This Chapter reviews Ontario’s commitments to persons with mental disabilities beyond the statutory provisions of the SDA. Ontario’s commitments are rooted in foundational human rights documents that are important to formulating options for reform because they shape and constrain Ontario’s laws and policies. The most important of the domestic laws are the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code (Code), and the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). The most significant international document is the Convention on the Rights of Persons with Disabilities (CRPD). They are very briefly described below.
Also described below are service providers that the Government of Ontario has mandated to administer supports to persons with mental disabilities. There are many types of government assistance. This Chapter focuses on select service providers who assist adults with diminished capacity for financial management, either as a necessary consequence of supports, such as ODSP payments, or as their core business. The service providers reviewed here are the OPGT, Consent and Capacity Board, Ontario Disability Support Program and the Community and Developmental Services Branch of the Ministry of Community and Social Services (MCSS). Throughout the discussion paper, the LCO considers the potential roles that existing service providers could play as a cost-effective means to build on what has been done.
B. Foundational Human Rights Documents
1. Canadian Charter of Rights and Freedoms
Ontario’s laws affecting adults with mental disabilities are subject to the Charter, which guarantees rights and fundamental freedoms under the Constitution Act, 1867. Section 15 of the Charter guarantees the right to equality before and under the law, and to equal protection and benefit of the law, without discrimination based on, among other grounds, age and mental disability. Section 15(2) protects laws, programs or activities that have as their object the improvement of conditions for individuals or groups that have experienced disadvantage on the same grounds. The Charter’s equality rights provisions have been very important in advancing the rights of persons with disabilities, articulating the right to inclusion and participation, and advancing the principle of accommodation.
The Charter applies to government activity, including legislation and policies, and requires Ontario to provide reasonable accommodations to address inequality for persons with mental disabilities up to the point of undue hardship. The provision of these reasonable accommodations must be individualized and tailored to a person’s special needs. The Supreme Court of Canada has recognized that the duty to accommodate can include positive measures to overcome barriers to the equal access to benefits. However, the government’s obligation may not always include the creation of new benefits, which is different from ensuring that benefits that have already been awarded are accessed in a non-discriminatory manner. Lana Kerzner has argued that the Charter could be interpreted as guaranteeing rights to accommodations and supports for adults who have diminished capacity to make decisions. However, issues of capacity have not yet been considered in the Charter jurisprudence.
2. Ontario Human Rights Code
The Ontario Human Rights Code protects persons from discrimination in the public and private sectors. The Ontario Human Rights Commission’s (OHRC) Policy and Guidelines on Disability and the Duty to Accommodate sets standards for how the Code should be interpreted for persons with disabilities. It provides guidance on the duty to accommodate to individuals, employers, service providers and policy-makers based on principles of dignity, individualized accommodation, and integration and full participation. The duty to accommodate under the Code only applies to the point of undue hardship. It clearly includes “positive steps needed to ensure equal participation for those who have experienced historical disadvantage and exclusion from society’s benefits”. How the Code impacts issues of capacity and legal representation is, however, unclear.
The OHRC is developing a policy on human rights, mental health and addictions, and has released a report of findings on its initial province-wide consultations, Minds that Matter: Report on the Consultation on Human Rights, Mental Health and Addictions. Among other topics, the report addresses how income supports, such as ODSP, can create barriers for persons with psychiatric disabilities as a result of their design, policies, procedures, and decision-making processes. The types of accommodations that the OHRC suggests might be required to respond to these barriers include “facilitating or providing support for decision-making”. No further direction is provided as to how this might be achieved.
The Human Rights Tribunal of Ontario has dealt with issues of capacity and representation in the context of its proceedings. The decision in Kacan v. Ontario Public Service Employees Union, affirms that a claimant may personally appoint an “applicant” to act on his or her behalf as a less intrusive alternative to a litigation guardian. The HRTO noted that the purpose of these appointments is to “promote accessibility”, and made reference to principles of self-determination, minimal interference, autonomy and dignity in discussing concepts of capacity. The HRTO also made important findings about the roles and responsibilities of representatives and safeguards against abuse. With respect to safeguards, the HRTO stated that the existence of a relationship of “power-dependency” places a fiduciary duty on the representative, and that the HRTO can exercise its powers to remove him or her where there is a conflict of interest or to ensure competent representation. In terms of the roles and responsibilities of a representative, it held,
Where appropriate, decisions should be made by the applicant together with the claimant and with respect for his or her wishes…However, the section provides for a general delegation of the power to conduct the application, and the person bringing the application on the claimant’s behalf takes on the obligations of the applicant under the Tribunal’s process.
