes of this area of the law, to ensure that those who are able to make decisions independently are able to do so and to provide substitute decision-making for those who truly require such assistance, is significantly undermined by the challenges associated with accessing adjudication.
The practical inaccessibility of redress was a dominating theme in discussions of abuse and misuse of powers of attorney and guardianship. The result of these barriers to access is that abuse or misuse of the law may go unaddressed. As one trusts and estates lawyer commented, “That’s why I think a lot more of it does occur and falls under the radar screen, because people just can’t either practically or refuse to engage in a million dollar plus nightmare”.[310] As one individual told the LCO about her attempt to seek justice for what she believed had been the exploitation and mistreatment of her mother at the hands of a sibling: “Every door leads to a lawyer’s office”. In the end, she was unable to pursue redress for her parent.
This lack of meaningful access to adjudication of issues under the SDA affects every aspect of this law and is, in the view of the LCO, one of its central shortfalls. Without effective access to adjudication, individuals who need a guardianship to ensure that necessary decisions are appropriately made do not have access to this assistance, and those who do not need or no longer need a guardianship face significant barriers in preserving or restoring their autonomy. Abuse or misuse of substitute decision-making powers, whether under a guardianship or a power of attorney, finds no effective means of redress, unless it reaches the very high threshold necessary to justify the PGT applying for a temporary guardianship order.
2. Managing Disputes in the Context of Ongoing Relationships
There was considerable comment during the consultations on the challenges and opportunities posed by involvement in most disputes in this area of the law of parties who have had and may continue to have ongoing relationships, whether it is disputes within families about substitute decision-making, or differences between health professionals and their patients regarding legal capacity. The issues in this area often affect the fundamental rights of those whose legal capacity is lacking or in doubt. As a result, there is a significant inherent tension between the value of an adversarial approach that can assertively protect rights, and the importance of less formal or adversarial approaches in preserving relationships that may be essential to the well-being of the individual.
In the context of powers of attorney and guardianships, it was pointed out that relationship dynamics may play a dominating role in how the law is accessed or not accessed. In some cases, the desire to preserve relationships may inhibit the willingness of individuals to access an adversarial system.
[T]he challenge is there too that people often don’t want to bring a complaint [about abuse] because, you know, they want the person to stop but they don’t want to lose the contact.
Focus Group, Community Health and Social Service Providers, September 26, 2014
On the other hand, where families do enter the adversarial system, family relationships may be permanently destroyed, as individuals engage in no-holds barred, scorched earth tactics against other family members. The LCO spoke to a number of individuals who told very painful personal stories of family conflict: it was clear that, as high as the financial toll of these conflicts might be, the personal cost was greater. To lose, for example, the opportunity to say goodbye to a parent before his or her death, is a cost that cannot easily be reckoned. These conflicts may be fuelled, not only by the high stakes in the present moment and the emotional toll of the roles and decisions that families must take on in these circumstances, but also by long and complicated family histories. Adjudicators may have difficulty in reining in these highly emotional litigants. In this way, this area of the law takes on, in some of its aspects, some of the qualities and challenges of what is usually considered family law.
ARCH Disability Law Centre pointed out that appropriately designed dispute resolution processes may be able to further both the goal of upholding the legislation’s aims and of preserving relationships, as accessible and less adversarial approaches may reduce tensions between parties and preserve relationships.
[A] significant portion of the problems that arise in the context of guardianships involve issues other than financial mismanagement or fraud by the guardian. Many issues relate to conflict over how much freedom and autonomy a guardian allows a person who is subject to his/her guardianship. These are rarely issues that require litigation. However, they are issues of key importance to the daily lives of persons subject to guardianships. If left unresolved, these disputes can create serious tension between an ‘incapable’ person and his/her guardian. In cases where the issue may be resolved through litigation, this process is not accessible for many ‘incapable’ persons. Therefore, in a new legal capacity regime, ‘incapable’ persons must have access to effective dispute resolution mechanisms. This would reduce tensions between decision-makers and ‘incapable’ persons, preserve productive relations between them, and reduce the need for litigation.[311]
In the clinical setting, clinicians pointed out the tensions between their ongoing role as providers of treatment and the legal role that they must play at a CCB hearing.
I’m just glad you [the facilitator] raised the odd situation of being a physician, having to be purely in a legal role, at the same time your patient is sitting beside you, and you’re really wanting to operate purely from the clinical realm … There are avenues, but I think as physicians there’s a tension of, well, let’s see, do I keep them in the [legal] forum or do I discontinue the forum, do I really want to go to the forum extent when I think they’re going to challenge… I would rather that not be a challenge of any part of my [unclear] when I’m doing the clinical work. The forum is a clinical tool, and has to be used as a clinical tool, in the clinical realm and defined in the clinical realm. You know, I’ve learnt so much, I’ve gone through all the processes, and as I say, without exception, it’s been very positive and I think I’m a better clinician from it, even though it’s not purely a clinical [unclear] But there’s something very odd about the tensions you find yourself with.
Focus Group, Clinicians, September 12, 2014
Part of the challenge is also due to the difficulties in reconciling the medical and legal approaches to these issues. The LCO heard from various stakeholders about the importance of a meaningful mechanism for protecting the rights of patients and ensuring accountability for those who make decisions affecting their rights. For example, one participant in a focus group for rights advisers and advocates commented that “I find the adversarial system, the way it’s run is the only form of accountability that our doctors have”. On the other hand, clinicians felt that sometimes the focus on legal rights was ultimately counterproductive.
[W]e’re looking at this, the legal dimension versus the medical dimension, as well, and thinking about wellness and best outcomes versus thinking about rights and responsibilities, they don’t match well, so it might be a great success for the mental health bar in Toronto to have won this case, and we’re thinking, yes, but the person has to stay in hospital for a year and now they’re going to be untreated so it’s tough.
Focus Group, Clinicians, September 12, 2014
3. Responding to the Context
Consultees emphasized the importance of adjudicators who are knowledgeable not only about the law, but its broader context, so that they are able to understand the needs and values of those appearing before them, and work effectively within the multiple systems that surround this area of the law.
There is no doubt that adjudicators in this area face significant challenges. A number of trusts and estates lawyers pointed out to the LCO that increasingly they are seeing SDA cases that are really preliminary estate litigation, with families jockeying for advantage with respect to the disposition of the significant assets of the person who lacks or is alleged to lack legal capacity. This is often complicated litigation: it also has very little to do with the wellbeing of the person who lacks or may lack legal capacity, or with the ultimate purposes of the legislation. As the Mental Health Legal Committee has pointed out, “Individuals and families with significant resources have access to the courts but in some cases tend to use disputes surrounding incapable relatives as proxies for other conflicts”.[312]
Several participants pointed out that not infrequently in these cases, the person who is ostensibly at the centre of the dispute is not only not represented, but is not present, so that this individual is symbolically and practically marginalized. It is important that systems dealing with legal capacity and decision-making find ways to meet the challenge of keeping the affected individual at the centre of the process.
In the context of hearings by the CCB, the LCO was told that the composition of that Tribunal is heavily weighted towards expertise in the area of mental health and the law in that area, reflecting the current mix of cases. However, demographics and social trends point to increasing pressures in other areas, such as issues related to capacity to consent to admission to long-term care, end-of-life issues, and other issues associated with aging and the law. The Rasouli case, a high-profile dispute related to substitute decision-making and consent to the withdrawal of treatment for an unconscious patient, points to the very important role that the CCB plays, and may increasingly play, in Ontario’s approach to the difficult and controversial issues associated with end of life.[313] As a result, the current structure and composition of the CCB may need adjustments to reflect these emerging realities.
In an echo of the concerns voiced in the context of SDA adjudication, persons who had experienced the mental health system and CCB processes expressed a desire for a process more consistently able to give mental health patients the experience of being meaningfully heard, regardless of the ultimate decision. A number of these individuals spoke to their experience of the CCB process as an extension of the mental health system and of their psychiatrists’ overwhelming power in their lives, and some spoke movingly of the transformative power of being heard and respected despite their illness, and again, regardless of the ultimate decision.
4. Addressing Concerns Regarding Abuse
Many service providers raised concerns that there are no clear pathways to remedying any but the most evident and serious cases of abuse.
[W]e have the legislation, and we can spout the legislation, but what actual supports do we have to help us push and actually come and bring that legislation and support that legislation? Because sometimes you feel like, okay, I have a piece of paper, but you don’t have anything to back the… back it up or be able to… like in the situation you were talking about, like, with the law, like, at what point can we get them to step in? Or what supports do we have through the actual law and not just with the legislation?
