A. Substitute Decision Making in Ontario

1. Current legislation in Ontario: Health Care Consent Act 1996[82] and Substitute Decisions Act 1992[83]

In 1992, Ontario codified the common law of informed consent in three separate but interrelated statutes, the Consent to Treatment Act,[84] the Substitute Decisions Act,[85] and the Advocacy Act.[86] This legislative package was substantially amended in 1996 when the Consent to Treatment Act and the Advocacy Act were repealed, the Substitute Decisions Act was amended, and the Health Care and Consent Act, 1996 was enacted. The Substitute Decisions Act applies to both court appointed personal and property guardianship and to powers of attorney. The Health Care Consent Act applies to health care decisions generally, and applies to both the patient who is not incapable and to the substitute decision maker. The Health Care Consent Act also provides for when a person lacks capacity and requires a substitute decision maker for a health care decision, and sets out a hierarchy of substitute decision makers where one has not been appointed under the Substitute Decisions Act. The Act applies to care facility admission (not including hospitals or mental health facilities), in addition to administration of medical treatment and the provision of personal assistance services.[87]

Together, the Substitute Decisions Act and the Health Care Consent Act provide a markedly comprehensive framework for substitute decision making in Ontario. Key components of the system are discussed below. [88]

a) Principles and Procedures: Maximising Autonomy and Participation

Both the Substitute Decisions Act and the Health Care Consent Act provide for the principles and procedures to be followed in appointing substitute decision makers, and in making substitute decisions and, where necessary, in making decisions on the basis of the best interests of the incapable person. The principles and procedures to be followed in all contexts are intended to maximise personal autonomy and involvement in decision making, even after the loss of capacity, by requiring that applicable previously expressed (while the person was capable) wishes be considered by the substitute decision maker. Decision makers are also required to take into consideration the wishes of the incapable person (while incapable) where relevant. The Substitute Decisions Act requires the Public Guardian and Trustee to investigate situations in which an allegedly incapable person may have suffered adverse effects to their person or property.

b) Graduated Approach to Capacity/Decision Making

Consistent with the modern approach to adult guardianship that requires the “least restrictive, intrusive, stigmatizing and depowering mode of intervention necessary to meet an adult’s needs, which reflects an adult’s wishes to the maximum possible degree,”[89] the Substitute Decisions Act and the Health Care Consent Act take a graduated approach to capacity and decision making (a person may be fully capable of making some kinds of decisions independently, while requiring assistance with other kinds of decisions or requiring a substitute decision maker for certain kinds of decisions) as opposed to the global approach (a person is either capable or incapable), and recognises that capacity may change over time. The graduated approach is also consistent with capacity as it is defined in the common law. Capacity is defined in the legislation, as is the process through which capacity must be assessed.

c) Capacity Assessment

The question of who evaluates capacity is decision dependent: the answer will turn on the kind of decision in issue, and whether the legislation specifies that a particular type of assessor or evaluator must make the determination. If no particular assessor/evaluator is specified, the common law rules applying to capacity assessment will apply.[90] In all cases, a person must be informed of the right to have the finding reviewed by the Capacity and Consent Board.

Regarding health treatment, the health practitioner proposing the treatment is responsible for assessing the capacity of the patient to consent to that treatment.[91] The Health Care Consent Act also specifies that capacity to consent to enter into a care facility must be determined by an “evaluator,” defined in section 2(1) of the Act.[92] “Capacity assessors” must be used to assess capacity for the purposes of statutory guardianship of property, and to “trigger” a continuing power of attorney for property or for a power of attorney for personal care unless an alternate “triggering” evaluation has been specified in the document. Capacity assessors may be used to determine capacity in other situations, outside of the health context. The Substitute Decisions Act, Regulation 460/05 sets out the necessary qualifications of “capacity assessors” for the purposes of the Act. Capacity assessors must follow the “Guidelines for Conducting Assessments of Capacity.”[93]

