A. INTRODUCTION

At any given time, laws regarding legal capacity, decision-making and guardianship affect tens of thousands of Ontarians. Persons directly affected by these laws may be living in long-term care homes, retirement homes, group homes, hospitals, psychiatric facilities or the community. Those affected may have temporary acute illnesses or chronic conditions. They may be living with addictions, mental health disabilities, acquired brain injuries, dementia, aphasia, developmental or intellectual disabilities, or many other types of disabilities.

These laws also affect tens of thousands of families and caregivers, as well as thousands of professionals, service providers, and institutions, financial institutions, health and social service professionals, hospitals and retirement homes, lawyers, governments, countless community agencies, and many others.

Most Ontarians will, at some point in their personal or professional lives, encounter this area of the law.

This Final Report concludes an extensive, multi-year Law Commission of Ontario (LCO) project reviewing Ontario’s statutory framework for legal capacity, decisionmaking and guardianship. The project has examined issues related to concepts of legal capacity and decision-making, the use and misuse of powers of attorney, and appointment and dispute resolution processes, among other issues. It builds on the principles and considerations identified in the LCO’s two Frameworks for the law as it affects older adults and the law as it affects persons with disabilities,1 as well as taking
into account what was learned from the project on Capacity and Legal Representation for the Federal RDSP.2 The LCO has brought to this project its holistic, multidisciplinary approach to law reform, and its commitment to open and transparent processes and to broad public consultation.

This report is the culmination of the most comprehensive process in the LCO’s history. The project began with wide-ranging scoping interviews in early 2013 and the commissioning of several expert papers. In June 2014, the LCO released a comprehensive Discussion Paper3 and Summary of Consultation Issues.4 The subsequent public consultations allowed us to hear from hundreds of Ontarians, including private individuals, experts and institutional stakeholders. In January 2016, we released for feedback an Interim Report5 with draft recommendations.

Ontario has a comprehensive and relatively coordinated statutory scheme related to legal capacity and decision-making, resulting from a thorough and thoughtful law reform process in the late 1980s and early 1990s.6 The foundations underlying the current law, of maximizing autonomy and reducing intervention, empowering families, and providing a “safety net” against exploitation and abuse of persons with impaired decision-making abilities, remain largely sound. However, much has changed since these laws came into effect, including evolving understandings of legal needs and of the rights of persons with disabilities and older persons, substantial social and demographic changes, and an ever more complex service delivery landscape. The LCO’s work revealed significant challenges in ensuring effective access to the law, providing a wide enough range of options to meet the diverse needs of those directly affected, and providing coordinated approaches across the system.

The LCO’s approach to reform has focussed on promoting the principles underlying the Framework projects, recognizing the diversity of needs and experiences among those directly affected and among stakeholders, acknowledging and responding to complexity, and building on the strengths of Ontario’s existing laws, policies and institutions. The central priorities for reform have been reducing unnecessary and inappropriate intervention in the lives of individuals, improving access to the law, and enhancing the clarity and coordination of the law. These priorities are advanced through 58 recommendations which would, if implemented, widen the range of options available to individuals, promote access to education and information, strengthen safeguards against abuse, enhance procedural protections, and support more meaningful rights enforcement and dispute resolution. The LCO believes that this approach builds on the strengths of the current system while responding to contemporary needs, and provides a strong foundation for the ongoing evolution of this area of the law.

The LCO’s review of Ontario’s statutory regime for legal capacity, decision-making and guardianship has raised many challenging issues for which there are no straightforward solutions. While consultations have indicated broad support for the general thrust of the LCO’s approach, it is inevitable that not all will agree with all recommendations. The LCO believes that these recommendations strike a careful balance between competing needs and perspectives and would significantly enhance the ability of Ontario’s legal framework in this area to maximize self-determination, provide safeguards for those who are vulnerable, and provide effective and meaningful options for the diverse array of individuals and stakeholders who encounter it every day.

B.  SCOPE, NEEDS AND PRIORITIES FOR REFORM

1.  Project Scope

The project addresses the following six issues:

  1. The standard for legal capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the Substitute Decisions Act, 1992 (SDA), Health Care Consent Act, 1996 (HCCA) and Mental Health Act (MHA);
  2. Decision–making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
  3. Processes for appointments (for example, of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
  4. The roles and responsibilities of guardians and other substitute decision- makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
  5. Monitoring, accountability and prevention of abuse for substitute decision- makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
  6. Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.

The scope of this project was determined through the LCO’s preliminary research and consultations. The focus is on the provisions of the Health Care Consent Act, 1996 (HCCA),7 Substitute Decisions Act, 1992 (SDA)8 and Part III of the Mental Health Act (MHA)9 dealing with examinations of capacity to manage property upon admission to a psychiatric facility. The LCO is not making recommendations about the common law of capacity and consent,10 capacity to consent under privacy law11 or consent to research, or broader aspects of the MHA such as community treatment orders. Nor does the project address issues such as the extra-judicial recognition of powers of attorney, or the ability of an attorney under a power of attorney to make a beneficiary designation.