Focus Group, Toronto Community Care Access Centre Staff, November 4, 2014
The lack of supports was a particular difficulty for service providers who are not experts in this area of the law, and so do not encounter these issues every day. As some financial services institutions pointed out to the LCO, the frontline workers who are most likely to encounter a troubling situation will generally have backgrounds in financial and business matters, not social services. Further, a service provider who notices something suspicious and calls in the authorities will, if no clear problem is found, be unlikely to be provided any further access to the individual: raising the issue may then be ultimately to the detriment of the individual who the complaint was meant to protect. If the police or the PGT do not view the issue as meeting their threshold, the proper course of action may not be clear. To request a passing of accounts or make an application for guardianship is a costly and complicated proceeding: it may be beyond the resources of a family member, and is most often not an appropriate course of action for a service provider. Some long-term care home providers commented favourably on the requirements and mechanisms for reporting concerns about abuse under the Long-Term Care Homes Act, 2007, as setting clear standards, processes and duties, and so making it easy for long-term care home providers to do the right thing.[314]
Participants in the consultations expressed appreciation for the important role of the PGT’s powers to investigate and to seek temporary guardianship, as well as placing these in the context of criminal law remedies and the reporting provisions under the Long-Term Care Homes Act, 2007, and the Social Inclusion Act.[315] However, they also expressed a keen sense of the limitations of the current mechanisms. Concerns were expressed that the jurisdiction of the PGT was too narrow or that the PGT interpreted it overly narrowly, so that these provisions offer insufficient assistance in situations of abuse or misuse.
It’s a huge issue. We train our staff to get as many facts as they can, otherwise the PGT will hang up, and they’ll say, call back when you know what you’re talking about, and they’ll say, but I’ve got a problem here, I suspect this… and we’ve worked with the PGT. You know, they’re good people, that’s not the issue. It’s just that they can’t deal with these. What they see is off-the-wall requests. The other thing we have, which is this horrendous workaround that we have to do because of systematic barriers, so our staff will see issues, say, that somebody that they believe is being abused, right? Financially, physically… they have to, at this point in time, we have to do… half the time, we can’t get them assessed for capacity, because that costs money, right, and there’s no way, because it’s the abuser, the SDM, who’s in fact… well, who controls it. So we do this elaborate move, and sometimes we use the Health Care Consent Act, which is all we have as evaluators to… in this process, to get them evaluated as incapable for long-term care, trying to precipitate. Which is not the issue at all. We want to keep them at home if we could, but we’re trying to get away to get the PGT’s attention, because we know the PGT won’t usually follow through unless the client is incapable, right… assessed as incapable, for finance or personal care, right?
Focus Group, Joint Centre for Bioethics, October 1, 2014
Most importantly, many felt that the threshold for a PGT investigation is currently too high, restricted as it is to concerns related to “serious adverse effects”. Many felt that only the most serious cases were being investigated. As noted above, the other mechanisms available under the legislation to address concerns, such as bringing an application for guardianship or seeking the passing of accounts are seen as either unrealistic or inaccessible. As a result, there may be no meaningful way to address concerns about abuse that do not meet the threshold.
In ACE’s experience, persons calling the office of the PGT to report [abuse-related] concerns are often told that they need better proof of incapacity before the PGT will commence an investigation. ACE has seen numerous examples of the Office of the PGT narrowly interpreting ‘serious adverse effect’ – limiting their investigation to only the more extreme cases of abuse and neglect.
ACE recognizes that the PGT is doing the most that it can with limited resources. However, as the government agency primarily responsible for investigating concerns of neglect and abuse of mentally incapable adults, the PGT is not meeting the need in Ontario. ACE recommends reforming the Substitute Decisions Act to require the PGT to commence an investigation into all allegations of abuse and neglect of the mentally incapable. Of course, ACE anticipates that the scope of the investigation will vary depending on the allegations raised and the information obtained.[316]
Further, it was suggested that the PGT should have a wider range of remedies available following an investigation, beyond application for temporary guardianship. This suggestion is often paired with proposals to broaden the range of issues which the PGT has the power to investigate. For example, Joffe and Montigny propose a Monitoring and Advocacy Office with a broad mandate, which could, upon receipt and investigation of a complaint, have wide powers to resolve the complaint, including through mediation and other forms of dispute resolution. [317]
Finally, there may be perceived conflicts of interest for the PGT in this role, as the results of the investigation may ultimately lead to guardianship by the PGT over the individual.
D. Applying the Frameworks
The Framework for the Law as It Affects Older Adults highlights that “[t]he principles of respecting dignity and worth and of security mean that there must be meaningful mechanisms to ensure that older adults are able to raise concerns about mistreatment, exploitation or abuse, that there is meaningful redress when such issues arise, and that they are not subject to retaliation for doing so”.[318] A corresponding statement appears in Step 6 in the Framework for the Law as It Affects Persons with Disabilities. The connection between meaningful access to rights enforcement mechanisms and the principles is particularly clear in this area of the law where autonomy, dignity and security/safety are directly at stake in the implementation of the law.
The preceding discussion also points to how dispute resolution mechanisms in this area of the law may or may not support the principles of participation and inclusion, by providing means to resolve disputes while maintaining important relationships, and of the importance of fair and effective dispute resolution mechanisms to families, professionals and service providers, highlighting the principle of membership in the broader community.
There are many positive aspects of the current system, including the Legal Aid funding of supports and the availability of rights advice for many proceedings before the CCB, the relatively accessible and expeditious CCB processes, and the Section 3 Counsel provisions. The Framework questions assist in identifying the following ways in which current mechanisms fall short:
· shortfalls in mechanisms to address power imbalances and prevent potential retaliation against those who raise issues, for example in the barriers faced by persons who wish to challenge the appointment of a guardian over them, or difficulties that persons who lack or may lack legal capacity may have in attempting to raise concerns about how a substitute decision-maker is exercising his or her powers;
· the lack of navigational assistance for individuals who lack legal capacity or their families to help them in accessing systems which are highly formal, process-based and intimidating; and
· the problems associated with the implementation of the Section 3 Counsel program, including the lack of protections to ensure unimpeded access to counsel by the person who lacks or may lack legal capacity.
The Frameworks highlight some strategies that may be employed to improve access to rights enforcement and dispute resolution, including:
· simplifying processes;
· providing specialized supports and assistance for persons who face barriers due to disability, older age, low-income or other aspects of identity; and
· empowering individuals by improving access to information and supports that can enable self-advocacy.
The merits and feasibility of these various approaches in this particular context are considered in the remainder of this Chapter.
E. Draft Recommendations
1. Increasing Access to Rights Enforcement and Dispute Resolution under the Substitute Decisions Act, 1992
Consultees emphasized that for those directly affected by the law, the ability to be meaningfully heard on issues that directly affect their lives is central to their wellbeing. In evaluating mechanisms for access, the key considerations are whether the proposed forum provides a meaningful, expert and accessible determination.
[O]ur clients want their day in court. What that court is, is to be determined. But it should be more sensitised and almost individualised to our clients. Clients just want to be heard and if the CCB does it, great, Superior Court does it, but I wish there was a mechanism where everybody could be pleased that, you know, they’ve had a fair hearing, everybody had their fair say and a decision was reached. And that’s, sort of, part of the recovery process …
Focus Group, Rights Advisers and Advocates, September 25, 2014
The Discussion Paper identified the following three key options, among others, for improving access to the law under the SDA, all of which received some comment during the LCO’s public consultations:
1. Develop a specialty court or specialized court processes to improve access to rights enforcement and dispute resolution under the SDA:
2. Move some or all SDA functions currently under the jurisdiction of the Superior Court of Justice to an administrative tribunal, most likely an expanded CCB; or
3. An expanded complaints and investigation function.
These options are not all mutually exclusive, and in fact implementation of some approaches may support the effectiveness of others. Based on the results of the consultations, as well as the LCO’s research and analysis, the LCO recommends a combination of approaches to strengthen access to rights enforcement and dispute resolution under the SDA.