The Substitute Decisions Act specifies that a person must be informed that a capacity assessment is being carried out, and the possible consequences of that assessment must be explained.[94] No similar provisions exist in the Health Care Consent Act, but the courts have found that principles of procedural fairness require that an individual be given this information.[95]

d) Consent and Capacity Board

Individuals can ask that a finding of incapacity or a decision be reviewed by the Consent and Capacity Board. A treating physician, for example, may request a review of a substitute decision maker’s decision, or the substitute decision maker or person assessed may request a review. Where there is a conflict and the person is no longer capable, with no prior applicable expressed wishes, the Board will determine the decision that will be in that person’s best interests. Parties appearing before the Board are entitled to legal representation; where a person whose capability is in issue does not have legal representation, the Board may direct the Public Guardian and Trustee to arrange for it to be provided.[96]

A review of the decisions of the Consent and Capacity Board, and Supreme Court reviews of decisions, reveals that the Board provides a significant safeguard. The decisions of the Board, which may be appealed to the Supreme Court, have also generated an important body of case law interpreting the legislation and bringing greater clarity to its operation.

2. Evaluation

a) Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)? Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?

The legislation is “age-neutral” in the sense that age is not explicitly identified as a factor in, or potential cause of, mental incapacity. Three of the key components discussed above – principles and procedures intended to maximise autonomy and contribution; a graduated approach to capacity and decision making; and the review powers of the Capacity and Consent Board – are actively non-paternalistic and consistent with the autonomous decision making rights guaranteed by section 7 of the Charter (see discussion under “Canadian Charter of Rights and Freedoms”).

b) Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?

In its response to the Law Commission consultation, the Advocacy Centre for the Elderly (ACE) identified “Good Law, Bad Practice” as a “common theme with respect to the administration of the law as it applies to older adults, particularly in the health sector.”[97] Changes to the legislation itself were not necessary; what needed to be addressed was the implementation of that law. Several reasons were identified as responsible for inadequate compliance with the law governing substitute decision making in the health care sector:

Individual internalisation of social stereotypes and paternalistic attitudes regarding older adults as persons to be “done to” rather than persons in control of their own decisions;

Prioritisation of administrative interests and efficiency over individual decision making regarding treatment;

Mis-information about the law (and its requirements) in the area (use of misleading or unclear forms exacerbate this problem); and

Professional associations (responsible for dealing with complaints) may not understand the legal requirements regarding consent.

The result was that the rights of older adults and their substitute decision makers to consent or not consent to treatment, provided for in the legislation, were regularly abrogated in practice. To address the problems in implementation, ACE recommended:

training and education about the law and about avoiding stereotypical attitudes (on an ongoing basis and in faculties of medicine, nursing and social work);

a review of the Regulated Health Professions Act (to determine whether an alternative to traditional disciplinary procedures “after the fact” regarding failure to obtain consent to treatment was feasible); and

examination of the statutory requirements regarding rights advice; rights can only be enforced where individuals are aware of those rights, and how to enforce them.

The Ontario Bar Association (OBA) in its submission to the Commission also identified underlying stereotypical and paternalistic attitudes on the part of individuals implementing substitute decision making legislation as a significant issue. Those attitudes contributed to a misunderstanding of incapacity and older adults. “Strong policy statements… that ageism, sexism, discriminatory practices and stereotyping has no place in our society” were needed.[98] The OBA response also noted the following specific concerns with the application of the Substitute Decisions Act to older adults, including: [99]

The adversarial nature of the court process, requiring allegations of incapability, “polarizes positions” and “exacerbates conflict and strips the respondent of dignity”;

Costs of the court process mean that many allegedly incompetent persons are unable to afford representation by counsel, despite the significance of the matter;

Non-timeliness of the process;

Inappropriateness of remedies available through the court process;

The duties of a substitute decision maker to follow the incapable elderly person’s earlier wishes are not well understood and can be difficult to follow in practice;

Unavailability of alternative dispute resolution processes;

Applications regarding capacity were frequently motivated by other issues such as family conflict, or financial needs. The “real motivating issues… are frequently obscured by the focus on ‘capacity’ in the law and legal processes. The primary focus of these processes should be needs-based, addressing the social relationships of the person, how the people in those relationships are interacting with each other, and the best plan for that person and his or her finances or living arrangements;

The potential for misuse of powers of attorney, and practices in care facilities and hospitals that tend to exacerbate misuse (many care facilities encourage personal powers of attorney, and attribute inappropriate decision making power to them);

Older adults are frequently pressured by family members and by health professionals.