This is not a reflection on the importance of the issues not addressed: they are of considerable practical significance to many Ontarians. Given the breadth of the issues, the LCO has focused on those with broad general implications for the statutory scheme as a whole, which were also pressingly identified by stakeholders, and which were not being addressed by other bodies.

Importantly, as was briefly noted above, this project grew out of the LCO’s two Framework projects on the law as it affects older persons and the law as it affects persons with disabilities, which were completed in 2012.12 The adoption of the Frameworks as the starting point of this project and as its analytical foundation has substantially shaped the approach to and results of this project. Chapter 3 will discuss the implications of the Frameworks for this project and for this area of the law.

During the timeframe of this project, the LCO also undertook, at the request of the Ontario government, an independent review of how adults with disabilities might be better enabled to participate in the federal Registered Disability Savings Plan (RDSP). The resultant LCO project, Capacity and Legal Representation for the Federal RDSP, recommended the creation of a streamlined Ontario process to appoint a legal representative for adults who are eligible for an RDSP but who are unable to establish a plan due to concerns about their legal capacity.13

2.  Needs and Priorities for Reform

The LCO’s extensive consultations and research identified both strengths and weaknesses within the current legal framework. Notably, the LCO believes that the values and priorities that underlay the law reform efforts of the 1990s remain relevant and that in most respects, the current laws retain broad appeal and support. The LCO has further concluded, however, that there are three broad areas of potential reforms that should be addressed to ensure the system meets the contemporary needs of individuals, families, service providers and institutions in Ontario today.

1.  Reducing unnecessary and inappropriate intervention

Building on the influential recommendations in the 1987 Fram Report,14 the current legislation contains many provisions specifically intended to advance the autonomy and self-determination of those who fall within its scope. These include specific presumptions of capacity, and an emphasis on decision-specific approaches to capacity; the provision of procedural rights to persons affected, such as rights advice and information and the right to refuse an assessment under the SDA; the inclusion of requirements to consider the least restrictive alternative in court-appointed guardianships; and others.

The LCO has concluded that the objectives and general framework of the current legislative framework is sound. Experience has demonstrated, however, that for a variety of reasons, individuals continue to be subject to unnecessary restrictions on their autonomy. Issues include lack of understanding of the law on the part of individuals, families and service providers; inflexibility of guardianship processes; challenges in implementation of existing safeguards against unnecessary intervention; lack of accessible means of asserting rights under the SDA; and an approach to legal capacity and decision-making that is at times overly binary.

The LCO is recommending several initiatives that would reduce unnecessary interventions, including:

  • clarifying the application of the duty to accommodate to legal capacity and decision-making;
  • providing options beyond substitute decision-making in appropriate circumstances;
  • clarifying the duties of substitute decision-makers to consider the values and life goals of those for whom they make decisions, and providing them with better information about their responsibilities;
  • increasing the powers of adjudicators to explore less restrictive alternatives and to tailor guardianship orders to the needs of the affected individuals; and
  • increasing the accessibility and responsiveness of the external appointments pro

2.  Improving access to the law

During the LCO’s public consultations, there was broad concern that many positive aspects of the current law are having only limited benefit, as a result of shortfalls in access to the law. Individuals who are directly affected by the law and their families may face significant difficulties in understanding, accessing and enforcing their rights. Problems include a lack of awareness of the law among those directly affected and their families; a lack of meaningful oversight and monitoring mechanisms; and inaccessible or inadequate dispute resolution and rights enforcement mechanisms.

The LCO is recommending several initiatives that would improve access to the law for individuals directly affected and for families including:

  • strengthening rights information provisions under the HCCA, to provide greater assurance that individuals who are found to be legally incapable under this Act are informed about their legal status and the available remedies;
  • improving oversight and monitoring of assessments of capacity and rights information processes under the HCCA;
  • improving access to reliable and consistent information about rights and recourse for all stakeholders;
  • increasing monitoring of the activities of those acting under personal appointments;
  • reforming the mechanisms for enforcing rights and resolving disputes under the SDA; and
  • monitoring the effectiveness of any reforms that the government enact

3.  Making the law clearer, more consistent, and easier to navigate

Ontario’s laws are highly complex, and are implemented through many different institutions and systems. There are, for example, multiple mechanisms for assessing legal capacity, depending on the type of decision and the context, with the result that not only individuals but even service providers and professionals carrying out assessments may be confused as to the correct route in a particular circumstance.