Specialized Court or Specialized Court Processes
In the LCO’s Discussion Paper, consideration was given to whether Ontario’s legal capacity and decision-making system would benefit from the creation of a specialty court focussed on these issues. Ontario has created a number of specialized courts that are able to provide expert, targeted and holistic services to better address their particular contexts. The Unified Family Courts and the Mental Health Court are two well-regarded examples of such an approach to justice. The Mental Health Court was formed in 1998, in response to the strains placed on the Ontario Court of Justice by the increasing numbers of mentally disordered accused at Toronto’s Old City Hall location. Toronto’s Mental Health Court provides diversion services, accommodates the needs of mentally ill accused, expeditiously deals with issues of “fitness to stand trial” and attempts to “slow down the ‘revolving door’”. It provides expert and holistic services: the Crown Attorneys are dedicated, permanent staff, there are nine Mental Health Workers attached to the Court, a psychiatrist from the Centre for Addiction and Mental Health attends daily to perform “stand down assessments”, and court clerks have specialized knowledge of the system.[319]
The United Kingdom’s Court of Protection (CoP) provides an example of a specialized court in the context of legal capacity and decision-making law. It is a court that has a specific mandate to address this area of the law, and it has a specialized set of tools at its disposal for addressing the issues. The CoP has broad jurisdiction, including the following:
· making determinations of capacity;
· making declarations, decisions or orders on financial or welfare matters affecting persons who have been found to lack capacity;
· appointing and removing deputies to make ongoing decisions for persons who have been found to lack capacity;
· determining the validity of powers of attorney;
· considering objections to the registration of a power of attorney.[320]
The CoP has tailored processes and powers, including specialized rules of procedure,[321] a comprehensive, plain language and authoritative “Code of Practice”,[322] dedicated staff who are able to provide information and limited assistance to individuals attempting to complete the CoP’s complicated forms and processes, and the ability to request reports from a Court Visitor, the Public Guardian and Trustee, a Local Authority or a National Health Service body.[323]
As was noted above, the Ontario Superior Court of Justice currently hears between 200 and 260 applications for guardianship each year. There are in addition an unknown number of applications regarding variances, terminations, or oversight functions related to either guardianship or powers of attorney. From discussions with practitioners, the overall numbers of cases in this area of the law are not high, likely because of the accessibility issues highlighted earlier in this chapter.
A specialized court dealing with legal capacity and guardianship issues could institute tailored processes and supports, both to facilitate access and to enable more holistic approaches to the issues, as has been done with the Mental Health Court, for example. However, the LCO believes this is likely not a viable solution in Ontario, because the numbers of cases would not make it practicable, unless perhaps the matters currently dealt with by the CCB were transferred back to the Court, an option which current users of the CCB are unlikely to find immediately appealing. The existence of the CCB means that the courts will always be dealing only with a portion of the Ontario cases related to legal capacity and decision-making, unlike, for example, the Court of Protection of England and Wales which addresses all issues in this area of the law. Significant investments in supports would likely be necessary to reduce barriers to access to the courts, both actual and perceived, to encourage those individuals and families who currently abandon attempts to seek redress to instead access the courts. Accordingly, the LCO does not recommend the creation of a specialized court to address legal capacity and guardianship issues.
The characteristics of specialized courts, however, point to the usefulness of being able to tailor adjudication by the appropriate body to the context, in areas such as these where the law is closely tied to broader social issues and where those affected may need specialized supports or assistance to effectively access adjudication. Expertise, a holistic approach, and an emphasis on developing processes that can accommodate special needs, are all elements that may be of assistance in increasing meaningful access to the law for persons impacted by issues related to legal capacity, decision-making and guardianship. As indicated below, the LCO believes that an administrative tribunal can provide the kind of specialized expertise and tailored approaches necessary for effective and accessible adjudication in this area of the law.
An Expanded and Reformed Administrative Tribunal
In Part Four Ch IIC of the Discussion Paper, the LCO noted that some commentators had expressed interest in expanding the role of administrative tribunals in Ontario’s legal capacity, decision-making and guardianship system, and raised for consideration whether there might be a benefit in moving some or all of the functions currently performed by the Superior Court of Justice to an administrative tribunal, such as an expanded and reformed version of the CCB. Consultations indicated broad interest in reforms in this direction.
Administrative tribunals are commonly created as a means of providing less costly, less formal and more specialized adjudication, In Rasannen v Rosemount Instruments Ltd, Justice Abella, writing for the Ontario Court of Appeal, describes the role and function of administrative tribunals as follows:
They were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly .[324]
Sir Andrew Leggatt’s comprehensive 2001 Report of the Review of Tribunals, Tribunals for Users: One System, One Service, which made recommendations for reform of Britain’s administrative tribunal system, commented,
Choosing a tribunal to decide disputes should bring two distinctive advantages for users. First, tribunal decisions are often made jointly by a panel of people who pool legal and other expert knowledge, and are the better for that range of skills. Secondly, tribunals’ procedures and approach to overseeing the preparation of cases and their hearing can be simpler and more informal than the courts, even after the civil justice reforms. Most users ought therefore to be capable of preparing and presenting their cases to the tribunal themselves, providing they have the right kind of help. Enabling that kind of direct participation is an important justification for establishing tribunals at all.[325]
The Leggatt Report also emphasizes as a potential benefit of administrative tribunals their ability to employ and develop specialized subject matter expertise, particularly when dealing with issues that involve broader policy frameworks or contexts, or “polycentric” issues in which there are multiple interacting interests or considerations. Tribunal members are often expected to draw on contextual socio-economic and cultural factors and to leverage expert knowledge to further the policy goals enunciated by Parliament.[326]
As was noted in the Discussion Paper, the Australian states moved jurisdiction over legal capacity, decision-making and guardianship issues to administrative tribunals during a wave of reform in the 1980s and early 1990s. Each of the state tribunals has somewhat different powers and structures. The move has been generally viewed as a success. One comprehensive review concluded:
Tribunals tend to pay more attention to social context and functioning, and are less likely to appoint proxies. This may have something to do with the tribunal form or the more inquisitorial style of hearing. But it also reflects a different narrative, a different vision of what the jurisdiction is about. They need social information to identify socio-legal crises. They may be reluctant to appoint substitutes, but they are more interventionist than courts in addressing systemic issues. The tribunals also pay more attention to incorporating the person for whom the application was made into an alliance.[327]
Law reform commissions in Queensland and in Victoria have recently undertaken comprehensive reviews of their legislation in this area, and while they suggest adjustments to their respective tribunal systems, there is no suggestion that these matters would be better dealt with by the courts.[328] The Victorian Law Reform Commission briefly considered the international use of courts as venues for guardianship hearings and noted that it did not receive any suggestions about moving away from its tribunal, concluding that “Australia’s tribunal-based approach to guardianship has been one of its strongest features and should continue”.[329]
During the LCO’s public consultations, there was considerable interest in the use of an administrative tribunal for adjudication of issues under the SDA. Generally, this took the form of proposals to expand the jurisdiction of the CCB.
The creation of the CCB was one of the significant innovations implemented through the reforms of the 1990s. Stakeholder responses during the LCO’s consultations indicate that this innovation is widely viewed as a success. While consultees raised specific concerns regarding the CCB, including the perennial debate as to whether its approach is too rights-focused or insufficiently so, and whether the CCB has the appropriate expertise for the range of cases before it, there was strong general support for the CCB as a body that has the capacity to develop and employ expertise in this area of the law, provides speedy and comparatively flexible adjudication of disputes, and is relatively accessible. The proposal to expand the jurisdiction of the CCB into the realm of the SDA can be understood as recognizing and aiming to build on this success.
Transfer of jurisdiction of matters under the SDA to an administrative tribunal, and more specifically to the CCB, is seen as having a number of potential benefits.
Specialization: As the Leggatt Report emphasizes, administrative tribunals have the capacity to specialize in the areas of the law under their jurisdiction. Adjudicators may be chosen for a range of related expertise: as was noted earlier in this Chapter, the CCB currently includes among its adjudicators approximately one-third lawyers, one-third psychiatrists, and one-third members of the public who bring a range of knowledge and experience. As well, the focus on a single area of the law allows adjudicators to develop deeper knowledge of the particular dynamics and contexts of the cases before them.
In addition, administrative tribunals can tailor their processes and procedures to the needs of their particular clientele. Because of their specialization, there is an opportunity for these tribunals to develop an understanding of the needs and circumstances of those they service and the barriers they face in accessing justice, and to adjust their own operation to address these barriers. The CCB’s practice of holding hearings in a variety of venues, including, importantly, in psychiatric facilities or hospitals, is an example of how administrative tribunals can adapt to address barriers and needs.