The OBA submission highlights the importance of the family context in which many substitute decision making matters involving older adults take place. “When the Substitute Decisions Act and Health Care Consent Act, 1996 were passed into law they did not anticipate the degree to which these laws would be applied in the context of ‘high conflict’ families. A significant number of court applications now involve substitute decision making for incapable adults and pit family members against each other. The legislation was never intended to address conflicts of this degree and type, and the current processes do not lend themselves to timely or appropriate resolutions.”[100] The OBA recommended that providing for alternative dispute resolutions would address this issue, providing a more suitable mechanism for resolving disputes in this context.

c) Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?

Substitute decision making legislation must provide, pro-actively, for mechanisms that will facilitate participation in the process, to the greatest extent possible, by the person whose decision making capacity is in issue. Pro-active mechanisms in this context mean the availability of independent advocacy services, as originally contemplated when the legislative package was introduced by the Ontario government in 1992. The current process for accessing the Capacity and Consent Board is not sufficiently pro-active, and nor is it suitable for high-conflict family situations. The particular vulnerability of older adults who become involved with this system makes a more passive approach unrealistic for many of the individuals concerned. Vulnerability is not exclusive to older adults interacting with the legislation, but for older adults that vulnerability will be emphasised or increased as it connects to social stereotypes and attitudes (older adults are “doddery” and can’t be trusted to make reasonable decisions; family members know what’s best for their older relatives; medical professionals always know the right thing to do; the institutional interests of the care facility are more important than the opinions of residents). In this respect, the law does not adequately take the needs of older adults into account.

The Advocacy Centre for the Elderly also noted a specific gap in Section 20(1) of the Health Care Consent Act, which sets out the hierarchy of substitute decision makers for people found incapable of making decisions regarding treatment, care facility admission and personal assistance services. “Section 20(2) states that an SDM must be ‘capable with respect to the treatment’; this provision often affects older spouses who are found incapable of giving consent for their spouse. There is no mechanism for reviewing this determination.”[101]

3. Summary

The system or scheme created by Ontario’s substitute decision making legislation is non-ageist, and does a good job of protecting the individual’s rights; balancing the individual’s rights to autonomy in decision making with the individual’s rights to physical dignity and integrity, not to be subjected to prolonged suffering or denied treatment. The implementation of that legislation is, however, problematic; rights that cannot be effectively exercised are rights “in the air” (as opposed to rights on the ground). Older adults who become engaged with substitute decision making, under either the Substitute Decisions Act or the Health Care Consent Act, will be in a vulnerable situation; entrenched ageist attitudes and stereotypes among professionals implementing the legislation will increase that vulnerability and the likelihood that autonomy will not be respected. The frequently high-conflict family context in which the legislation is implemented also increases the likelihood that substitute decision making will not occur in accordance with the guidelines set out in the legislation, but reflect conflicts and the interests of family members. As the submission of the Advocacy Centre for the Elderly shows, professionals and (possibly particularly) institutional staff may tend to make decisions that primarily meet institutional interests, in the absence of a strong counter-weight. These tendencies do not connote “badness” or selfishness, but reflect the coincidence of basic human tendencies to prefer decisions in one’s own interests, where they can be plausibly justified, with the ageist social attitudes that provide that justification.

The Consent and Capacity Board does provide a venue for resolving disputes in this area, but access is forbiddingly difficult for many individuals in this situation. A system of advocates, under the Advocacy Act, was originally contemplated as a necessary complement to the substitute decision making legislative package in 1992, recognising that individuals subject to substitute decision making will almost certainly need an independent advocate to assist with navigating the system. The advocacy legislation was repealed in 1996. Furthermore, no meaningful recourse exists (from the allegedly incapable person’s perspective) where treatment has occurred without consent.

