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This legislative package was substantially amended in 1996 when the Consent to Treatment Act and the Advocacy Act were repealed, the Substitute Decisions Act was amended, and the Health Care and Consent Act, 1996 was enacted.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 decis