As the discussion above emphasizes, there are examples in the Ontario context of courts specializing in this way, although it is inevitably a more challenging endeavor, given the structure of the courts. Further, the small number of cases currently before the Superior Court of Justice makes it difficult for the Court to develop specialized expertise in this area.
Accessibility: Among stakeholders consulted, considerable support for the idea of transferring SDA matters to an administrative tribunal arises from the perception that administrative tribunals can provide a more accessible and less intimidating form of justice than the current court-based system, thus addressing some of the most significant concerns regarding barriers to dispute resolution and rights enforcement in this area. For example, the Northumberland Community Legal Centre commented in its submission that issues such as abuse of powers of attorney “should be removed from the courts as those processes are often too long, too costly, and too unavailable for low income vulnerable persons”.[330] Certainly, as was referenced in Rasannen v. Rosemount Instruments Ltd, increasing accessibility and reducing complexity and expense is part of the rationale for administrative tribunals as a whole.
A possible risk in delegating adjudication related to the SDA to an administrative tribunal is the trend towards “judicialization” of administrative justice, in which tribunals become more court-like, more formal and more costly.[331] It would be important, in delegating powers under the SDA, to carefully consider the tribunal’s organizational structure and procedural practices in the light of navigability and the particular challenges that face this group of potential applicants.[332]
Flexibility: increased specialization and reduced barriers to access may allow administrative tribunals to provide more flexible, contextual and tailored responses to legal capacity, decision-making and guardianship issues. In Chapter IX, the LCO has proposed a number of draft recommendations intended to better tailor the use of guardianship to the actual needs of individuals. As is discussed in that Chapter, while most of these draft recommendations can be implemented within the current system, they are unlikely to have a significant impact so long as the cost and intimidating procedural requirements of Ontario’s adjudication mechanisms in this area act as a deterrent to accessing the law, and inadvertently encourage those who access the system to seek maximum powers as a means of avoiding the need for a return to adjudication.
System coordination: In practice, issues related to property, personal care and treatment are closely intertwined. While the practicalities of legal capacity and decision-making issues differ between health care and other settings because of the nature of the context, the underlying principles and challenges are the same. The current division of legal capacity and decision-making adjudication between the CCB and the Superior Court of Justice is somewhat artificial, and contributes to the challenges in navigating and effectively employing the system. For example, in making decisions in applications regarding prior capable wishes, the CCB must often consider the provisions and effect of powers of attorney for personal care. However, the CCB does not appear to have jurisdiction to consider the validity of the powers of attorney that it examines: if issues are raised on this point, only the Superior Court of Justice can address these,[333] so that the core issues must be, in effect, severed. There is merit to the idea of a unified approach, within a single institution, to this area of the law.
It is the view of the LCO that, given the existence of the CCB, it would be more sensible to build on this existing tribunal, rather than creating a new body. However, it should be acknowledged that the CCB, as it currently exists, is very much focused in the area of mental health law, and that this has significantly influenced its composition and procedures. The CCB has expertise in issues related to legal capacity and decision-making, as well as in serving marginalized communities and balancing the difficult ethical and policy challenges that underlie this area of the law. This provides an important foundation, but it would be important to re-examine the composition, training and processes of the CCB to effectively address a broader mandate, including with respect to addressing the financial issues often raised under the SDA. There are over 200 administrative tribunals in Ontario, addressing a wide variety of issues, ranging from fundamental rights to environmental protection to financial services and securities, so that there is considerable precedent to draw from in adapting the CCB to address a broader mandate.
As noted above, the CCB as presently constituted includes a number of highly beneficial features, including a history of and commitment to speedy adjudication; its uncommon practice of taking hearings to the location of the individual, with the accompanying focus on ensuring that the person at the centre of the issue has the opportunity to be present and participate; and relatively strong supports to accessibility through Legal Aid Ontario. All of these features would bring considerable benefit to issues currently adjudicated under the SDA.
Some have expressed concern about the ability of an administrative tribunal such as the CCB to address some of the more challenging matters currently dealt with by the Court under the SDA. This is the view expressed in a House of Lords report on the “post-legislative scrutiny” of England and Wales’ Mental Capacity Act, 2005 that considered and ultimately dismissed suggestions to replace the Court of Protection (described above) with a tribunal structure. The report stated, “While we have sympathy with concerns raised regarding access and delays, we believe that the replacement of the Court with a new tribunal system would risk the loss of expertise and potentially increase costs in the system”.[334] Specifically, the authors raised concerns about the fact-finding abilities of tribunals, and the logistics for tribunals of making cases that must frequently re-convene. In the case of the CoP, the choice facing the authors was not between the judicial system in general and an administrative tribunal, but between an existing expert specialized court and the development of a new administrative tribunal.
Other consultees pointed out, however, that the CCB is already responsible for addressing issues related to end-of-life, which are as weighty, complex and controversial as any legal issue can be.
The use of the provisions of the SDA by warring families to extensively litigate access to funds, particularly in situations where the person lacking or alleged to lack legal capacity has substantial assets, raises a different set of concerns: that is, whether the CCB, as currently constituted, has the ability to effectively manage the dynamics of cases in which the parties are willing to spend immense funds and to take an extremely adversarial approach. The issues are not necessarily more difficult, but managing the litigating parties may be challenging. This is, however, not a challenge unique to legal capacity and decision-making law. Further, it is the view of the LCO, as is expressed elsewhere, that to the extent that the provisions of the SDA are being used to pursue preliminary estate litigation and similar matters, these are misuses of legal capacity and decision-making laws, which have as their purpose the benefit of the person who lacks or may lack legal capacity.
On balance, the LCO believes that in the Ontario context, where an administrative tribunal dealing with similar and related issues already exists and has demonstrated its abilities to provide effective, expert and comparatively accessible adjudication, it makes sense to transfer jurisdiction to that body of other issues related to legal capacity and decision-making, as a means of increasing the specialization, accessibility, flexibility and coordination of rights enforcement and dispute resolution in this area of the law.
This approach would not, in the view of the LCO, require any reduction in the other areas of the CCB’s mandate, such as its responsibilities under PHIPA or the Mandatory Blood Testing Act.
In order for this approach to be most effective, it should be accompanied by reforms to assist the CCB to fulfil this new mandate. It may be useful to reconsider, for example, the range of expertise found among CCB members and the merits of including a core of full-time members within the composition of the Board. Certainly, the expansion of issues and clientele would require a re-examination of the extent and nature of the training provided to adjudicators, and the responsibility for addressing financial issues and long-term appointments may necessitate a re-thinking of some aspects of the current rules of practice.
As noted in section B2 of this Chapter, the CCB currently may hear applications for directions when the appropriate application of the HCCA with respect to a required decision is not clear, and to determine whether an SDM is acting in compliance with the requirements of the HCCA for how decisions are to be made (colloquially known as “Form G” applications, in reference to the mandated CCB form for commencing such an application). Extending such applications to issues under the SDA would not only promote consistency in the CCB’s role, but would also create a means by which concerns regarding the abuse or misuse of powers of attorney or guardianship, a key issue identified in section C1, could be more easily addressed.
Currently, a Form G application can be brought only by the health care practitioner proposing treatment, person proposing admission to a care facility or staff member responsible for the personal assistance service. The LCO received a number of proposals that the person directly affected also be empowered to bring a “Form G” application to the CCB. Both the Advocacy Centre for the Elderly and the Mental Health Legal Committee proposed such an amendment in their formal submissions. The LCO believes that while many individuals with concerns regarding the actions of their SDM would not, practically speaking, be in a position to bring such an application, such an amendment would be of value to a number of individuals who have the supports necessary to bring an application, and would be consistent with the broad goal of encouraging attention to the values and wishes of the person lacking legal capacity.
It has also been proposed that an opportunity be created for family or others who have a close relationship with the individual lacking legal capacity to be empowered to bring a Form G application, and in this sense to act as advocates for the individual. It has been pointed out that health practitioners may have many reasons for not wishing to bring an application and may not always be in a position to ascertain whether the SDM is in fact complying with the requirements of the legislation. Careful thought would be required to define the circumstances in which family or friends could bring such an application, but the LCO believes that this proposal also has value.
There would also be a number of practical issues to consider. Earlier in the discussion, the issue of validity of powers of attorney was touched on: careful consideration would be required regarding whether this issue should be transferred to the CCB. While issues related to, for example, whether the individual had the requisite capacity to create the power of attorney, issues related to undue influence are in the view of some more suited to consideration by the Court.