Further, the purposes and standards for implementing the law are unclear in a number of areas, so that those who must apply the law may be confused as to their responsibilities, and implementation may vary considerably between contexts or service providers. Finally, while responsibility for implementing the legislation is dispersed among multiple ministries, institutions and professions, there is no body or mechanism that has the responsibility or the capacity to coordinate these various activities to ensure that they operate effectively and as intended. For example, the legislation does not confer any particular institution with responsibility for providing information and education about the law. While many organizations have undertaken considerable efforts to address the needs, there is no means of tracking what has been done and where needs remain, providing that information and education is accurate and appropriate, or identifying and building on good programs and practices in this area.

The LCO is recommending several initiatives that would that would make the law clearer, more consistent, and easier to navigate, including:

  • developing clear basic standards and principles for assessments of capacity and rights information under the HCCA;
  • identifying statutory responsibility for the provision of specified elements of education and information in this area, together with the development of centralized, accessible and reliable resources for those affected by this area of the law; and
  • clarifying principles, purposes and terminology for this area of the law.

C.  THE PROJECT PROCESS

Reflecting the importance of these laws, the complexity of the issues, and the potential impact of reforms on Ontarians, this has been the largest project in the history of the LCO, involving the most extensive outreach and consultations.

Important steps and milestones in this project include:

  • Preliminary Consultations and Project Scoping: Work on this project began early in 2013, with a process of preliminary consultations and research. During this phase, the LCO spoke with approximately 70 individuals and organizations, so as to understand how the law was currently operating, the priorities for reform, and other projects underway which might affect this project.

 

  • Project Advisory Group: In 2013, the LCO created a project Advisory Group to provide expertise on the subject matter of this project, as well as extensive assistance with outreach and public consultation strategies and execution. The work of the project Advisory Group has been extremely valuable, and the LCO is very grateful for the considerable time and thoughtfulness that these individuals have devoted to this project. The members of the project Advisory Group are listed at the front of this Final Report.

 

  • Expert Papers: During 2013, the LCO conducted wide-ranging research, as well as commissioning a number of expert papers on a variety of topics that are listed in Appendix C.

 

  • Public Consultations: Based on this research and the preliminary consultations, and with the input of the Advisory Group, the LCO developed a comprehensive Discussion Paper, which was released in late June This was accompanied by a much shorter and simplified Summary of Consultation Issues. These documents are available at http://www.lco-cdo.org/en/capacity-guardianship. Through the late summer and fall of 2014, the LCO conducted extensive public consultations on the issues raised in the Discussion Paper and Summary:

 

  • Written Submissions: The LCO received 16 formal written submissions, most of which were lengthy documents dealing in-depth with particular reform option The LCO also received a significant number of written communications from individuals with personal experience, whether as persons directly affected by or family members navigating the law.

 

  • Consultation Questionnaires: The LCO developed two consultation questionnaires as a way to provide additional opportunities for individuals to share their experiences and aspirations for chan There were two questionnaires: one for individuals who receive assistance with decision-making, and another for family members, friends and others who provide assistance with decision-making. Copies of the consultation questionnaires are included in Appendix F. These questionnaires were available on the LCO website and in multiple formats, and the LCO worked with a wide range of community partners to distribute them to interested communities.

 

The LCO received 109 questionnaires from those receiving assistance of some form with their decision-making needs. Of this group, most were older adults, with 36 per cent of respondents age 85 or older, 45 per cent between the ages of 65 and 84, and the remaining 19 per cent under the age of 65. Women made up 67 per cent of the respondents. The LCO also received 103 questionnaires from individuals providing assistance with respect to decision-making. Of this group, the majority at 55 per cent either did not have a legal document or could not identify it if they had it. Of those that did have a legal document and could identify it, almost half had a power of attorney (48 per cent). The vast majority of respondents to this survey – 78 per cent – were female, and a slight majority of 54 per cent were living with the person for whom they provided decision-making assistance. Most (62 per cent of respondents) were acting for an adult child.

  • Focus Groups: The LCO conducted thirty focus groups in a number of locations in Ontario. Most were developed through partnerships with a wide range of institutions and professional and community organization These focus groups brought together small groups of individuals (up to 15 participants per session) with a shared experience or expertise for in-depth discussions of experiences with the law and options for reform. The LCO heard from distinct and divergent perspectives and experiences through the focus groups, including from individuals directly affected by the law, family members, and professionals, experts and service providers, including ethicists, Community Care Access Centre staff, government, judiciary, community and advocacy organizations, clinicians, lawyers, social service providers and others. A complete list of the focus groups can be found in Appendix D.

 

  • Consultation Interviews: In the late fall and early winter of 2015-2016, the LCO conducted a series of 24 in-depth These included interviews with long-term care home providers, service providers, francophones, northerners, experts and others.

