XI. Education and Information: Understanding Rights and Responsibilities

////XI. Education and Information: Understanding Rights and Responsibilities
XI. Education and Information: Understanding Rights and Responsibilities 2017-03-03T21:54:17+00:00

A.    Introduction and Background

The law related to legal capacity and decision-making is unavoidably extensive, elaborate and multi-layered and, for some people, perplexing, dealing as it does with difficult ethical and practical issues, and attempting to balance needs of diverse groups across a range of circumstances. The law attempts to incorporate nuance and to be responsive to fluctuating needs. While this nuance and responsiveness is in many ways a benefit, it does make the law more challenging to implement successfully. During consultations, all stakeholders pointed to shortcomings in understandings of the law and in the skills necessary to apply it as key issues to be addressed in any review. The need for improvements in education and information has therefore been a theme throughout this project, and arises in every chapter of this Interim Report. This chapter does not attempt to replicate this material, but to provide a focussed examination of some key elements.

It should be noted that, despite its importance, the provision of information and education is not a panacea for all of the issues affecting this area of the law. Information on its own does not create the ability to act on it. The draft recommendations for reform in this area must be understood in conjunction with other draft recommendations throughout this Interim Report, particularly including those related to monitoring and oversight, and dispute resolution and rights enforcement. 


B.    Current Ontario Law and Practice

1.     Understanding Needs for Education and Information

In considering reforms to promote better understanding (and therefore better implementation) of the law, the needs of four groups must be taken into account: 

·       persons directly affected (i.e., those whose legal capacity is either lacking or in doubt);

·       persons providing assistance as substitutes or, if the LCO’s recommendations are implemented, supporters;

·       professionals who are expected to provide expert implementation of the law (including health practitioners expected to assess capacity and obtain consent, and lawyers expected to create powers of attorney or to assist with disputes or rights enforcement); and

·       third parties who interact with the law in the context of providing services or contracting with respect to a transaction. 

The needs of these groups will differ, as well as the most effective methods of reaching them.  

Persons directly affected by the law will be the most profoundly affected by the quality and extent of the information they receive about the law, as this will substantially shape their ability to make meaningful choices in this context and to protect and enforce their rights. Except for those persons granting powers of attorney who have sophistication in handling affairs or easy access to professional assistance, this is also the group that will likely have the most challenges in receiving adequate information, or even in realizing that they could benefit from information. The conditions affecting their legal capacity will affect their ability to understand and appreciate information about the law itself. Many persons directly affected by the law will require accommodations or supports in receiving or accessing information. As well, they will very often encounter the law at a time of crisis, when it is difficult to seek out and process information. 

Persons who act as substitutes or supporters will, for the most part, be family members or friends with no particular expertise in understanding or applying the law. Many will also be acting as caregivers, and in most cases, they will not be paid for their activities. In their roles, they will be often required to navigate extensive processes or intimidating institutions, understand novel medical or financial concepts, develop skills as advocates, and manage difficult family or professional relationships. In the LCO’s consultations, these family members often emphasized the challenges of their roles, and the lack of supports available to them.

Third parties most often do not have issues surrounding legal capacity and decision-making as a core element of their enterprise. It will in most cases be front-line workers with no particular skill set in this area who will directly encounter issues related to legal capacity and decision-making, and who must identify potential issues and apply correct procedures. It is also at the front-lines where pressures related to limited resources, competing needs and the tension between standardization and responsiveness to individual needs will be most acute. Large organizations, such as financial institutions or hospitals, will generally develop internal expertise, perhaps including policies, protocols or guidelines. Smaller organizations may not have the ability to develop these kinds of internal resources. It is important to emphasize that third parties are, by and large, well-intentioned in their efforts to serve their clients, and that they may be operating in contexts of considerable constraint and difficulty. There may be no simple solutions to the ethical, practical or resource challenges that these institutions or professionals may face in providing services to what may at times be their most vulnerable clients, although opportunities do exist to deepen provider competencies in this area through existing institutions and programs. 

Those professionals who must apply the law as part of their professional duties must deal with the most complicated and challenging issues under the law, and have the most significant responsibility for ensuring the effective and appropriate implementation of the law. This group includes the professionals who carry out the different forms of assessment of capacity; lawyers who assist with the preparation of powers of attorney or with resolving disputes arising under the law; and hospital or long-term care home staff who develop internal policies and procedures for addressing these issues.


2.     Some Legislative History: The Advocacy Act Requirements

When the current legislative scheme was initially proposed, it contained three statutes: the Substitute Decisions Act, 1992 (SDA), the Consent to Treatment Act (the predecessor to the Health Care Consent Act, 1996) and the Advocacy Act. The Advocacy Act is described at length in the Discussion Paper, Part Four, Ch III.B. For the purposes of this discussion, it suffices to note that the Advocacy Act and the accompanying provisions in the SDA and Consent to Treatment Act made extensive provision for rights advice. At key transition points in the lives of persons affected by the law where important rights were at stake, advocates were made responsible for providing information and otherwise interacting with the individual in various ways, including the following:

·       notifying the individual of the decision or determination that had been made about her or him;

·       explaining the significance of the decision or determination in a way that took into account the special needs of that person;

·       explaining the rights that the individual had in that circumstance, such as a right to appeal the decision or determination; and

·       in some cases, ascertaining the wishes of the individual (e.g., whether he or she wished to challenge the decision or determination) and to convey those wishes to the appropriate body (e.g., the Public Guardian and Trustee).

Action on these decisions or determinations could not be taken until the advocate had carried out these duties, or had made efforts to do so and had been prevented, for example by contravention of their rights of entry. This role was engaged in the following situations, among others:

·       the appointment of a statutory guardian of property following an examination under the Mental Health Act;

·       the appointment of the Public Guardian and Trustee (PGT) as a temporary guardian following an investigation into serious adverse effects;

·       applications for validation or registration of powers of attorney for personal care;

·       applications for court-appointed guardianships;

·       court orders for assessment of capacity, including orders for apprehension of the individual to enforce assessments;

·       findings of incapacity with respect to treatment made within a psychiatric facility;

·       findings of incapacity with respect to “controlled acts” in a non-psychiatric facility;

·       applications to the CCB for directions regarding the prior expressed wishes of an individual; and

·       applications to the CCB for permission to depart from the prior expressed wishes of an individual.

These requirements were removed in 1996, when the Advocacy Act was repealed and the Consent to Treatment Act replaced by the current Health Care Consent Act, 1996 (HCCA). While the current legislation contains some provisions related to the provision of information, they are minimal compared to what was originally contemplated.