Chapter VI discussed the creation of new personal appointments in the form of support authorizations: such a reform would require the creation of dispute resolution and enforcement mechanisms. Should the government take up the LCO’s draft recommendations regarding support authorizations, an expansion of the jurisdiction of the CCB should include oversight of support authorizations, as well as recourse for the monitors recommended in Chapter VII.
Expanded and Strengthened Complaints and Investigation Function
The expansion and strengthening of Ontario’s complaints and investigation mechanisms related to misuse of statutory decision-making powers or abuse of persons lacking legal capacity was identified as a priority in many of the focus groups, as well as in submissions. It was suggested that the mandate of the PGT investigation powers be expanded beyond the current focus on serious adverse effects and the necessity of a temporary guardianship by the PGT, to enable it to examine and address not only cases of serious abuse or neglect, but also misuse of SDM powers. There are three related elements here:
· the level of discretion available to the PGT with respect to investigation of complaints;
· the types of issues which the PGT is empowered to address (currently only those related to “serious adverse effects” resulting from a lack of capacity); and
· the remedies available to the PGT upon conclusion of an investigation, which currently include only an application for temporary guardianship.
In the Australian state of Victoria, the Public Advocate includes among its responsibilities “investigating complaints or allegations of abuse or exploitation of people with disabilities, or any need for, or inappropriate use of, guardianship”.[335] Investigations may commence either at the instigation of the Victorian Civil and Administrative Tribunal (VCAT) or through a complaint from any person. The Victorian Law Reform Commission (VLRC) notes, “While these provisions are expressed broadly, they are limited in their application to circumstances where a guardianship or administration order might be appropriate. Further, the Public Advocate does not have a comprehensive range of powers to carry out these functions.”[336] The VLRC recommended strengthening the investigative powers of the Public Advocate, as well as expanding this role to include situations where there is concern that a person undertaking the roles of supporter, co-decision-maker or private guardians might be misusing their powers or acting inappropriately by abusing, neglecting or exploiting a person with impaired decision-making ability due to a disability.[337]
In Queensland, the Adult Guardian has the power to investigate any complaint or allegation that an adult with impaired capacity is being, or has been, neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements.[338] As part of this mandate, the Adult Guardian has the power to compel the production of detailed accounts from attorneys or administrators, and a right to “all information necessary to investigate a complaint or allegation or to carry out an audit”.[339] After an investigation or audit is completed, the Adult Guardian must create a report and provide it to the person at whose request it was carried out, as well as to every attorney, administrator or guardian for the person, and any interested party.[340] If the Adult Guardian determines that the request for an investigation was frivolous, vexatious or without good cause, the person requesting the investigation may be required to pay the amount for the cost of the investigation that the Adult Guardian considers appropriate. Similarly, where the Adult Guardian determines that the attorney or guardian has contravened the law with respect to finances, the Adult Guardian can again require personal payment of the investigation costs. In its review of Queensland’s legal capacity and guardianship laws, the Queensland Law Reform Commission considered at some length whether the Adult Guardian ought to have a mandatory duty to investigate all complaints. It rejected this proposal, saying
In the Commission’s view, section 180 of the Guardianship and Administration Act 2000 (Qld) should continue to provide that the Adult Guardian has a discretion in relation to the complaints and allegations that are investigated. While, on one level, it may appear attractive to suggest that the Adult Guardian should be required to investigate complaints or allegations made by other agencies within the guardianship system, the Commission is concerned that, if the legislation were amended to impose a duty on the Adult Guardian to investigate complaints or allegations made by certain bodies, compliance with that duty could adversely affect the Adult Guardian’s ability to prioritise referrals and to investigate those complaints and allegations where the adults concerned appear to be most at risk.[341]
Under the Mental Capacity Act 2005 of England and Wales, the Public Guardian works jointly with other agencies to address concerns about abuse. The Public Guardian is empowered to receive “representations” (including complaints) about how deputies or persons acting under a power of attorney are exercising their powers.[342] The Public Guardian has investigatory powers, although it may investigate jointly with other bodies such as social services, National Health Services bodies, police or other bodies. It may also refer complaints to appropriate agencies, although it retains responsibility for ensuring that the Court of Protection has the information it requires to take any necessary actions with respect to attorneys or deputies.[343]
The LCO has considered proposals that would require the PGT to carry out at least some investigation of all complaints received, but has concluded that such a requirement would likely require considerable investment to relatively little benefit. While such a requirement could be accompanied by language enabling the PGT to dismiss without investigation complaints that are, for example, out of jurisdiction or trivial or vexatious, the formalization of the PGT’s discretion and the liability of this process to judicial review would be burdensome. Further, it would not address the fundamental question, which is that of the actual jurisdiction and remedies available to the PGT with respect to complaints and investigations.
From the consultations, it appears that some of the pressure on Ontario’s investigative system arises from the relative inaccessibility of the available court-based dispute resolution mechanisms. Where a family member believes that a guardianship order or power of attorney is being misused, an application to the Superior Court of Justice for a passing of accounts or to apply for guardianship is a pathway available only to persons of considerable means and stamina. Reforms to Ontario’s adjudicative mechanisms related to the SDA may reduce some of the pressure on the PGT’s available mechanisms.
An expanded complaints and investigation function within the PGT would certainly be one means of expanding access to the rights protected by the HCCA. As ARCH Disability Law Centre has pointed out, a complaints function that dealt flexibly with issues not only of neglect and abuse of guardianships and powers of attorney, but also the much more common issues of misuse of decision-making powers could be of benefit to many individuals. However, it is the LCO’s view that an expanded administrative tribunal, as discussed above, would be a preferable option to expanding the responsibilities of the PGT. It would increase accessibility of appointments under the SDA, as well as the use of appointments. Further, an administrative complaints mechanism might find it challenging to address the common disputes within families that are the source of many concerns regarding misuse. The current powers of the CCB to consider whether an SDM under the HCCA is acting in compliance with the requirements of the HCCA as to decision-making and to provide directions when the appropriate application of the HCCA with respect to a required decision are unclear, could usefully be expanded to issues under the SDA, to address many of these issues. As an additional measure, the list of those entitled to make application to the CCB regarding compliance of the substitute decision-maker with the requirements of the legislation could be expanded to include the individual her or himself, thus providing the individual with some means to voice concerns without relying on a third party to identify the issues.
It is the view of the LCO that the most practical and effective option for improving access to the law is an expansion of the jurisdiction of the CCB, and that if this is not feasible in the shorter term, it is nevertheless the preferable option in the long term. Any steps taken to address the concerns that underlie the proposal to expand the CCB’s jurisdiction need, therefore, to be consistent with the principle of progressive realization, to advance towards the goal of improved access to the law, and to not be inconsistent with its achievement. Should government decide not to implement this recommendation, there may be merit in examining at least some expansion of the potential subject matter of complaints to the PGT under the SDA. An expansion of the scope of matters into which the PGT could conduct an investigation could not address concerns regarding the accessibility and flexibility of the appointments process. Further, there are limits on the types of matters which a purely administrative process could appropriately address. However, in the absence of other reforms, there may be some merit in giving the PGT the power to examine a broader range of issues related to compliance with the requirements of the SDA, such as complaints regarding an SDM’s duties to keep accounts, foster personal contact with supportive family or friends, or choose the least restrictive alternative.
Finally, apart from the subject matter of the investigation, it may be worthwhile to consider, whether there would be benefit in enabling a broader range of responses to an investigation on behalf of the PGT. An application for temporary guardianship by the PGT is a very weighty response, and will be appropriate in only a limited range of circumstances. As one option, should the jurisdiction of the CCB be expanded as the LCO recommends in Draft Recommendation 24, the PGT could be given the option of referring a written report to the Consent and Capacity Board, which would be empowered to make a range of orders on the basis of the report, such as ordering training or regular reporting for a guardian or power of attorney, or using its powers with respect to suspending, varying or terminating a guardianship or power of attorney.
DRAFT RECOMMENDATION 24: The Ontario Government amend the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992 to
a) give the Consent and Capacity Board jurisdiction over the following matters that are currently within the jurisdiction of the Superior Court of Justice:
i. the creation, variance and termination of all appointments of guardians; and
ii. review of accounts and provision of directions with respect to powers of attorney and guardianships.
b) provide the Consent and Capacity Board with the following remedial powers:
i. adjust compensation taken by a guardian, suspend or terminate a guardianship or power of attorney;
ii. direct the Public Guardian and Trustee to apply for guardianship; and
iii. temporarily appoint the Public Guardian and Trustee or other person as guardian.