B. Substitute decision making: Canadian legislative review

Legislation pertaining to substitute decision making relates to different kinds of decisions that are made in a number of different contexts. There is no inevitable scheme for organising the regulation of these forms of substitute decision making. The legislation in Ontario, for example, is relatively comprehensive, including provisions applying to powers of attorney (including the appointment of personal/health care proxies, or representatives) as a form of substitute decision making, in addition to court-appointed decision makers. Legislation in other provinces separates these categories of decisions and decision makers (having separate legislation dealing with powers of attorney and court appointed guardians, for example). The Decision-Making Support and Protection to Adults Act in the Yukon is “umbrella” legislation that includes, in Schedule A, “Supported Decisions Making Agreements” (Part 1); “Representation Agreements” (Part 2); “Court Appointed Guardians” (Part 3); “Adult Protection” (Part 4). Schedule B includes the Care Consent Act [pertaining to health care decisions], and Schedule C the “Public Guardian and Trustee Act,” which includes provisions for financial protection. The Yukon legislation is the most comprehensive substitute decision making legislation, and the principles underlying the “modern” approach to substitute decision making, discussed below, run throughout all parts of that legislation.[102]

1. Types of Substitute Decision Making Legislation

Legislation applying to these different kinds/contexts of substitute decision making may be classified as follows:

Court appointed guardianship legislation: [103] Court appointed guardianship legislation sets out the procedure for appointing a guardian where no substitute decision maker has been designated while capable by a person who is now incapable (through a power of attorney or personal directive/representative document). Court appointed guardianship legislation will also set out the requirements for a finding of incapacity, which will necessarily precede such an appointment.

Power of attorney legislation: [104] Powers of attorney are documents in which a person appoints another to make decisions on his or her behalf. Powers of attorney may be drafted so as to “spring” into effect on the happening of a pre-determined event, or may take effect immediately. Legislation enabling powers of attorney will set out the requirement for creating a power of attorney and may be very brief and general, simply providing that a person can appoint another to make decisions on his behalf with a power of attorney, or more complex, providing for the specific duties of people exercising a power of attorney, guidelines for exercising duties and powers, and protective measures directed to the misuse of powers of attorney. The section of Ontario’s Substitute Decisions Act that deals with powers of attorney is an example of this more detailed approach.

Personal directive/representative legislation: All provinces allow for a person, while capable, to appoint another person to make health care decision on their behalf in the event of incapacity. This issue may be dealt with in health care consent legislation of general application, or in specific legislation. [105] In Ontario, this role is incorporated within the personal power of attorney provided for by the Substitute Decisions Act. Personal or advance directives are the written wishes of a person to be followed in the event that he or she is later found to be incapable. Of course, anyone can write down wishes of this kind; statutory provisions dealing with advance directives clarify their legal effect. Advance directives have been controversial, on the basis that they encourage rationing of medical care and the withholding of life saving measures for older adults. Provinces providing for advance directives in legislation include the Yukon’s Decision-Making Support and Protection to Adults Act (applies also in Nunavut),[106] Alberta’s Personal Directives Act,[107] Saskatchewan’s Health Care Directives and Substitute Health Care Decision Makers Act,[108] and Newfoundland’s Advance Health Care Directives Act.[109] Ontario’s Health Care Consent Act does not provide specifically for advance directives, but where an advance directive accurately describes the wishes of a person now incapable, where they have not been subsequently over-ridden, it will have the force of prior expressed wishes made in any other form.

Legislation applying to substitute decision making in the health care context:[110] Many, but not all, provincial jurisdictions have legislation in place that applies particularly to decisions making in the health care context and will include, as one aspect of health care decision making, substitute decision making in the health care context. Health care decision making legislation may be more or less comprehensive, and may include provisions pertaining to proxy decision makers and or advance directives (see discussion above, under “Personal directive/representative legislation”).