 

  • Consultation Forum: On October 31, 2014, the LCO hosted a full-day consultation forum, bringing together persons with diverse experiences and expertise to work in small groups to identify principles, purposes and priorities for reform, and to consider how law reform in this area can accommodate widely differing experiences and need

Interim Report: In January 2016, the LCO released an Interim Report which set out the LCO’s analysis of the issues based on public consultations and research, together with draft recommendations for changes to law, policy and practice to address the identified priorities for reform. This Interim Report was widely circulated for feedback. The LCO received 19 formal written submissions, held five focus groups, and conducted formal interviews with several individuals. As well, the City of Toronto organized a stakeholder forum, which was attended by over 65 individuals representing a range of service providers. The LCO also held less formal discussions with a variety of organizations and individuals. The feedback period closed on March 4, 2016.

All told, the LCO has heard directly from close to 800 individuals and organizations, many of whom engaged substantively with the LCO throughout the life of the project. A list of professionals and organizations consulted can be found in Appendix C. As well, the LCO conducted approximately 30 public presentations on this project, in this way reaching hundreds more individuals.

It is not possible within the span of this Final Report to explicitly reflect all that has been heard through this extensive process, although we have provided illustrations of what we have heard. We have given careful consideration to all the perspectives brought forward, and our analysis and recommendations have been fundamentally shaped by this process. The LCO thanks all those who generously gave of their time to assist us in understanding how the law currently works, challenges in the law and its implementation, the priorities and principles for change, and the options for reforms. These issues are difficult, and as they profoundly shape the lives they affect, they are also often painful. The LCO appreciates the willingness of so many individuals to share their struggles with us. We are deeply aware of that this area of the law often affects individuals who are often already facing many challenges.

D.  THE FINAL REPORT

This Report is the culmination of a project that has examined the law of capacity, decision-making and guardianship as a whole. Many of the issues addressed in this Report could have been the subject of projects in themselves. However, the adoption of this broad approach has allowed us to understand and take into account the complex interactions between the many aspects of this area of the law. This is a significant contribution to the discussion. However, the scope and ambition of the project mean that the Report is necessarily lengthy.

As well, the Report is intended not only to identify solutions to current issues, but to provide an authoritative resource on these laws, and to reflect the complexity of their implementation. In particular, the LCO has been privileged to hear from hundreds of Ontarians about their experiences with and views on these laws: this Report records and shares this expertise.

This Report is not intended to repeat the material set out in the LCO’s earlier Discussion Paper. For those looking for a description of the current law, or a broad survey of comparable laws, for example, such material may be found in the Discussion Paper. This Final Report sets out the LCO’s analysis of the issues, based on public consultations and research, together with recommendations for changes to law, policy and practice to address the identified priorities for reform. It was approved by the LCO Board of Governors on November 2, 2016.

The Final Report is structured around key issues for reform, rather than according to the existing statutory framework.

Chapter 2 provides a brief overview of Ontario’s approach to legal capacity, decision- making and guardianship, including highlighting the strengths and weaknesses of Ontario’s laws.

Chapter 3 briefly describes the LCO’s Frameworks and considers their application to this area of the law.

Chapter 4 considers concepts of legal capacity and approaches to decision-making, and in particular discusses opportunities for integrating supported decision-making into Ontario’s legal framework, and means for promoting attention to the voices of persons with impaired decision-making abilities within current decision-making approaches.

Chapter 5 examines Ontario’s four formal mechanisms for assessing legal capacity: assessments of capacity to consent to treatment, evaluations of capacity to consent to admission to long-term care or for personal assistance services, examinations of capacity to manage property under the MHA, and Capacity Assessments for property management and personal care under the SDA.

Chapter 6 reviews concerns related to lack of accountability and transparency in appointment processes for powers of attorney and proposes reforms.

Chapter 7 addresses shortcomings in Ontario’s available mechanisms for enforcing rights and resolving disputes in this area of the law.

Chapter 8 sets out reforms to guardianship appointment processes aimed to increase the flexibility of these processes and reduce unnecessary intervention.

Chapter 9 considers new roles for professionals and community agencies in expanding options for substitute decision-making.

Chapter 10 highlights the importance of education and information in the functioning of Ontario’s laws for legal capacity, decision-making and guardianship, and identifies reforms to strengthen understanding of the law and develop skills for its appropriate implementation.

Chapter 11 briefly discusses priorities and timeframes for implementation of the recommendations.

Each of Chapters 3 through 10 provides a brief overview of the key elements of the current law, outlines areas of concern identified through research and public consultation, considers the application of the Frameworks to these concerns, highlights the LCO’s approach to reform, and proposes recommendations for reform. At the end of each Chapter, a brief summary of the recommendations is provided.