DRAFT RECOMMENDATION 25: In giving effect to Recommendation 24, the Ontario Government amend the Health Care Consent Act, 1996 with respect to the composition and rules of procedure of the Consent and Capacity Board, to strengthen its expertise in these areas and enable it to tailor its processes to this area of jurisdiction.
DRAFT RECOMMENDATION 26: The Ontario Government amend the jurisdiction of the Consent and Capacity Board under sections 35, 37, 52, 54, 67 and 69 of the Health Care Consent Act, 1996 to i) provide directions with respect to the wishes of the person; and ii) determine compliance with the substitute decision-maker’s decision-making obligations
a) to include similar consideration of matters under the Substitute Decisions Act, 1992,
b) to permit the individual under substitute decision-making to make an application regarding compliance with obligations, and
c) in defined circumstances, to enable family or others with a trusting relationship with the individual under substitute decision-making to bring such applications.
DRAFT RECOMMENDATION 27: The Ontario Government explore the benefit of giving the Public Guardian and Trustee the discretion, upon completion of an investigation that does not warrant an application for temporary guardianship, to forward a written report to the Consent and Capacity Board, which would be empowered, with appropriate processes, to order training, mediation, or regular reporting for a substitute decision-maker.
2. Expanded Supports for Navigation and Advocacy
As was discussed above, adjudication of issues related to legal capacity, decision-making and guardianship may be benefited by the provision of administrative or legal supports intended to enhance the effectiveness and accessibility of adjudication. Ontario’s legal capacity, decision-making and guardianship system currently includes a number of supports that assist in enhancing the fairness and effectiveness of the system, including Section 3 Counsel and Legal Aid supports.
As was discussed earlier in this Chapter, access to legal representation is an important element of access to the law, whether for the person directly affected, those acting as SDMs, or others involved in the situation.
Individuals whose legal capacity is lacking or at issue of course have the most at stake, and will generally face the greatest practical barriers in accessing legal representation. These barriers are acknowledged in the parallel provisions of section 3 of the SDA and section 81 of the HCCA. Section 3, discussed at greater length below, gives the Court discretion to appoint legal counsel for an individual whose legal capacity is at issue under that Act and who does not have legal representation. Section 81 of the HCCA states that where an individual who is party to a proceeding before the CCB may be incapable and does not have counsel, the CCB may direct LAO to arrange for legal representation. It should be noted that this does not require LAO to issue a certificate for that legal representation if the individual is not otherwise eligible, and the individual will be responsible for the resultant legal fees. The CCB has issued a Policy Guideline in relation to this provision.[344]
Despite the available LAO supports and section 81 of the HCCA, some individuals who lack or may lack legal capacity may be unrepresented before the CCB – for example, because they have made an informed choice to decline representation. In such cases, the CCB’s Policy Guideline 2 provides direction to CCB members on assistance to these individuals. It indicates that the duty to inquire “gives the Board the authority to take a proactive role during the course of the hearing when dealing with the unrepresented subject of an application” and that while respecting the rights of other parties, “The panel should err on the side of providing more, rather than less, assistance to the unrepresented person”.[345]
The provisions of section 3 of the SDA and of section 81 of the HCCA are of course focussed on the needs of the person at the centre of the dispute, as is LAO’s certificate program. It is not uncommon for family members to be unrepresented in their appearances before the CCB, and very common for health practitioners to appear without representation, an issue which has been the subject of some comment over the years.[346]
Strengthening Section 3 Counsel
Ontario’s “section 3 counsel” provisions are an important element of access to the law in this area. Individuals may of course retain their own counsel if they wish. Section 3 of the SDA makes some provision for appointment of counsel where a person has not retained counsel and their legal capacity is at issue. Under that section, in such circumstances the court may arrange for legal representation to be provided, and the person will be deemed to have capacity to retain and instruct counsel for that purpose.
In some of these cases, the person may be eligible for legal aid, and a certificate may be issued. If not, the person is responsible for their own legal fees. Either the person or his or her guardian of property or power of attorney for property may seek review of the legal fees charged by counsel appointed under this section.
“Section 3 counsel” play a vital role in ensuring that the rights of persons alleged to be lacking legal capacity are recognized and advanced, something broadly acknowledged by key stakeholders during the consultations. This role would continue to be important should the functions of the Superior Court of Justice be transferred to the CCB, as the LCO has recommended.
Lawyers acting as Section 3 Counsel have pointed out to the LCO that in a not insignificant number of cases, the person currently acting as guardian or exercising a POA for the person at issue is opposed in interest to that person, and that these SDMs have considerable opportunity and incentive to attempt to thwart effective representation by Section 3 Counsel. If they have physical custody of the individual, they may attempt to block or limit access by the counsel, or may attempt to monitor or eavesdrop on conversations between the lawyer and client. They may use their control over the finances of the individual to unreasonably block or delay payment of legal fees. These difficulties may undermine the ability of Section 3 Counsel to perform their roles effectively, and may dissuade lawyers from taking on section 3 clients. It has been suggested that reforms are required to reduce the opportunities for SDMs to improperly thwart the intent of the section 3 provisions. As the Mental Health Legal Committee comments,
There is a need to spell out in the SDA that access to counsel, including lawyers appointed under section 3 of the SDA, may not be impeded. Anecdotal examples of barriers include third parties hiding or physically preventing counsel from speaking or meeting with the client; third parties insisting on being present during lawyer-client meetings; third parties surreptitiously recording or monitoring lawyer-client meetings; third parties hiring replacement lawyers; third parties who control assets refusing to pay the lawyer; third parties bringing motions to remove lawyers from the record; claims for personal costs against the lawyer under rule 57.07 of the Rules of Civil Procedure; and third parties bringing collateral proceedings (i.e. negligence actions) against section 3 counsel. Consideration should also be given to adding section 3 counsel to the enumerated persons who it is an offence to hinder or obstruct in section 89 of the SDA.
We agree that Section 3 Counsel need to be protected from conduct that may prevent them fulfilling their functions appropriately or make it difficult for them to do so.
Concerns have been raised regarding the training available to lawyers acting as Section 3 Counsel. It has been proposed that panel qualification standards for lawyers who wish to be appointed under this program be developed, including appropriate requirements for experience and training.
DRAFT RECOMMENDATION 28: The Government of Ontario amend the Substitute Decisions Act, 1992 to specify that it is an offence for a person to impede or interfere with the ability of counsel appointed under section 3 to carry out their statutory function, and to codify a right for Section 3 Counsel to meet privately with their clients.
DRAFT RECOMMENDATION 29: The Ministry of the Attorney General designate responsibility for the development of clear qualification standards, including minimum training, for lawyers appointed as Section 3 Counsel under the Substitute Decisions Act, 1992.
Improving Legal Aid Supports
The Legal Aid Services Act, 1998 requires Legal Aid Ontario (LAO) to provide services in the area of mental health law.[347] In particular, LAO provides legal aid certificates to clients in the civil mental health system who are exercising rights to review by the CCB under the MHA and HCCA. The qualifications for a legal aid certificate for a CCB hearing are relaxed compared to those for other issues. In the fiscal year 2010-11, LAO expended $2.8 million on certificates for CCB applications, which included the issuance of 2,836 certificates and 2,566 hearings conducted. To place this number in context, in that year, there were a total of 5,216 applications filed with the CCB.[348]
As well, both the community legal clinic system and specialty legal clinics such as ARCH Disability Law Centre and the Advocacy Centre for the Elderly (ACE) play very significant roles, not only in assisting individuals to assert their rights, but in identifying and addressing systemic issues in this area of the law, including through public education and law reform activities.
The Legal Aid funding currently provided in relation to CCB hearings is one of the strengths of the system, and has a significant impact on its accessibility and effectiveness. Should government accept the LCO’s recommendation for an expanded mandate for the CCB, it would be important for Legal Aid Ontario to consider how to extend its current supports to this broader range of matters. Should SDA matters remain within the jurisdiction of the Superior Court of Justice, some of the access issues could be ameliorated by a greater focus by Legal Aid Ontario on this area.
The Mental Health Legal Committee, among others, has advocated that greater Legal Aid funding be provided to this area of the law.