3.     Current Statutory Requirements

Currently, the SDA, Part III of the Mental Health Act (MHA) and the HCCA include the following requirements for information to be provided to affected individuals at a limited number of key transition points.

Assessing Capacity: Because an assessment of capacity can in a number of circumstances have very significant automatic effects on the individual’s status and choices, information about the legal effect of the assessment, the rights of the individual and the options available is crucial.  The provision of rights advice and rights information in these circumstances was discussed at length in Chapter V, and will only be summarized here. 

MHA examinations of capacity to manage property: those undergoing these examinations have a right to notice of the issuance of a certificate of incapacity, and to timely provision of rights advice by a specialized Rights Adviser. The Rights Adviser will provide information to the patient about the significance of the certificate and the right of appeal. 

HCCA assessments of capacity to consent to treatment: a finding of lack of capacity must be communicated to the individual. Outside of psychiatric facilities, the form and content of the notice depends on the guidelines of the health regulatory college. 

HCCA evaluations of capacity to consent to admission to long-term care or to personal assistance services: the HCCA does not require provision of information to the affected individual; however, the form for evaluators includes an information sheet that must be provided to the individual and a box to tick that the individual has been informed about the finding and the right to appeal. 

SDA Assessments by designated Capacity Assessors: the individual must be provided with information about the purpose, significance and potential effect of the assessment, as well as written notice of the findings of the assessment. Where a statutory guardianship results, the PGT must inform the individual that it has become the guardian and that there is a right to apply for review of the finding. 

The significant shortfalls in the rights information regime under the HCCA were discussed at length in Chapter V, and were the subject of several draft recommendations for reform. It is also worth noting that even where information is provided to individuals, they may face many barriers to acting on that information without further assistance, whether because of disabilities or impairments, a lack of supports or the constraints of their environments.

Roles and responsibilities of Substitute Decision-makers (SDMs): the SDA requires SDMs appointed either through a power of attorney (POA) or a guardianship, to explain their powers and duties to the affected individual. Section 70 of the SDA requires a proposed guardian in a court application for guardianship to include in the application a signed statement either that the person alleged to be incapable has been informed of the nature of the application and the right to oppose it, or explaining why this was not possible. Sections 32(2) and 66(2) require SDMs under the SDA to explain to the individual the powers and duties of the guardian (although not, notably, any means of rights enforcement for the individual).

There is no formal mechanism for ensuring that the duties under sections 32(2) and 66(2) are carried out.  Further, while the PGT can be expected to thoroughly understand the “powers and duties” of an SDM, in many cases the family and friends who are acting as SDMs are not conversant with their statutory responsibilities: they will neither be aware of their duties to explain them, or in a position to accurately describe them. And there will be some minority of SDMs who are abusive, neglectful or exploitive. In these situations, which are precisely the ones where the individual will most require understanding of legal rights and recourse, the SDM is very unlikely to detail them. 

The currently statutory regime does not include formal requirements or supports to inform or educate SDMs, or third parties. For example, persons appointed under a POA need not even be informed that they have been appointed, and there are no mechanisms for ensuring that attorneys understand their role. While the process for becoming a guardian is more rigorous than that for a personal appointment, there are no requirements or formal supports to assist them with gaining the information and developing the skills that are necessary.


4.     Non-statutory Provision of Education and Information

There has been considerable effort by a variety of institutions to provide affected individuals, family members and SDMs, professionals and third parties with the information required for the effective functioning of this area of the law. 

Educational institutions: Many of the service providers or professionals charged with implementing or supporting the implementation of the law must meet certain educational requirements prior to entering their professions. This is true for social workers, health professionals and lawyers, for example. Educational institutions may provide information related to this area of the law, either as mandatory or voluntary course material. 

Professional regulatory bodies:  Professional regulatory bodies play an important role in providing information and education to their members across a wide range of subject areas. Professional regulatory bodies, such as the health regulatory colleges or the Law Society of Upper Canada, may require practitioners to demonstrate specific knowledge or skills to join the profession, and may provide ongoing education and training opportunities. They may develop policies and guidelines of practice that are binding on their members and may be the subject of complaints where there is non-compliance. 

Employing institutions: For professionals working in large institutions, such as hospitals, long-term care homes, Community Care Access Centres, or large social service agencies, their implementation of the law will be significantly shaped by their employer. Institutions may develop internal policies dictating how the law is to be interpreted and applied, create internal training programs or resources, or provide access to information and advice through internal legal or ethics departments.  

Government mandated training and education: The current statutory regime requires those carrying out the various forms of formal capacity assessments to be members of specified professions, and thereby to have completed the requisite education and met accreditation standards. Beyond that, specific training is not mandated, with the notable exception of Capacity Assessors who are designated under the SDA, who must have completed the requisite training and requirements to maintain qualification, as is described in Chapter V of this Interim Report. 

Professional associations: Professional associations may also provide materials or continuing education opportunities. For example, the Canadian Medical Association’s Code of Ethics includes provisions related to respecting the right to accept or reject treatment, ascertaining wishes and provision of information to patients. The Ontario Bar Association’s Trusts and Estates Section regularly provides Continuing Professional Development related to powers of attorney, as does the Health Law Section with respect to capacity and consent. 

Government bodies: The Consent and Capacity Board (CCB), the Ontario Seniors Secretariat, and the Public Guardian and Trustee (PGT) provide informational materials and conduct presentations aimed both at professionals and institutions, and at families and those directly affected. Both the PGT and the Capacity Assessment Office (CAO) receive thousands of phone calls each year, through which they provide information and referral to appropriate resources. 

Advocacy and consumer organizations: Organizations that work with and advocate for persons directly affected may develop education and training for professionals, as part of initiatives aimed at closing the implementation gap and promoting the rights of the individuals that they serve, as well as providing information materials and advice to those directly affected. For example, ARCH Disability Law Centre, the Advocacy Centre for the Elderly and Elder Abuse Ontario regularly engage in public education activities in this area.  

Academics and experts: academics and experts may use their skills to develop tools for “knowledge translation”, aiming to turn complex issues of law and professional practice into practical tools or resources. For example, the National Initiative for the Care of the Elderly (NICE) has as its goals to help close the gap between evidence-based research and actual practice; improve the training of existing practitioners, geriatric educational curricula, and interest new students in specializing in geriatric care; and effect positive policy changes for the care of older adults.  


C.    Areas of Concern

Concerns regarding education, information and understanding of the law were prominent in all focus groups, as well as in most of the written submissions that the LCO received. In fact, widespread confusion regarding the law among family members, individuals directly affected and many service providers was evident in the focus group discussions. 