There is considerable diversity within these general categories between the provinces and territories. Appointment of a personal representative for health care decision making in Saskatchewan is governed by legislation directed to health care consent, for example, which also sets out a hierarchy of substitute decision makers where no representative has been designated.[111] In Alberta, by contrast, the Personal Directive Act provides for individuals to appoint substitute health care decision makers (in the event that the person becomes incapable), and the provision of the Dependent Adults Act pertaining to “treatment of incapable adults” (section 29) authorises treatment on the basis of the opinion of two doctors or dentists, as relevant; there is no additional health care consent legislation (and so no legislated “hierarchy” of decision makers in the absence of a designated decision maker). In Ontario, the categories of personal (court appointed) substitute decision makers and personal powers of attorney created by the Substitute Decision Making Act essentially fulfill the functions of personal representatives in some other provinces. Where no decision maker has been appointed or designated pursuant to that legislation, the Health Care Consent Act provides for a hierarchy of substitutes.

There is also considerable discrepancy in terms of comprehensiveness. While each province and territory has a statute dealing with powers of attorney, Manitoba has legislation governing court appointment of substitute decision makers in limited circumstances only: where a person has a mental disability that is manifest before the age of 18 (explicitly excluding incapacity developing in later life)[112] or where a person has been admitted to a mental health facility.[113] This contrasts significantly with the comprehensive scheme set out in Ontario’s substitute decision making legislation. This structural diversity complicates the task of comparing “substitute decision making legislation” across Canada considerably.

2. Evaluation

Beginning in the 1970s[114] modern reform of adult guardianship legislation, replacing the older paternalistic “lunacy” model, began in Canada. The principles of modern adult guardianship legislation were described by Robert Gordon and Simon Verdun-Jones:[115]

The legal and social relationship known as guardianship is an extreme form of interference in the life of an adult and should be used only as a last resort. It should involve the least restrictive, intrusive, stigmatizing and depowering mode of intervention necessary to meet an adult’s needs, which reflects an adult’s wishes to the maximum possible degree. The need for intervention, the level and form of intervention, and an adult’s wishes should be ascertained through a multi-disciplinary capacity and needs assessment. If the need exists, the adult should be assisted by a competent and caring individual or agency, under a clear duty to follow a prescribed philosophy and fulfil prescribed tasks, appointed following a procedure consistent with the Charter of Rights in an accessible, friendly, but rigorous form.

These principles, discussed by Profs. Gordon and Verdun-Jones in the context of adult guardianship, apply equally in the context of substitute decision making more broadly, and may be defined as describing the “modern” approach to substitute decision making. Substitute decision making legislation in Ontario, Saskatchewan, the Yukon, and the Northwest Territories may be considered “modern” in this sense.[116]

Modern substitute decision making legislation, where it exists, provides far greater protection for the rights and freedoms of older adults as for any persons affected by it. The principles at the core of this approach, consistently implemented in practice, directly undercut ageist attitudes and stereotypes that dis-empower older adults. This opposition or tension between modern substitute decision making principles and entrenched social ageism makes the implementation of legislation embodying those principles a key issue. Individuals give effect to legislation, and many of those individuals must be assumed to have internalised prevailing attitudes about age and older adults. Legislation must be directive and explicit and provide for effective and accessible recourse and review.

a) Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)? Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?

Substitute decision making legislation generally does not explicitly mention or reference age as a “trigger” for incapacity. The question of implicit, underlying, paternalistic attitudes is more directly relevant in this context. Generally speaking, there is an inverse relationship between the modern approach to substitute decision making described above, which emphasis autonomy and circumscribed powers for professions and for substitute decision makers, and paternalism.

Actively non-paternalistic legislation must also anticipate, and provide for, decisions made on the basis of “best interests” in situations where an incapable person’s applicable wishes, expressed prior to incapacity, are not known. Ontario’s legislation, providing clear guidance to substitute decision makers in this situation regarding both health care decisions and substitute decisions outside the health care context, is an effective model of this kind of provision. Legislation in the Northwest Territories (Guardianship and Trusteeship Act) and the Yukon (Decision-Making Support and Protection to Adults Act) also refers explicitly to best interests, and the factors that substitute decision makers are required to consider in making that determination.