In SDA proceedings, representation of the alleged incapable persons is often crucial. It is particularly difficult to fund representation, however, where a person’s assets have been converted or are illiquid. Legal Aid has been practically absent from the funding of counsel retained directly by the alleged incapable person or appointed pursuant to section 3 of the SDA. Legal Aid has no payment tariff applicable to such representation and lacks an institutional appreciation of what is involved. The funding of representation by Legal Aid where necessary in such matters must be restored. Legal Aid can, among other things, facilitate representation in cases of illiquidity by taking liens on a clients’ real property.[349]
In its 2014 budget, the Ontario government, as part of a broader strategy to improve access to justice and legal supports, particularly for vulnerable individuals and groups,[350] committed to expanding access to legal aid by raising the income eligibility threshold to qualify for legal aid assistance.[351] Based on the above objectives and funding, LAO has undertaken a comprehensive, multi-year plan to significantly expand access to justice for low-income Ontarians. This initiative will lead to the most significant and rapid increase in legal aid certificates in more than 25 years.[352] As one part of this initiative, LAO is expanding certificate services to provide legal assistance to eligible clients in a mental health proceeding where there are conflicts regarding statutory guardianship and substitute decision-making for a person who has been found incapable.[353] Several new certificates for representation before the Consent and Capacity Board and Superior Court of Justice will be available to persons caught in the middle of a guardianship dispute, who wish to have their guardianship reviewed, and to substitute decision makers whose health care decisions are being challenged. This initiative is intended to:
increase the availability of advocacy before mental health tribunals and court proceedings dealing with serious liberty and personal security issues related to guardianship of person and property, and treatment decisions by substitute decision makers.[354]
It should be noted that Legal Aid Ontario is currently in the process of developing a Mental Health Strategy intended to produce a “multi-faceted, multi-year strategy that will improve access, increase capacity, and build on LAO’s current client services”.[355] A consultation paper was released in November 2013, with consultations closing in February 2014.[356] In this consultation paper, LAO defined its overall objectives for its Mental Health Strategy as
· expanding access to mental health legal aid services, including financial eligibility;
· developing structures, policies, and processes to better reflect a maturing understanding of mental health clients’ needs within LAO and the justice system;
· providing better and more systemic supports to the lawyers, community clinics, community agencies and other service providers who provide mental health legal aid services; and,
· promoting ongoing discussion and evaluation of mental health legal aid services by LAO, clients, the bar, community clinics and other stakeholders. [357]
The LCO has below provided draft recommendations regarding LAO supports within the existing system. Should the draft recommendations related to support authorizations or the expansion of the mandate of the CCB be implemented, the LCO encourages LAO to consider how these reforms can be supported within its mandate and resources.
Concerns have been raised about the consistency of the expertise among the legal bar appearing before the CCB. There is a particular challenge outside the Greater Toronto Area, where there are fewer cases, and therefore fewer opportunities for lawyers to develop the specialized skills and knowledge that are necessary.
DRAFT RECOMMENDATION 30: Legal Aid Ontario consider as part of its current new initiatives in this area:
a) expanding funding of matters under the Substitute Decisions Act, 1992 and in particular of additional supports to:
i. enhance access to Section 3 Counsel;
ii. enhance access to legal representation for persons who wish to challenge the appointment or identity of a guardian and are not the subject of a section 3 appointment;
iii. enable individuals to challenge the compliance of substitute decision-makers appointed under the Substitute Decisions Act, 1992 with their responsibilities under that statute.
b) providing additional supports to enhance the knowledge and skills of lawyers who provide Legal Aid funded services in this area of the law.
3. Expanded Use of Mediation and Alternative Dispute Resolution
The Discussion Paper canvassed the possibility of expanding the use of mediation in this area, as a means of reducing costs, making the process less intimidating, and preserving important relationships. It also noted the risks associated with the use of mediation in issues related to legal capacity, decision-making and guardianship. Where issues relate to fundamental rights, mediation may be inappropriate: for example, the British Columbia Law Institute’s consultations in its elder law and guardianship mediation study indicated a general consensus that issues of legal capacity cannot be mediated, and this was reflected in British Columbia’s Elder and Guardianship Mediation Report.[358] As well, mediation processes may raise concerns because the person who lacks or is alleged to lack legal capacity is inherently in a vulnerable position: as a result of the clear imbalance of power, there is a risk that mediation may tilt the process towards excessive intervention.
The CCB for a while there, and I don’t know what they’re doing in other areas of the province but they were trying to do mediation. And they would get everybody together and they’d mediate. And, you know, the person would withdraw their application, say, for involuntary status, because the doctor would now agree that they could have some privileges. But there was nothing to force the doctor to not change that agreement the next day because he said, oh, well, you’ve changed, you’re not the same as you were yesterday. So, I think conflict mediation is not really very helpful in those kind of situations and, so, I mean, because the person, they need an answer, yes or no. It can’t be something that’s wishy-washy or if there’s going to be mediation they have to find a way to enforce the mediation. And mediation only really works if you’ve got two parties who are at an equal level and the patient and the doctor are not at an equal level from a power perspective by any stretch of the imagination.
Focus Group, Rights Advisers and Advocates, September 25, 2014
As has been highlighted throughout this Interim Report, disputes within legal capacity, decision-making and guardianship law frequently occur within the context of complex family dynamics and involve tangled relationships of interdependence. Reaching a resolution may require attention not only to the legal matters at stake, but also practical attention to the underlying issues.
Much of the usefulness of mediation in this context would therefore depend on high levels of specialized knowledge and skill among the mediators.
Despite these acknowledged limitations, there was considerable, albeit cautious interest throughout the LCO’s consultations in exploring greater use of mediation or other forms of alternative dispute resolution in this area of the law. For example, the Mental Health Legal Committee stated in its submission that “[t]he court-based processes for the resolution of disputes and rights enforcement under the SDA would benefit, in our view, from an expansion of the mandatory mediation requirement in rule 75.1.02 of the Rules of Civil Procedure”,[359] which set out requirements for mandatory mediation in proceedings related to estates, trusts and substitute decisions. Currently, those Rules apply only in the cities of Toronto and Ottawa, and the county of Essex. Mandatory mediation under Rule 75.1.02 is part of a larger set of processes for mandatory mediation of civil actions. Under mandatory mediation, disputes are mediated by private mediators chosen by the parties. The Ministry of the Attorney General provides litigants with a roster of private mediators, but litigants may choose a non-roster mediator. Given the nature of the issues raised by legal capacity and decision-making laws, which are frequently ones associated with fundamental rights, the particular needs and circumstances of persons directly affected by these laws, as well as the dynamics of their relationships, a simple expansion of the current mandatory mediation program is unlikely to be able to meet the specific needs in this area, and may create risks of negative results for those directly affected. This does not mean that mediation may not be of assistance in increasing access to meaningful dispute resolution in this area; however, a more tailored approach may be in order.
A post-legislative review of the operations of the Mental Capacity Act, 2005 of England and Wales concluded that “mediation would be beneficial in many more cases prior to initiating proceedings in the Court of Protection”, and recommended that consideration be given to making mediation a pre-requisite to launching proceedings, particularly for proceedings for property and financial affairs where the cost falls to the person lacking legal capacity.[360]
The ADR Institute of Ontario commented in the context of supported and co-decision-making that,
ADRIO supports the continued exploration into both supported and co-decision making with one important caveat: the likelihood of conflict arising between the supporting players must be acknowledged and a framework for managing the conflict that allows the voice of the individual to be heard must be operationalized. Without a dispute resolution process built into the system the individual’s voice may not be heard. ADRIO therefore encourages the CCB to adopt early mediation as an important strategy to address the conflict that inevitably arises among the supporting individuals, whether they be parents, children, neighbours or friends.[361]
The ADR Institute pointed to the work of the Institute in assisting the Community Care Access Centres with the development of Independent Complaint Facilitators to resolve disputes related to health and personal care provided through the CCACs. It suggested that the CCB develop a “province wide roster of professional mediators with specialized knowledge of the area to be available as needed for early mediation and facilitation of disputes related to capacity and other decisions”.
In the context of the CCB, consultees pointed to the constraints on alternative dispute resolution imposed by the tight legislative timelines, as well as the inappropriateness of mediation to certain aspects of the CCB’s mandate, particularly determinations of capacity. However, they also indicated that it would be useful to further explore the potential of mediation in relation to some types of applications, such as “Form G”s, which address compliance with the legislation, such as whether an SDM has respected the principles for giving or withholding consent to treatment.