3. Accessibility for Ontarians with Disabilities Act
The purpose of the AODA is to direct the development, implementation and enforcement of accessibility standards in order to achieve accessibility for Ontarians with disabilities. The AODA aims to systematically remove barriers for persons with disabilities with respect to goods, services, facilities, accommodations, employment, buildings, structures and premises by 2025. The AODA does not apply to federally regulated organizations, such as banks. However, it does apply to provincially regulated financial institutions. The AODA applies to the Government of Ontario.
The relationship of the AODA to issues of capacity and legal representation is not yet known. However, financial literacy supports could be important to adults with diminished capacity seeking to access the RDSP, and the Information and Communication Standards require that, upon request, organizations arrange for the provision of information in accessible formats and communication supports for persons with disabilities. The Accessibility Standards for Customer Service also require service providers to use reasonable efforts to ensure that policies, practices and procedures are consistent with core principles of dignity, independence, integration and equal opportunity.
4. Convention on the Rights of Persons with Disabilities
The CRPD came into force in 2008 as the first international human rights treaty to comprehensively address the rights of persons with disabilities. The purpose of the CRPD is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. This purpose guides the remainder of the CRPD, which takes a distinct approach to eliminating discrimination according to the social model of disability and human rights duty to accommodate.
Canada has ratified the CRPD and, subject to the Declaration and Reservation it has submitted, Canada is bound to “undertake…to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the [CRPD]”. There was extensive collaboration between Canada’s federal, and provincial and territorial jurisdictions during the CRPD negotiations and the Declaration and Reservation may clarify how the treaty could be implemented in Ontario. In Canada, the implementation of international treaties is complicated by the division of powers between the federal and provincial or territorial governments. Whereas the federal government negotiates international agreements on behalf of the country as a whole, the provinces and territories are often charged with the task of implementing them. As noted above, the issue of capacity traditionally falls within the jurisdiction of the provinces and territories. Canada’s Declaration and Reservation states that it interprets the CRPD “as accommodating the situation of federal states where the implementation of the Convention will occur at more than one level of government and through a variety of mechanisms, including existing ones”.
The General Principles of the CRPD recognize a nuanced consideration of social needs and values that respect “inherent dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons” as well as “participation and inclusion in society”, “human diversity”, and “accessibility” through the “elimination of obstacles and barriers”. In implementing those principles, governments are required to use “universal design” as well as “meet the specific needs of a person with disabilities” and “ensure that reasonable accommodation is provided”. The CRPD also includes positive rights to the enjoyment of liberty; “to live in the community, with equal choices to others”; and to develop “mental and physical abilities, to their fullest potential”.
The term “legal capacity” is used explicitly in the CPRD. Article 12 guarantees persons with disabilities the enjoyment of “legal capacity on an equal basis with other in all aspects of life”. However, legal capacity is not defined in the CRPD and the scope of its guarantee was one of the more contentious issues that was negotiated. Member States were unable to reach agreement on what the term means, and their Declarations and Reservations submitted since the treaty’s adoption show that governments intend to implement Article 12 in different ways.
The debates surrounding Article 12 merit a full review that cannot be provided here. The main point of dissent concerns whether the CRPD recognizes an inalienable and non-derogable right for persons with disabilities to be considered legally capable at all times, or whether it protects them from discriminatory determinations of incapacity based on disability status. The consequences arising from these two interpretations would be quite different for the Ontario government. In the first instance, incapacity could not be used as a trigger to protect vulnerable persons from the risk of harm and substitute decision-making would be eliminated. A person would retain the ultimate legal authority to make decisions in all circumstances and the receipt of supports would be premised on consent. In the second instance, governments would be required to design and apply capacity laws in a non-discriminatory manner. It is unclear what this would entail. Interpreted in the context of the CRPD’s other provisions, it could possibly include a duty to accommodate, supportive measures and addressing laws that have a disproportionate effect on persons with disabilities.
Canada’s Declaration and Reservation on the CRPD states that “Canada recognizes that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”. It declares Canada’s understanding that Article 12 permits substitute decision-making arrangements as well as those based on the provision of supports “in appropriate circumstances and in accordance with the law”. With respect to substitute decision-making arrangements, specifically, Canada has reserved the right “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”. The CRPD’s General Principles and enumerated rights, mentioned above, give some indication of Canada’s basic responsibilities in this regard. Additionally, Article 12 places an obligation on governments to ensure access to supports that persons “may require in exercising their legal capacity”. It lists specific equality rights that governments must ensure, including controlling financial affairs. Article 12 of the CRPD also requires governments to ensure the “measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review….”