Court appointed guardianship

Substitute decision making legislation is not age specific and, generally, does not reference age. British Columbia’s Patients Property Act provides an exception to this rule; “age” is given as a potential reason for the decline of mental capacity.[117] Manitoba’s Vulnerable Persons Living with a Mental Disability Act, which provides for court appointment of a substitute decision maker for “vulnerable persons,” specifically excludes older adults (“vulnerable persons” are defined so as to specifically exclude older adults whose impairment develops in later life). [118]

Legislation that actively counteracts paternalistic attitudes (that are likely to influence implementation, even where not articulated in the legislation itself) will incoporate the modern approach to substitute decision making described above. Ontario’s legislation is an example of this approach, providing for the maximum possible participation in the decisions making process by the incapable adult and a graduated approach to capacity and assisted decision making, consistent with the right to “life liberty and security of the person” guaranteed by section 7 of the Charter (see discussion under “Canadian Charter of Rights and Freedoms”). Saskatchewan’s Adult Guardianship and Co-decision-making Act, the Yukon’s Decision-Making Support and Protection to Adults Act (applies also in Nunavut), and the Northwest Territories’ Guardianship and Trusteeship Act, also incorporates this approach. Proposed legislation in Alberta and British Columbia will introduce the modern substitute decision making model in those provinces (although in British Columbia there has been some controversy regarding the appropriateness of co-decision making in the financial/property context). The current legislation in Alberta (the Dependent Adults Act) and British Columbia (the Patients Property Act), the Infirm Persons Act in New Brunswick, the Disabled Persons’ Estates Act in Newfoundland and the Incompetent Persons Act in Nova Scotia employ a vague and generalised definition of capacity directed to general mental status (“infirmity” for example) rather than a graduated reference to specific decision making capabilities (the ability to understand and appreciate a particular category of decisions), and do not include provisions providing guidance to substitute decision makers in the exercise of their duties.

Power of attorney

Power of attorney legislation is not age specific and does not, unless specifically identified as a triggering event in a “springing” power of attorney, reference incapacity. Powers of attorney are of particular relevance to older adults to the extent that older adults, in anticipation of a possible future loss of capacity, will appoint a power of attorney to avoid the expensive and time consuming court appointed guardianship process, which may result in the appointment of a guardian that the individual would not, in fact, have chosen.

A “springing” power of attorney allows a person to choose in advance who their substitute decision maker will be in the event that he or she becomes incapable. The power of attorney creates a fiduciary relationship between the attorney (the decision maker) and the donor (the person creating the power of attorney), and the duties and powers of the attorney derive from the fiduciary principle, and the parameters of which are established by the fiduciary relationship. People exercising powers of attorney will be held to that fiduciary standard, whether or not those specific duties are set out in the applicable legislation. Providing some guidance about the content of those duties, for individuals who are unlikely to be familiar with fiduciary principles, makes it more likely that they will be exercised appropriately.[119]

Legislation permitting powers of attorney have traditionally been very simple, with none of the oversights that are provided for with regards to court appointment of guardians. One reason for this is that, historically, powers of attorney have become inoperable if the donor becomes incapable, with the result that donors will be able to supervise the arrangement themselves. As springing powers of attorney have become accepted, the question of what kinds of safeguards are necessary to prevent misuse of the substitute decision making power has come into focus. Where individuals are exercising powers of attorney of behalf of incapable donors, they will also benefit from clear guidance regarding the exercise of their duties, just as substitute decision makers in other contexts do.

Some have argued that more complex power of attorney legislation including specific duties and limited powers, and protections such as registration intended to minimise power of attorney abuse, infringe donor autonomy and privacy, and dissuade people from providing for their own substitute decision making process, making court appointed guardianship, a more invasive and controlling process, more likely.[120] On the other hand, it has also been suggested that greater oversight, including registration, allows for a more relaxed approach to capacity for creating a power of attorney, and so increases accessibility. Imposing “too high a standard of capacity” for the execution of a power of attorney would frustrate the intentions of many individuals actually seeking a power of attorney, as “in practice it is likely that many powers will be executed when symptoms of mental incapacity have begun to manifest themselves.”[121] Considering the English statutory scheme in Re K, Lord Hoffman concluded that because the exercise of a power of attorney was “hedged about” with statutory protection, specifically registration, “too high a standard of capacity” was not required. Considering the question in Egli v. Egli,[122] the B.C. Court of Appeal concluded that, as no equivalent safeguards were present in British Columbia, a valid power of attorney required a higher level of capacity excluding a greater number of potential donors, for whom court appointment of a substitute decision maker would become the only option.