It is useful to note that similar concerns were raised in the LCO’s project on Capacity and Legal Representation for the Federal RDSP The LCO there identified that the provision of information in accessible formats, languages and locations would be crucial to the success of any streamlined process, and recommended that Government of Ontario distribute public legal education to potential users of the recommended streamlined process, in a variety of accessible languages and formats.[520]

Individuals Directly Affected

Many participants in the consultations emphasized both the importance of ensuring that individuals directly affected by the law are aware of their rights, and the shortfalls in current mechanisms for conveying information about rights. 

I think it’s important [if you] give people the ability to take away people’s rights then you have to have the mechanism in place for people to inform them when it happens.  And right now it is only in our [Schedule 1] facilities and yet their rights are being taken away in group homes and long term care and in the community where they’re not being advised.  And if it [rights advice] happens in the [psychiatric] facility and they’re still, you know, somewhat abused, what’s happening in the community?  And why aren’t there some people out in the community having their rights respected?

Focus Group, Rights Advisers and Advocates, September 25, 2014

ARCH Disability Law Centre, in its submission to the LCO, emphasized the importance of providing those directly affected by this area of the law with rights advice, so that they understand the kinds of assistance with which they will be provided, the legal obligations of those providing assistance, their rights, the available mechanisms for dispute resolution, and the safeguards in place to address abuse and misuse of statutory powers.[521] 

As was discussed in Chapter V, there was considerable and widespread concern that rights information, as required under the HCCA, is provided inconsistently, cursorily, or not at all. ACE commented that “persons found incapable under the HCCA (with the exception of Mental Health Act patients) are rarely advised of this finding and are even more seldom advised of their rights”.[522]

Ontario legislation does provide clear and strong rights for persons directly affected by legal capacity, decision-making and guardianship law. However, without knowledge of their rights under the law – or even of the fact that they have rights under the law – individuals directly affected are very unlikely to be able to effectively access those rights.

Family Members 

Many consultees, in both submissions and focus group discussions, emphasized the lack of understanding and skill among many family members who must deal with this area of the law, and advocated for better education and supports for this group. 

Many stakeholders identified a pressing need to provide SDMs with at least basic information on their statutory duties, so that they are able to comply. 

[T]he only time an SDM gets any sort of knowledge on what their actual duties as an SDM are is in the cases of community treatment orders where a person’s been made incapable.  SDMs actually need to be given an opportunity to know what their responsibilities and rights are under the law because most of them don’t really understand what’s being placed upon them when they are taking on that mantle.  So, it might be helpful if they, the SDMs, whether it’s for property or treatment, but SDMs be required to actually speak to a rights adviser or other professional just so that they, that knowledge gap for them is filled in.

Focus Group, Rights Advisers and Advocates, September 25, 2014

In its submission, the Mental Health Legal Committee (MHLC) commented,

Beyond the prevention of harm to the incapable person, requirements that information and advice be provided to attorneys and guardians before their actions are under scrutiny would be preventative and could result in a net costs savings in government and judicial resources otherwise directed at enforcement.

Similar concerns apply to persons appointed to make treatment or admission to long-term care decisions under the HCCA. 

Indeed, the LCO facilitator of the focus groups of family members acting as SDMs observed that they very often lacked even the most rudimentary knowledge of the laws under which they were operating, despite their obvious commitment to the wellbeing of their loved ones. Participants were often unaware of the distinction between a power of attorney and a health care proxy or a guardianship, or even of the difference between a power of attorney and a will. Most were unaware of the obligation to keep accounts, let alone the nuances surrounding the concept of legal capacity, the requirements regarding decision-making practices or the processes for enforcing rights. In the consultation surveys completed by those assisting with decision-making, 42 of 97 respondents indicated that they had received some explanation of their roles when commencing their responsibilities, while 55 had not received any explanation. Interestingly, despite this indicated lack of access to information about their responsibilities, of the 98 respondents answering the question about their understanding of their legal responsibilities, just over 60 per cent either agreed or strongly agreed that they had a good understanding of their legal role and responsibilities as someone providing assistance with decision-making: perhaps some of those responding had taken the initiative to seek out information on their role and responsibilities. Of course, this was a self-assessment of level of understanding. 

Beyond basic understanding of the law, many spoke of a need, not just for compliance information, but for tools and supports for SDMs that would help them to carry out their roles. As one Rights Advisor pointed out, “The reality is that SDMs are just plain folks trying to get through the day with a responsibility they’re not trained for, they’re not prepared for, and without some supports or some advice then it’s a very difficult, emotional if not intellectual duty”. In its submission, the Ontario Brain Injury Association commented,

When the role of a decision-maker is given to the caregiver, the learning curve is immense and daunting. In many instances, the specific roles and responsibilities of a decision-maker are not fully understood, or applied and those caregivers are left to twist in the wind, in most cases alone with no outside guidance or support. Not only do they need to understand their loved one post-injury and how to relate and maintain close relationships, but also to learn how to navigate the health care system.

Due to the tremendous pressures and stress there is a high risk of caregiver burnout which could potentially be managed if the right amounts and types of supports were provided. Respite services, training and education on the role as a decision-maker and how to navigate the system would be extremely helpful. Having training resources or modules for those in a decision-making role would be an essential tool for both unpaid caregivers to have at their disposal and for publicly funded service providers who can support decision-makers initially.[523]

Professionals and Other Service Providers

The MHLC submission also emphasized the importance of providing further education about the roles and responsibilities of attorneys and guardians to both members of the bar and the judiciary. Similar concerns were voiced by other stakeholders. 

The other problem with the lawyers is there’s not a lot of education out there on this [mental health and capacity] issue and, you know, to a large degree they have to comply with the panel requirements that Legal Aid has got and for some lawyers, especially lawyers in areas where there’s not a lot of mental health going on, it’s hard for them to do that.  So, we don’t want to, you know, we want them to be updated but we don’t really want them to make it so onerous that people don’t want to be on the panel any more.

Focus Group, Rights Advisers and Advocates, September 25, 2014

The need for greater information and education targeted to professionals, including members of health regulatory colleges was emphasized in the submission from the Centre for Addiction and Mental Health. 