C. Substitute Decision-Making Supports
1. The Office of the Public Guardian and Trustee
The OPGT delivers a range of services that are essential to educate members of the public about decision-making laws and procedures, support the smooth administration of substitute decision-making arrangements, and protect the interests of persons with diminished capacity from neglect and abuse. The OPGT is a “public safety net” that “manages the financial affairs of incapable people who have no one else who is authorized to do so”. It serves as a guardian of property exclusively for adults who are determined to be incapable under the SDA. The OPGT also has a mandate to safeguard adults who may be incapable of protecting themselves against harm through a number of avenues, including screening applications to replace the OPGT, conducting investigations and reviewing private guardians’ and attorneys’ accounts.
One of the services that the OPGT has delivered as a guardian of property has been to apply for the RDSP on behalf of its clients. The OPGT has also played an important role in RDSP policy development by working “with staff in the Federal and Provincial Governments as well as major financial institutions to create an efficient process to open and contribute to RDSPs for [its] eligible clients”. 
2. Consent and Capacity Board
The CCB is in independent tribunal with a mandate to hear and decide matters related to capacity and substitute decision-making, among other issues. The CCB reviews findings of incapacity in various areas of decision-making, including property management. It considers the appointment, amendment and termination of representatives to make decisions for incapable persons in the area of health care. It also gives directions on disputed decisions and reviews “a substitute decision-maker’s compliance with the rules for substitute decision-making”. Consequently, the CCB has specialized expertise with respect to applying a tribunal process to the appointment of a substitute decision-maker as well as the termination or amendment of the appointment.
In 2011, the CCB had 129 members consisting of lawyers, psychiatrists and public members, as well as a staff complement of 12 persons who assist CCB members. The CCB’s authority to hold hearings arises under several statutes, including the SDA, and is based on its broad jurisdiction to decide matters where the safety of the individual, interests of the community, and dignity and autonomy of the individual are at stake. The CCB also functions under a Memorandum of Understanding with the Minister and Deputy Minister of Health and Long-Term Care, and it develops its own Rules of Practice. Legislated performance measures ensure that hearings operate expediently across the province. The CCB currently faces serious resource constraints. According to the Board’s annual reports the CCB is running a deficit of approximately $1 million per year.
The CCB’s jurisdiction as an administrative tribunal with expertise relevant to this project is considered in Chapter VI, Options for Reform.
D. Income Support and Social Benefits
1. Ontario Disability Support Program and Ontario Works
Chapter II.A reviewed the Ontario Disability Support Program in part. ODSP provides income support and employment support to enable persons with disabilities and their families to live as independently as possible in their communities. ODSP provides a basic needs amount to help with the cost of food, clothing and other necessary personal items. The amount provided is based on family size and composition. ODSP also provides an amount for shelter based on actual costs up to a maximum set according to family size. Health and non-health related benefits may be provided. Ontario Works (OW) provides financial and employment assistance to help people move towards paid employment and independence. Ontario Works also provides health and non-health related benefits to recipients. ODSP is delivered provincially, while Ontario Works is delivered by the municipalities and by First Nations.
ODSP and OW each have a statutory framework for the appointment of a representative to receive and manage payments on behalf of recipients who are using or are likely to use their income support or financial assistance in a way that is not for the benefit of a member of the benefit unit. This so-called “trusteeship” process is reviewed in Chapter V.B as one example of an alternative to guardianship under the SDA that is limited to decision-making for ODSP or OW payments.
2. Community and Developmental Services
The Ministry of Community and Social Services funds services and supports for adults with a developmental disability and their families. The Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 (SIPDDA) was enacted in 2008 to create services and supports that address the unique needs of persons with developmental disabilities. SIPDDA is consistent with recent reforms, which have increasingly tended toward establishing delivery mechanisms that empower persons to choose the supports that they need for themselves. It is intended to shift the sector away from institutionalized care and towards inclusion, and a “system of services and supports that will enable people with intellectual disabilities to exercise more independence, have greater decision-making power over their day-to-day lives, and ultimately live as full citizens in communities of their choosing”. Services and supports that can be funded under SIPDDA include those that help with activities of daily living, community participation, residential services, caregiving respite and others.
Apart from developmental services, MCSS is responsible for administering ODSP and funding certain programs for vulnerable adults, like persons living with a sensory disability, through the general funding authority for grants and agreements under the Ministry of Community and Social Services Act. The Government of Ontario has indicated that MCSS and “other ministries will work with community partners to promote RDSPs and encourage ODSP recipients and other people with disabilities to establish RDSPs”.
QUESTION FOR DISCUSSION
5. How do Ontario’s commitments to adults with mental disabilities affect the need and options for reform in this project?
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