The Egli point is an important one, contrasting sharply with the perception that increased protective measures incorporated into power of attorney legislation makes this private, relatively non-paternalistic option less available to would be donors. Evaluation of powers of attorney legislation is complicated by this dual analysis; given that powers of attorney are in themselves a less paternalistic approach to substitute decision making than the court appointment process, the question of their availability to would-be donors is an important point.

Personal directive/representative legislation

Directive and personal representative legislation is non-age specific and self-consciously non-paternalistic, enabling the individual to select his or her own proxy decision maker for health care decisions or “direct” decision through pre-expressed wishes.

Advance directives, while controversial, are considered by some to be an essential element of a non-paternalistic, autonomy enhancing, approach to substitute decision making in the health care context; in effect, by removing the need for “substitute” decision making at all, with the now incapable individual “directing” his or her care through the wishes expressed in the directive. Legislation enabling the appointment of “proxy” decision makers for health may be considered less paternalistic, as with substitute decision making generally, where the duties of the proxies to consider applicable prior expressed wishes are explicitly set out,[123] as opposed to a more generalised approach, enabling the appointment of a proxy decision maker with no further guidance.[124]

Legislation applying to substitute decision making in the health care context

Legislation in this area is, like adult guardianship, non-age specific and age is identified as a criteria or “trigger” for substitute decision making in legislation in any province.

Ontario’s Health Care Consent Act works together with the Substitute Decisions Act where health decisions involve persons who are incapable; the two pieces of legislation are similar in many respects, providing for the same graduated approach to substitute decision making and incorporating principles and procedures that will maximise patient autonomy and participation in decision making, consistent with the Charter rights protected by section 7. As the Substitute Decisions Act can be considered to be a model of the “modern” approach to adult guardianship, Ontario’s Health Care Consent Act can be considered a model in the area of health care substitute decision making, promoting patient autonomy and contribution as opposed to providing for a paternalistic “doctor knows best” approach on the part of health care providers.

Prince Edward Island’s Consent to Treatment and Health Care Directives Act, British Columbia’s Health Care (Consent) and Care Facility (Admission) Act, the Yukon’s Decision-Making Support and Protection to Adults Act, which also applies in Nunavut and also proposed amendments to Alberta’s Personal Directives Act also incorporate and embody the “modern” approach to substitute decision making found in Ontario’s model.

b) Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?

Because of entrenched ageist attitudes on the individual and social level, legislation must be implemented so as to proactively promote the recognition of rights guaranteed by legislation, and ensure that substitute decision makers exercise their authority in accordance with the legislation.

Due to the fact implementation is largely about how legislation is carried out and interpreted, with difficulties arising where practice deviates from that legislation, problems with implementation will not, primarily be a function of the legislation itself, unless the legislation gives insufficient guidance about how it should be carried out, as where vague and generalised definitions of “capacity” are used, rather than decision-specific and graduated categories of capacities, or where the duties of substitute decision makers are not defined with sufficient detail. The analysis under the first evaluative question, “Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)?” deals with these issues.

Adequate mechanisms for the review of decisions, such as Ontario’s Consent and Capacity Board, is one aspect of legislation that is essential to the issue of implementation. In the most obvious sense, a (relatively) accessible process provides for greater opportunities for redress where the legislation has not been implemented correctly. The decisions of a specialised tribunal such as the Consent and Capacity Board also generate an important body of jurisprudence interpreting and adding meaning to the legislation, providing necessary guidance to the individuals who must implement the system. At present, only Ontario and the Yukon[125] have a process of this kind in place. In British Columbia Part 4 of the Health Care (Consent) and Care Facility Admission Act, which would have created a review board, has been repealed.

c) Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?