Capacity, decision‐making and guardianship legislation spans several Acts and is designed to cover the myriad of circumstances where a person may be incapable of making their own decisions. The complexity of this legislation can make it impractical and inaccessible to those who must use it every day.… Consultations with CAMH clinicians about capacity, decision‐making and guardianship legislation indicate that there is ongoing confusion and uncertainty about the current law in this area. Therefore, CAMH recommends that the LCO’s final report highlight the overall need for education, training and resources for clinicians, individuals, and their families on capacity, decision‐making and guardianship legislation. This should be a shared effort of government, universities, professional regulatory bodies and large employment institutions.

ACE, both in the commissioned paper jointly completed with Dykeman Dewhirst O’Brien for this project, and in its submission to the LCO, emphasized concerns about endemic misunderstandings of the requirements of the HCCA regarding capacity and consent among health practitioners, and the connected issue of the widespread use of forms, guides, tools and policies that were not in compliance with Ontario law. A review of a sample of materials from hospitals and long-term care homes by ACE and DDO revealed that many of these documents incorporated significant misunderstandings of the law: for example, several documents incorrectly suggested that SDMs could engage in advance care planning on behalf of individuals lacking legal capacity, and several institutions were using materials from other jurisdictions without adaptations to ensure compliance with Ontario law. This is of particular concern because focus groups with health practitioners indicated that “health care organizations’ forms drive practice”.[524]

Beyond the specifics of the law, professionals would also benefit from greater practical support and guidance on applying the law in the context of the wide range of needs and individual circumstances that they are likely to encourage. For example, professionals may benefit from support in addressing issues of cultural diversity in the context of legal capacity and decision-making.  

To sum up, there was very widespread agreement both as to the importance of education and information all those interacting with legal capacity and guardianship law, and as to the inadequacy of current means of imparting education and information, despite the best efforts of a wide range of organizations.


D.   Applying the Frameworks

The LCO’s Framework for the law as it affects persons with disabilities comments, 

Many laws are exceedingly complex, so that understanding and navigating them requires considerable effort and expertise, and persons with disabilities may be expected to do so on their own, without supports or appropriate accommodation. Those operating such systems may have an imperfect understanding of the needs and circumstances of persons with disabilities, or may harbor ableist attitudes or assumptions.[525]

The companion Framework for the law and older adults makes a similar comment. This is certainly a true statement for law regarding legal capacity and decision-making. The Frameworks directly connect this challenge to the importance of access to information and education, both for those directly affected by the law and for those charged with implementing it. As the Framework for the Law as it Affects Persons with Disabilities further comments, where there is a lack of access to information about rights and recourse under the law, “the autonomy of persons with disabilities may be undermined, as they are unable to make informed choices about laws, policies and programs that may affect them”.[526] Similarly, without an understanding of the law and of available mechanisms for rights enforcement, persons with disabilities and older persons will find it very difficult to safeguard their safety or security. Both Frameworks include as a consideration in measuring how processes under a law or policy comply with the principles, whether “mechanisms have been developed to ensure that [older adults or persons with disabilities] are informed about their rights and responsibilities under the law, and that they have access to the information necessary to seek access to their rights”. It is the view of the LCO that currently, Ontario’s legal capacity, decision-making and guardianship system does not adequately meet this consideration, and in this respect falls short in enabling Ontarians with disabilities or who are older adults to access the Framework principles. 

The principle of responding to diversity and individuality points to the importance of ensuring that information and education is truly accessible. Older adults and persons with disabilities may face a range of barriers to accessing information, including a lack of disability-accessible information and heavy reliance on online forms of information. Further, needs for information often arise at a point when individuals are in crisis, and at such times, these individuals will have additional difficulties in navigating complex systems and multi-layered bureaucracies.[527]

This principle also reminds us that some groups of older adults or persons with disabilities will find it more difficult than others to access information and education. Many service providers pointed to the additional challenges faced by older persons and persons with disabilities who are newcomers. Language may be a barrier; as well, these individuals may not have the social networks or navigational knowledge to be able to identify where they can seek information or assistance. Francophone communities raised similar concerns regarding access to information and services, particularly in areas that are more rural or remote. As well, those who live in low-income may have more challenges in locating accurate and comprehensive information that relates to them, and both persons with disabilities and older adults are more likely to live in low-income. A focus group with members of the Residents Councils for long-term care homes highlighted the many barriers to information experienced by people who live in these settings. 

The Frameworks recommend considering whether those charged with implementing the law have been provided with adequate ongoing training and education to enable them to perform their duties in a way that respects the principles, including training and education on the Charter, Human Rights Code and the Accessibility for Ontarians with Disabilities Act, anti-ageism and anti-ableism. It was the strong view of the vast majority of stakeholders consulted during this project that Ontario’s system falls significantly short in this respect, and that the implementation of the principles in the context of this area of the law is jeopardized as a result.


E.     The LCO’s Approach to Reform

Improving access to education, information and skills development is a central priority for the LCO’s approach to reform of law, policy and practice related to legal capacity and decision-making. These elements are fundamental to reducing the implementation gap; promoting dignity, autonomy, security, and participation and inclusion; and responding to diverse needs. 

Based on the Frameworks and on the feedback received through the consultations, in aiming to improve access to education, information and skills development, the LCO’s draft recommendations focus on achieving the following objectives:

1.     Promoting education and information that is:

·       accessible in the broadest sense of the term, taking into account disability-related accommodation needs, the diversity among those affected by the law (including cultural and linguistic diversity), the circumstances of those living in congregate settings and remote or rural areas, and the barriers faced by those living in low-income;

·       timely, so that individuals and institutions are able to access the information at those key transition points when they require it, including proactive provision of information as necessary;

·       appropriate in terms of the kind of information that is provided; and

·       trustworthy, in that it is free of bias or conflict of interest, as well as accurately reflecting Ontario’s laws and good practice.

2.     Increasing the coordination of the provision of education and information, so as to provide users with a clearer point of access, as well as enabling the identification of gaps and the development of priorities and innovative strategies.

3.     Maintaining a collaborative approach to the development of resources, so that organizations with expertise in the subject and intimate knowledge of user needs can be supported to develop information and educational resources that meet user needs.

4.     Identifying clear accountability for the coordination and provision of education and information related to legal capacity and decision-making.


F.     Draft Recommendations 

1.     Improving Coordination and Strategic Focus in the Provision of Education and Information

Clear statutory accountability for education and information related to legal capacity and decision-making laws

As noted above, while many organizations undertake information and education programs and initiatives relating to legal capacity and decision-making as part of their mandates to advocate, educate or provide services, no institution has a specific mandate related to education and information on legal capacity and decision-making. This lack of clear accountability leads to confusion among stakeholders and the public as to authoritative sources of information, and a lack of coordination in the development of information and education. As was noted earlier in the Chapter, the LCO’s consultations evinced considerable confusion among almost all key stakeholder groups about where the information that they needed could be found. System users are regularly relying on information that is inaccurate, outdated, or simply inapplicable to the Ontario system. There are significant gaps in the provision of information, particularly to groups that are more vulnerable or difficult to reach. For legislation which is now two decades old, the level of misunderstanding, confusion and simple ignorance is both surprising and disturbing. This is particularly so because of the fundamental nature of the rights at issue. 