I really highly value the prehearing in terms of the Form G process, to try to mediate conflict. What I’ve found with and experienced with Form G in mediation – well, recently, well about two months ago now, is that, we didn’t succeed with the mediation, but one of the things it did too though was it helped to make sure that the hearing was shorter, because even though we couldn’t come to a consensus, the – all roles and represented parties knew what was expected of them, knew what witnesses were going to be present, knew that they would probably be assessed in capacity, and knew that we had done the… what is the responsibilities of the substitute decision-maker. So, instead of having a hearing that went on for a few days, it was confined to one day. A long day, but one day. But I like the prehearing as a concept, because perhaps – because I think it helps with the therapeutic relationship too, if you can potentially mediate the conflict before it gets to the hearing, which is obviously far more confrontational.
Focus Group, Joint Centre for Bio-ethics, October 1, 2014
The above comment highlights the value of situating mediation in the context of broader pre-hearing processes, in which there are mechanisms for information exchange and narrowing of issues.
Others suggested an exploration of the possibility of having some type of dispute resolution service available prior to the filing of an application, possibly through community organizations.
I’m wondering if we could just, like, remove the kind of lawyer-ness out of it and say, before there is a dispute, what could we do? And this is where when I mentioned the Administrative Justice Support Network …., what is working well in the community and how do people that are working well and having, being able to provide their loved ones a life worth living, and could they not be a bit of a mentor or a bit of a go-to before we arrive at something that needs to be mediated or arbitrated or what have you?
Focus Group, Families of Individuals with Developmental Disabilities, October 16, 2014
Like mediation or something? I’m wondering whether or not, because again, cost and all of those things can be very prohibitive, but organisations and smaller community organisations sometimes, I think about St. Stephen’s where they do neighbourhood dispute resolution or whatever. Something that is much less formal but just bringing – because, again, when you come to family dynamics obviously people have an interest one way or the other in what happens because, or else they wouldn’t be there, right. So, I just think something less formal. Maybe something more community based, maybe something that isn’t cost prohibitive, maybe based on income, maybe based on whatever, the person’s ability to pay, use it, or again, make it a community service. And different community organisations that exist, it’s offered.
Focus Group, Community Health and Social Service Providers, September 26, 2014
It should be noted that the Public Guardian and Trustee has the power, under the SDA, to mediate certain disputes arising in the context of substitute decision-making under that Act.[362] However, the PGT’s other roles under the SDA, including its powers to investigate and to seek temporary guardianship, can create at the very least a perception of a conflict of interest that interferes with its ability to fulfil this role.
On balance, the LCO believes that greater room should be made within Ontario’s legal capacity, decision-making and guardianship system for mediation and other forms of alternative dispute resolution. A comprehensive report by the British Columbia Law Institute on Elder and Guardianship Mediation, referenced above, concluded, “Recent legislation and private practice experience indicates that elder and guardianship mediation are important and positive new areas of legal expansion in Canada”,[363] and made a number of helpful recommendations around best practices for elder and guardianship mediation. The LCO believes that the following recommendations in the report are relevant to potential reforms in Ontario.[364]
· Guardianship mediators must have minimum relevant core competencies, including knowledge of the relevant law and of alternatives to guardianship; of concepts of capacity, and of the needs of persons who may be affected by issues related to capacity and how these needs may be accommodated; and understanding of the power imbalances inherent in guardianship issues and of strategies to address these.
· There must be clear standards and values for guardianship mediation, as well as a code of ethics.
· Mediators in these cases have a duty to ensure that all parties have the capacity to participate in mediation. If a party is incapable of participating in mediation, the mediator has a duty to explore whether there is someone appropriate who can represent the wishes of the incapable person in mediation. Where the mediator believes that a party is unable to participate meaningfully in the mediation process, and there is neither a representative nor another appropriate person to represent the incapable person’ wishes, the mediator should suspend or terminate the mediation. Neither issues of legal capacity nor serious cases of abuse should be mediated.
· Court-connected guardianship programs should be initially developed as pilot projects.
The LCO agrees that mediation may be an appropriate way to improve the processes for the parties at the CCB, or in court processes, as long as appropriate mediation protocols are observed similar to those recommended by the BCLI’s report and listed above.
Among the practical issues to be considered in an expansion of mediation at the CCB, particularly if the CCB’s area of jurisdiction is expanded as set out in draft recommendation 24, is the application of Rule 7 of the Rules of Civil Procedure, which specifies that no settlement of a claim made by or against a person under disability is binding on the person without the approval of a judge. This Rule protects the interests of parties under disability from exploitation by other parties.[365] The application of this Rule in administrative law is not clear. In Lang v Ontario, a case before the Human Rights Tribunal of Ontario involving a minor with a disability, the Vice Chair determined that it could not adopt procedures that when applied would derogate from the inherent jurisdiction of the Superior Court, that the HRTO did not have jurisdiction under either its enabling statute or the Statutory Powers Procedures Act to issue an order approving a settlement, and that the HRTO would not, therefore, make an order approving the proposed settlement.[366] Further, in their paper, Addressing the Capacity of Parties before Ontario’s Administrative Tribunals, authors Tess Sheldon and Ivana Petricone of ARCH Disability Law Centre comment that “the issue of whether a settlement involving persons under the guardianship of the Public Guardian and Trustee would be binding without approval of the Court remains unsettled”.[367]
DRAFT RECOMMENDATION 31: If the Ontario Government does not take up the LCO’s Recommendation 24 regarding an expanded and reformed administrative tribunal empowered to adjudicate issues under the Substitute Decisions Act, 1992, that it explore the expansion of access to mediation for these types of cases, subject to the following protocols:
a) identification of matters that are appropriate for mediation, excluding issues of abuse and of legal capacity;
b) development of mediators with core competencies necessary to effective mediation in this area of the law, including knowledge and skills in capacity and guardianship law and any other specific law at issue; the principles and values underlying capacity and guardianship law and of human rights; the needs and circumstances of individuals who are affected by this area of the law; and alternatives to the use of guardianship or substitute decision-making; and
c) creation of a code of ethics and of standards for mediation in this area, including guidance on capacity and consent to engage in mediation.
DRAFT RECOMMENDATION 32: In amending the Health Care Consent Act, 1996 to prepare the Consent and Capacity Board to perform its new role, the Ontario Government consider whether the current time limits for adjudication should be maintained for all applications, or whether for some matters previously dealt with by the Superior Court of Justice, time limits should be more flexible to permit greater scope for alternative dispute resolution, including mediation.
DRAFT RECOMMENDATION 33: The Consent and Capacity Board develop a pilot project to explore the possibilities of a specialized mediation program for selected types of applications, which would be subject to the following protocol:
a) identification of matters that are appropriate for mediation, excluding issues of abuse and of legal capacity;
b) development of mediators with core competencies necessary to effective mediation in this area of the law, including knowledge and skills in capacity and guardianship law; the principles and values underlying capacity and guardianship law; the needs and circumstances of individuals who are affected by this area of the law; and alternatives to the use of guardianship or substitute decision-making; and
c) creation of a code of ethics and of standards for mediation in this area, including guidance on capacity and consent to engage in mediation.
F. Summary
From the outset of this project, access to the law for persons falling within the scope of the SDA was identified as one of the most troubling gaps in Ontario’s laws related to legal capacity, decision-making and guardianship and as an urgent priority for reform. The current court-based system is inaccessible to all but a few, and as a result, the positive rights under the law are not enforced and the promise of the legislation is unfulfilled.
This lack of access, and the resultant inflexibility, affect every aspect of this area of the law, including both overuse of guardianship and the risky informal “workarounds” that service providers or families may develop to avoid the necessity to access the courts, as well as the endemic concerns regarding misuse of powers of attorney.
Issues related to access to the law are not unique to legal capacity, decision-making and guardianship law: this is a broader issue. In this case, the rights at stake are fundamental, and the population affected is, by its very nature, particularly vulnerable. This lends additional urgency to the problem.
The LCO has considered a number of approaches to addressing this issue. The recommendation, to move oversight of the SDA to a reformed and expanded CCB is a bold step, and would involve start-up costs in the short-term, but the LCO believes that this is, over the longer term, the most forward-looking, cost-effective, realistic and practical option for reducing the problem.
Making the adjudication of matters under the SDA more flexible and accessible enables and strengthens other reforms that can reduce unnecessary intervention, as is further discussed in the following Chapter.
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