Court appointed guardianship

Older adults are not per se incapable and are not, of course, in need of court appointed guardians by virtue of age alone. Older adults as a group are, however, especially likely to develop a loss of capacity (as opposed to conditions present from birth that affect capacity) as a result of non-psychiatric conditions. Legislation providing for court appointment of substitute decision makers in specific situations that do not include developed loss of non-psychiatric loss of capacity ignores, in effect, the types of capacity impairment that older adults are most likely to experience. Manitoba’s Vulnerable Persons Living with a Mental Disability is legislation of this kind, excluding older adults whose impairment develops in later life. [126] Mental health legislation in the province (the Mental Health Act) [127] governs court appointment of a substitute decision maker where a person has been admitted to a mental health facility. Outside of these circumstances, two alternatives exist for the person who becomes incapable in later life: appointment of the Public Trustee (a time consuming and intrusive process) or by court order.[128] Neither include the protections provided by the legislation applying in situations less specific to/typical of older adults.

Power of attorney

Financial abuse through misuse of springing or enduring powers of attorney has been identified as a problem affecting a significant number of older adults, and is one form of “elder abuse.”[129] Responding to the needs and circumstances of older adults includes addressing and providing for abuse/misuse. At the same time, as discussed above, it has been argued that powers of attorney must remain relatively simple with minimal burdens on persons exercising powers of attorney, who will most often be family members, and should not be too onerous, or individuals will be dissuaded from using powers of attorney to plan for future, potential, incapacity. The point from Egli and Re K, however, also discussed above, describes how greater oversight and protection from misuse actually increases the accessibility of the power of attorney given the reality that many people will actually want a power of attorney at a point when their capacity is beginning to diminish.

No province requires registration of powers of attorney, identified by Lord Hoffman as an important safeguard. Legislation discussed in the section on “Elder Abuse and Exploitation” identifies legislation that deals with financial abuse, that will address this issue outside of power of attorney legislation itself.

Personal directive/representative legislation:

Legislation applying to substitute decision making in the health care context

The most significant question regarding substitute decision making in the health context, whether by personal directive or representative or in more comprehensive health care and consent legislation, is whether or not consent to care facility admittance is specifically provided for. Care facility admittance should not be considered to be subsumed within “medical treatment” or “health care” generally; for most purposes (and in the Canada Health Act) care facility residence is excluded from the definition of health care. Nevertheless, admittance to a care facility in a situation involving a substitute decision maker, a situation in which the individual may be unwilling to go, is made on the basis of a health related determination carried out by a medical professional and objectively qualifies as a “health” decision. As in Ontario’s Health Care Consent Act, admittance to a care facility should be provided specifically for in legislation applying to substitute decision making in the health care context. Because substitute care facility admittance involves significant Charter issues – section 7, and also sections 9 10, and, possibly, 12, an accessible and timely review process is essential. Only Ontario and the Yukon provide for a Review Board at this time.

At the present time, only Ontario and the Yukon[130] have legislation in place dealing with care facility admission and, specifically, the question of consent to admission. Part 3 of British Columbia’s Health Care (Consent) and Care Facility (Admission) Act[131] that would deal with care facility admissions has never been proclaimed. In the absence of legislation, the most likely procedure will be committal under mental health legislation. The criteria for care facility admission should be distinct; a separate provision is needed.

3. Identification of benchmark Canadian legislation.

“Benchmark” legislation will incorporate the “modern” approach to substitute decision making, defining capacity with reference to decision making, as opposed to mental status; recognising graduated capacities; providing that decision making embody the wishes of the incapable person, to the greatest possible extent; clearly articulating the duties and powers of the substitute decision maker; and providing for an accessible, specialist body to review decisions in a timely manner. Provisions dealing with care facility admittance where a person is no longer capable, that incorporate the factors listed above, is essential.

Applying these criteria, legislation in Ontario and in the Yukon may be identified as benchmarks.[132] Each is relatively comprehensive, and provides a coherent approach to substitute decision making across the different forms or types of substitute decision making relationships. Crucially, legislation in the Yukon and Ontario provides for a Review Board and deals specifically with the key question of substitute consent to care facility admittance, an issue with particular relevance to older adults and which involves Charter protected rights. At present, Ontario and the Yukon are the only Canadian jurisdictions to do so.

A key difference between the Ontario and Yukon legislation is Part 1 of the Yukon Act, which deals with Adult Protection. As described in more detail below, these provisions have no analogue in Ontario.

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