Many stakeholders advocated for the benefits of a strong, central coordinating body for this area of the law. In its submission to the LCO, and in keeping with the recommendations in a commissioned paper prepared by its lawyers, Kerri Joffe and Edgar-Andre Montigny, ARCH Disability Law Centre, has proposed that persons affected by legal capacity and decision-making laws would be best served by a system that includes a central coordinating body, though one with a mandate much broader than education and information:

Persons with capacity issues require a central body that they can turn to for information about their rights, access to a dispute resolution mechanism, and legal advice or referral where required.  Equally, support persons will need access to information and training to enable them to carry out their role effectively.  This requires that there be a central body that can ensure that qualified and trained professionals are available to offer support and assistance to persons with capacity issues, train and monitor support persons, and resolve disputes between individuals and their support persons. … A central body would be well placed to monitor the entire supported decision-making regime and identify trends and issues that require investigation and reform.[528] 

The LCO believes that Ontario would benefit by the allocation of a clear responsibility for improving access to education and information related to this area of the law. Identification of clear responsibility would help achieve the following objectives:

·       stakeholders and system users more easily able to identify a starting point for accessing the information and resources that they need, and to be appropriately confident about the trustworthiness and applicability of the information that they source;

·       coordination of the resources now being allocated to information and education in this area, ensuring that work is shared rather than replicated, and that scarce resources are effectively deployed;

·        a more strategic approach to the development and dissemination of information and resources than is possible within the current extremely decentralized approach, so that gaps, promising approaches and potential partnerships are systemically identified, and resources are targeted where they will have the most significant impact. 

It is the view of the LCO that this could most easily be accomplished by allocating clear statutory responsibility for education and information related to legal capacity and decision-making law. This is not meant to undermine the important work carried out by many organizations, but to allow for the development of a more coherent and strategic approach to education and information in this area, by identifying a central location of responsibility. Such a clear statutory statement would also have the effect of recognizing the essential role of information and education in the successful implementation of these laws, and in protecting the autonomy and safeguarding the rights and wellbeing of those directly affected. 

It is not uncommon in other jurisdictions to provide a statutory mandate for education and information in this area of the law. The 2013 Irish Bill to reform that nation’s legal capacity and decision-making laws (which reached Committee stage in June 2015) specifically tasks the Irish Public Guardian and Trustee with the “promotion of public awareness of matters (including the principles and procedures of the United Nations Convention on the Rights of Persons with Disabilities…) relating to the exercise of their capacity by persons who lack or shortly may lack capacity to make decisions for themselves.”[529] More specifically, the Bill gives the Public Guardian and Trustee responsibility for establishing a website or otherwise providing for electronic dissemination of information to members of the public, as well as promoting public awareness of the law to persons likely to create enduring powers of attorney, enter into decision-making assistance agreements, or apply to act as co-decision-makers or representatives. 

In the Australian state of Victoria, the Office of the Public Advocate is required, among other functions, to “arrange, co-ordinate and promote informed public awareness and understanding by the dissemination of information” about the provisions of their legal capacity and decision-making legislation, the role of the Tribunal and the Public Advocate, the duties and powers of guardianships and administrators, and the protection of persons with disabilities from abuse and exploitation, as well as the protection of their rights.[530] The Public Advocate undertakes a range of education and information activities, including the provision of community education sessions to a range of stakeholders, publication of fact sheets and other information documents, and provision of support to persons using the system.[531] In its review of Victoria’s legal capacity and decision-making laws, the Victorian Law Reform Commission noted that stakeholders raised concerns about the Public Advocate’s limited resources,[532] and made a number of specific recommendations about the key elements that community education efforts should emphasize.[533] It commented that while the Public Advocate should retain primary responsibility for community education in this area, “these programs should be delivered in partnership with other organisations that interact with the many different user groups of guardianship laws”.[534]

In Ontario, where legislation addresses the rights of individuals who are vulnerable or marginalized, it is not uncommon to include responsibilities related to education in the enabling statute. For example, under the Provincial Advocate for Children and Youth Act, 2007, the Provincial Advocate is made responsible, among other duties, to “educate children, youth and their caregivers regarding the rights of children and youth”.[535] Under the Accessibility for Ontarians with Disabilities Act, 2005, the Accessibility Directorate includes, among its functions, “conduct[ing] research and develop[ing] and conduct[ing] programs of public information on the purpose and implementation of this Act”.[536] Similarly, the Ontario Human Rights Code includes among the functions of the Ontario Human Rights Commission, developing and conducting programs of public information and education and promoting awareness and understanding of, respect for and compliance with the Code.[537] That is, this proposal is not unusual in the context of legislation that directly affects rights, as does this area of the law. 

Such a statutory mandate should not be understood as necessarily entailing significant new expenditures, although progressive realization may require expansion: at the outset, a reallocation of currently dispersed resources to a more centralized function may be beneficial. 

Where should a statutory responsibility for education be allocated?

Should government include a statutory responsibility for education and information related to legal capacity, decision-making and guardianship in reformed legislation, where should such authority be allocated?

The most obvious option is the office of the Public Guardian and Trustee (PGT), which already carries out many important functions related to legal capacity, decision-making and guardianship, including acting as a decision-maker of last resort under both the SDA and HCCA, and as statutory guardian for property; appointing replacement guardians for property;  conducting “serious adverse effects” investigations and applying to the court for temporary guardianships as appropriate; reviewing applications for court appointments of guardians, and making submissions or appearances as appropriate; reviewing accounts of guardians for property when they are submitted to the Court for approval; maintaining the registry of guardians; and arranging for “section 3 counsel” for those who are subject to proceedings under the SDA and require counsel. Notably, the PGT already provides some education and information functions, as briefly described above, and fields thousands of phone calls each year. In the Irish Bill, referenced above, the Public Guardian and Trustee is proposed to have responsibility for a wide range of functions, including public education and information. 

However, as was discussed in Chapters VIII and X, the LCO believes that the optimal role for the PGT is as a professional and expert decision-maker, focused on meeting the needs of vulnerable clientele whose needs cannot be appropriately met elsewhere, and free of conflicts of interest in carrying out this role.

Another option would be for government to create a new office, responsible for all system functions related to legal capacity and guardianship other than last resort guardianship.  This would include education, oversight of Capacity Assessors and the proposed Professional Representatives, complaints and investigations, and the basic oversight mechanisms for guardians that are currently in place, such as review of accounts of guardians when they are submitted for approval and maintenance of the register of guardians.  The LCO agrees with ARCH Disability Law Centre and other stakeholders that a central, coordinating office, bringing brought together the various system functions and providing an expert and visible resource for all stakeholders, would be of benefit to the legal capacity, decision-making and guardianship system as a whole.  The current fragmented and decentralized system is, as has been noted throughout this Interim Report, extremely difficult to navigate for individuals directly affected, families and service providers. In the current climate of fiscal restraint, this may not be an appealing option, but it could be considered as a matter of progressive realization. 

A practical option within the current system for locating strengthened education and information functions would be an expanded Capacity Assessment Office. This Office already performs important work in assisting individuals in navigating through the current system, as well as providing training to Capacity Assessors. Properly resourced, the current expertise of the Office could be expanded to apply to a broader range of issues within the system. 

What should be the focus of this new education and information function?

It is the LCO’s view that the valuable work already being done should not be supplanted, but supported and enhanced. It is clear from the LCO’s research and consultations that community, advocacy and service organizations that have direct ties to those using or implementing the laws often have, in addition to existing relationships as trusted sources of information, deep knowledge of information and education gaps, and considerable experience in devising education strategies that are appropriate for their particular communities. Given the wide range of individuals and institutions affected by this area of the law, no one organization can single-handedly meet all needs. 

However, there are several pressing education and information issues in this area:

·       Improving visibility of and access to information: Because there is currently no central information source, individuals and smaller organizations are often unsure where to look for the information that they need. Finding appropriate and accurate information may require considerable patience and navigational skills, so that people who are in crisis or do not have strong skills may not be able to locate the information that would assist them. Many individuals participating in focus groups mentioned contacting three or four different offices to find information. Others had difficulty identifying where they would begin the search for information. Creation of a central source for information and education on these issues would make it easier for individuals to locate information.

·       Ensuring access to accurate information: Concerns have been raised about the accuracy of the information that individuals or institutions are accessing. Individuals or organizations may inadvertently rely on outdated information, or on sources from other jurisdictions. As well, because this is a complex area of the law, some resources may inadvertently incorporate errors. ACE and DDO identified the problem of reliance on inaccurate information about the law governing health care consent and advance care planning as a major concern.[538] Poor implementation of the law may be caused by good faith reliance on incorrect information.

·       Developing a more strategic and coordinated approach: Because education and information in this area has been developed in a fragmented fashion, as organizations develop materials or initiatives to meet their own mandates and the needs of their own communities, they may not be aware of each other’s work, and so efforts may be unnecessarily replicated. As well, there may be communities or needs that are not being served, because there is no organization that has the resources or the mandate to address them. The new function could work with existing structures and institutions to identify needs and develop strategies, initiatives and appropriate materials.

Education and information in this area should include the following areas:

·       rights and responsibilities under law, including means of enforcing rights and resolving disputes;

·       the concepts underlying the law, including legal capacity, and substitute and supported decision-making;

·       the principles that animate the law, and their links to the fundamental human rights as expressed in the Human Rights Code, Charter of Rights and Freedoms and international instruments, including the Convention on the Rights of Persons with Disabilities;

·       good decision-making practices; and

·       resources and supports available to persons directly affected, to family caregivers and to those acting as supporters or substitutes.

It may also be valuable to create practical plain language tools or guides in a number of different languages or targeted to the needs of specific communities, such as Aboriginal older adults, or members of particular newcomer communities, recognizing where appropriate that different cultural understandings of the same concept may require sensitive translation or preferably, guides originally written in languages other than English or French. Tools might also focus on areas where there are widespread shortfalls in skills or understandings among SDMs: for example, it was suggested that it would be helpful to make available resources to assist substitute decision-makers with keeping records, or developing management plans. 

Key information gaps identified for persons directly affected include the following circumstances in particular:

·       the importance of planning ahead, including both the benefits and risks of powers of attorney (and if implemented, the proposed support authorizations and decision-making networks), as well as information about how these documents can be customized to the needs of the individual;

·       the nature of assessments of capacity, including the appropriate usage of such assessments and the rights of individuals related to assessments of capacity;

·       the roles and responsibilities of substitute decision-makers (and supporters if incorporated into Ontario law); and

·       their rights to recourse under the law, should they feel that they have improperly been found incapable or that a substitute or supporter has misused their powers.

The following were among the many gaps family caregivers and substitute decision-makers identified:

·       the purpose and impact of a power of attorney or a guardianship;

·       the specific responsibilities of an attorney or guardian;

·       the concept of legal capacity, especially including its decision-specific nature;

·       principles and good practices for decision-making, including the responsibilities to encourage participation, and to take into account the values and wishes of the individual;

·       the rights of persons directly affected by decision-making laws, including rights to request a new capacity assessment or to challenge a finding of incapacity under the HCCA;

·       practical guidance on keeping accounts, encouraging participation in decision-making, managing financial responsibilities, and advocating for the individual that they have been appointed to assist;

·       information about practical supports and resources that are available to them; and

·       appropriate methods of addressing family disputes or concerns about misuse or abuse of an appointment.

The information and education needs of professionals and third parties will vary widely, depending on the nature of their interaction with the law and the particular communities or clients they serve or interact with. Professionals who are responsible for implementing the law (such as health practitioners, lawyers and social workers) will often require in-depth, comprehensive training and tools, as the issues that they deal with are frequently extremely complicated. Service providers may need access to more basic information: the LCO heard considerable need for information on issues related to the concept of capacity, the various mechanisms for assessing capacity, and the appropriate response to concerns about abuse or misuse. 

Education and information may take on a variety of forms, including print or online materials, public awareness campaigns, in-person training or education sessions, or information hotlines, among others. It would be the role of the mandated institution to identify the most pressing needs and develop the appropriate strategies to meet them. In addressing the needs of persons directly affected, the mandated institution should take into account the factors identified in the Frameworks, including the needs of individuals in rural and remote settings, as well as those in congregate settings where access to information may be more challenging; outreach to cultural communities; disability accessibility; and involving persons directly affected in strategies for outreach to those groups.  

DRAFT RECOMMENDATION 45: The Ontario Government include in reformed legislation a statutory mandate for the coordination and development of education and information initiatives, strategies and materials regarding legal capacity and decision-making. 

DRAFT RECOMMENDATION 46: The institution allocated the statutory mandate identified in Draft Recommendation 45 develop, either independently or in cooperation with other institutions and structures, education and information strategies, initiatives and materials, to address the information and education needs of persons directly affected by the law; family members and substitute decision-makers and supporters; professionals who implement the law; and service providers who interact with the law.  

DRAFT RECOMMENDATION 47: In developing education and information strategies, and materials, responsible institutions

a)     take into account the needs of diverse communities affected by the law, including provision of materials in plain language, in multiple languages, in a variety of disability-accessible formats, and in non-print formats (such as, for example, in-person or telephone information).

b)     give specific attention to the needs of persons living in settings such as long-term care homes, psychiatric facilities, hospitals and other settings where access to the broader community may be limited.

c)      consult persons directly affected by the law, families, and those who work with or represent these individuals.


2.     Improving Information for Family and Other Substitute Decision-makers 

Provision of information and education to family members acting as SDMs was widely identified as a priority across multiple stakeholder groups. A number of stakeholders suggested that at least some education be mandatory. For example, the Mental Health Legal Committee recommended obligatory education respecting the roles and obligations of attorneys and guardians. Completion of qualifications or a course ought, in the view of the Committee, to be part of the appointment process or required on the commencement of the appointment. The Mental Health Legal Committee notes in its submission,

Beyond the prevention of harm to the incapable person, requirements that information and advice be provided to attorneys and guardians before their actions are under scrutiny would be preventative and could result in a net cost savings in government and judicial resources otherwise directed at enforcement.

Kerri Joffe and Edgar-Andre Montigny of ARCH Disability Law Centre took a similar view in their paper commissioned by the LCO.

At minimum, the training should educate decision-makers about their legal obligations under the SDA; the scope and limits of their decision-making authority; and the rights of the ‘incapable’ person. The training should educate decision-makers about how to carry out their functions in a manner that respects the rights-based principled approach to legal capacity. For example, decision-makers should understand the principle of protecting and promoting the autonomy and independence of ‘incapable’ persons, and should be aware of their role in implementing this principle in practice.[539]

The Australian state of Victoria currently provides optional training sessions for newly appointed guardians and administrators. The Victorian Law Reform Commission, in its review of guardianship law in that state, supported reforms to allow the Victorian Civil and Administrative Tribunal (VCAT) to order individuals to complete training as a condition of appointment as a guardian or administrator.[540] 

The LCO agrees that a central component of a renewed focus on education and information should target SDMs and supporters (if included in reformed laws). Given that the numbers of persons who act as SDMs in Ontario is very large, the LCO does not believe it is feasible to institute a mandatory certification or training program, at least not within the resources presently available. 

However, there ought to be not only better information, but also better access to information, as well as to voluntary education programs. The draft recommendations above regarding the identification of accountability for education and development of priorities and strategies, should make it easier to meet the needs of this group. The LCO believes that the creation of a visible, accessible, authoritative source of information for SDMs (and potentially, formal or informal supporters) would make a significant contribution, given the widespread confusion among family members and SDMs about sources of information. The creation and maintenance of such a clearinghouse could be undertaken within government, or could be outsourced to organizations with expertise in public legal information, such as Community Legal Information Ontario, or to organizations with expertise in this area of the law. 


a) As one element of a broader education and information strategy, the responsible institution create a central, coordinated clearinghouse of information for substitute decision-makers and supporters, in plain language and in a variety of languages and accessible formats, including print, online and interactive media.

b) Information include instruction on the legislation, statutory duties and the rights of the affected individual, good decision-making practices, tools (for example, for maintaining records) and resources where supports can be found.

As a simple means of further supporting access to information for personal appointments, standard forms for powers of attorney and the proposed support authorizations should identify how these individuals can access further information and education, through links to the proposed central clearinghouse, for example. In addition to amendments to the existing standard forms for powers of attorney including such information, it could be included in the proposed forms for support authorizations, statements of commitment and notices of attorney acting. 

DRAFT RECOMMENDATION 49: The Ontario Government include in standard forms it creates in relation to personal appointments (such as the current forms for powers of attorney and proposed forms for support authorizations, statements of commitment and notices of attorney acting) information about how readers can access further information on the topic, such as through the proposed clearinghouse. 

For individuals appointed through the automatic process under the HCCA, a relatively simple means of improving access would be to ensure that the health practitioner, upon identifying an SDM in order to seek consent, provides basic information to the SDM about the role, their duties and how to access further information. 

The Ontario Court of Appeal in M. (A.) v. Benes canvassed the importance of the provision of information to a substitute decision-maker under the HCCA, to allow that person to fulfill their obligations under the Act.[541] A prior decision by the Superior Court of Justice had found that the principles of fundamental justice required that SDMs be informed early in the process of their rights and duties under section 21 of the HCCA, including the criteria by which their treatment decisions would be judged by the Board and the powers of the Board on review. The Court held that the failure of the HCCA to include effective provisions for explaining their rights and duties to SDMs was unconstitutional, since it violated section 7 of the Charter of Rights and Freedoms.[542] The Court of Appeal overturned this ruling, finding that that properly construed, section 10(1)(b) of the HCCA already imposes a statutory obligation on health practitioners to ensure that SDMs understand the statutory criteria when deciding whether consent to a proposed treatment should be given or refused.

In practice, as the submissions of stakeholders indicate, SDMs under the HCCA are not consistently provided with such information. As part of the reform of the rights information regime under the HCCA proposed in Chapter V, the LCO suggests that the duty of the health practitioner to provide this information be codified and clarified. To be of use, this need not be a complicated process: provision even of a standard pamphlet to all SDMs appointed in this way would be a considerable advance on the current state of affairs in which SDMs may find themselves making important and difficult decisions with no guidance as to their legal responsibilities. 

DRAFT RECOMMENDATION 50: The Ontario Government amend the Health Care Consent Act, 1996 to make explicit a clear and specific duty to health practitioners to provide information to substitute decision-makers regarding their roles and duties under the Act, as part of the process of seeking consent; the creation of a standard, statutorily mandated form may support health practitioners in carrying out this responsibility.  

As well, the LCO believes that, where an external appointment is made, the adjudicator should have the power to order the appointee to complete training where the circumstances warrant: obviously personal appointments do not offer the same opportunity to require training at the outset of the appointment, but adjudicators should have the power to order training of SDMs or supporters in other circumstances where disputes are brought before them. 

DRAFT RECOMMENDATION 51: Adjudicators be empowered, in a matter before them with respect to the Substitute Decisions Act, 1992, to require a guardian or person acting under a power of attorney or support authorization to obtain education on specific aspects of her or his duties and responsibilities.


3.     Strengthening Education and Training for Professionals

As was briefly described above, professionals who must apply legal capacity, decision-making and guardianship laws in the course of their work potentially receive information and education about their roles and responsibilities from a wide array of sources, including their educational institutions, regulatory bodies, professional associations and employers, as well as from government and from experts and academics (such as the National Initiative for the Care of the Elderly, for example). 

The plethora of professions involved in applying legal capacity, decision-making and guardianship laws, together with the multitude of information providers, makes developing recommendations for improving education and information tailored to these needs challenging. 

The draft recommendations in Chapter V regarding the role of Health Quality Ontario, the compliance mechanisms related to the Long-term Care Home Acts and the Local Health Integration Networks (LHINs) are also substantially relevant to issues of training, education and information among professionals and others working in the field of health and long-term care: the draft recommendations outlined below should be understood in concert with those draft recommendations. 

Educational institutions provide the foundation for professional understandings and attitudes, as well as often providing access to ongoing information and education programs. It is important to remember, however, that many professionals are now educated outside Ontario, whether elsewhere in Canada or abroad, which places some limitations on the immediate potential impact of reforms in educational curricula on practice in the field. 

The LCO believes that the health regulatory colleges can play a strong role in the education of health professionals in this area. The Regulated Health Professions Act (RHPA) provides Ontario’s health regulatory colleges with a common legislative framework for regulating their members’ skills, practices and conduct. The RHPA’s primary objectives are to:

1.     protect the public from harm in the delivery of health care services,

2.     ensure that health professionals are accountable to the public, and

3.     guarantee access to quality care by establishing standards for professional competence and ethical conduct.[543]

Section 4 of the RHPA creates a Health Professions Procedural Code, which is deemed to be part of each health profession act. This Code specifies that the duty of each College is “to work in consultation with the Minister to ensure, as a matter of public interest, that the people of Ontario have access to adequate numbers of qualified, skilled and competent regulated health professionals”.[544] The objects of the colleges include, among others,

·       regulating the practice of the profession and governing the members in accordance with the applicable legislation;

·       developing, establishing and maintaining standards of qualification for persons to be issued certificates of registration;

·       developing, establishing and maintaining programs and standards of practice to assure the quality of the practice of the profession;

·       developing, establishing and maintaining standards of knowledge and skill and programs to promote continuing evaluation, competence and improvement among the members.[545]

The Code sets out the governance structure and practice standards to be followed by the colleges, as well as the procedural elements of the regulatory system involving registration, complaints, investigations, discipline and incapacity.[546] That is, the RHPA sets out a general governance template, with each regulated health profession governed by a “profession-specific statute outlining its scope of practice, the controlled acts its members can perform (if any), and titles restricted to members”.[547] 

As well, the RHPA has institutionalized the concept of “quality assurance” in the regulation of Ontario’s health professionals. The Code defines a “quality assurance program” as “a program to assure the quality of the practice of the profession and to promote continuing evaluation, competence and improvement among the members”.[548] Though the health regulatory colleges maintain discretion in designing quality assurance programs, all are required to: (i) leverage continuous education and professional development to improve patient outcomes and (ii) regularly assess and improve its members’ competency.[549] 

Health regulatory colleges are responsible for ensuring that quality assurance programs meet the legislative requirements set out in the Code. All regulated health professionals are expected to participate in a continuing competence program that encourages members to “demonstrate the ways in which they have maintained their professional competence and enhanced their practice”.[550] As well, members should be well-acquainted with their college’s quality improvement strategy which “aims to improve work processes in order to provide better quality service”.[551]  

The health regulatory colleges employ a number of quality assurance mechanisms, including mandatory examinations and performance assessments, to stimulate continuous learning, monitor compliance, and trigger enforcement protocol when necessary. The RHPA allows for variation in the design of quality assurance programs across health professions to ensure colleges have the flexibility they need to fulfill their overarching public interest mandate in a way that addresses the unique needs and concerns associated with their context. Each college outlines how continuous learning and professional development initiatives are implemented, most likely through a centralized template so as to allow for comparative analysis and systematic evaluation of the results.[552]

DRAFT RECOMMENDATION 52: Professional educational institutions educating lawyers, health practitioners and social workers and other professions involved in applying these laws in the course of their professional duties re-examine their curriculum and consider strengthening coverage of issues related to legal capacity, decision-making and consent, particularly in the context of training in ethics and professionalism. 

DRAFT RECOMMENDATION 53: Health regulatory colleges falling under the Regulated Health Professionals Act include issues related to legal capacity and consent as a priority in their quality assurance programs, including identification and assessment of core competencies in this area.


DRAFT RECOMMENDATION 54: The Ministry of Health and Long-term Care support and encourage the health regulatory colleges in developing legally sound and effective quality assurance programs related to legal capacity and consent.


G.   Summary

Based on the results of public consultations and research, the LCO has identified as a priority for reform strengthening of the provision of education and information to those interacting with this area of the law. The LCO’s public consultations clearly identify widespread shortfalls in this area at the current time: these shortfalls affect the quality of the implementation of every aspect of this area of the law. . 

The Frameworks emphasize the importance of ensuring that persons with disabilities and older adults have the information necessary to understand and access their rights, and that those charged with implementing or applying the law have been provided with adequate ongoing training and education to enable them to perform their duties in a way that respects the Framework principles. 

We have identified the following key priorities for strengthening the provision of education and information:

·       promoting clearer accountability for the provision of appropriate and accurate information and education;

·       increasing the accessibility of education and information for all those interacting with the law; and

·       enabling a more coordinated and strategic approach to the development and delivery of education and information. 

To these ends, the LCO recommends the following measures:

·       Inclusion in legislation of clear responsibility for the development and coordination of education and information initiatives;

·       creation of the capacity to identify gaps and priorities for the development and delivery of information and education; development and coordination of initiatives to meet these needs; and creation of a central clearinghouse where stakeholders can locate accessible, relevant and trustworthy information;

·       strengthening of the ability to connect families and substitute decision-makers to education and information resources; and

·       strengthening of the provision of information and education to professionals who are charged with implementing or applying the law. 

These draft recommendations should be understood in the context of the draft recommendations in Chapter V to improve the quality of assessments of capacity under the HCCA and in Chapter VII to promote understanding of persons acting under a power of attorney of the responsibility which they are undertaking.



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