As is evident throughout this Final Report, legal capacity, decision-making and guardianship laws raise many difficult issues. Entangled as these laws are in the broader social contexts surrounding aging and disability, family caregiving, and delivery of health and social services, they present
challenging ethical and practical questions. They also raise issues of fundamental rights for individuals who are very frequently vulnerable or marginalized. Consultees have emphasized to the LCO the gravity of the issues at stake in reforming these laws, and the seriousness of society’s responsibility to those affected. The LCO has taken this message to heart, and has attempted to craft recommendations that respond to the circumstances of those affected and that respect and promote their rights and wellbeing.
At the same time, the LCO has recognized the constraints surrounding reform of these laws, including fiscal restraints for government and key institutions, competing needs among stakeholders, and, in a number of areas, a lack of a clear evidentiary base on which to proceed. As part of a progressive realization approach to implementation, the LCO has identified priorities for reform, recommendations which have the greatest potential to transform this area of the law. The LCO has also categorized recommendations according to the relative ease of implementation.
The LCO’s identified priorities are not necessarily the recommendations that are simplest to implement: the timeframes are not a reflection of priorities, but an acknowledgement of the challenges of reform. Institutions which are the subject of the LCO’s recommendations might choose to focus first on priority recommendations, or on first addressing more straightforward changes while working towards more challenging reforms.
A. KEY PRIORITIES
In this Final Report, the LCO has made fifty eight recommendations for reform to laws, policies and practices. A list of these recommendations, organized by topic, can be found in Appendix A.
The LCO believes the following recommendations are the highest priority:
The creation of an expert, independent, specialized tribunal able to provide flexible, accessible and timely adjudication and navigational supports in this area of the law. (Chapter 7). Many of the shortfalls in the current system arise from the inaccessibility and inflexibility of the current rights enforcement and dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA). An appropriately designed tribunal provides the most viable means of addressing these issues.
Recommendations 29 – 38 address this priority, including:
- Transferring jurisdiction over the creation, variance and termination of guardianship appointments, and of the review of accounts and provision of directions regarding powers of attorney to an expert and accessible tribunal;
- Providing this tribunal with broad jurisdiction to meaningfully address concerns, including new forms of applications;
- Expanding access to mediation and other forms of alternative dispute resolution; and
- Strengthening existing supports for applicants, including Section 3 Counsel and Legal Aid Ontario support
These reforms would not only enable more meaningful responses to widespread concerns regarding abuse and misuse of substitute decision-making powers, but would enable the application of a more tailored and limited approach to guardianship through the reforms proposed in Chapter 8 and highlighted below.
Strengthening information and education for individuals affected, families and professionals and service providers involved with legal capacity and decision- making law (Chapter 10). It is clear to the LCO that this area of the law is poorly understood. The complexity of the law makes this lack of knowledge and comprehension understandable, but in practice it leads to systemic shortfalls in the implementation of the law.
Recommendations 49 – 58 address this priority, including:
- Creation of a clear statutory mandate for coordination and development of education and information initiatives, strategies and materials, addressing the needs of persons directly affected, substitute decision-makers and supporters, professionals and service providers;
- Development of a central, coordinated clearinghouse of information for substitute decision-makers and supporters, in plain language and in a variety of accessible formats;
- Empowering adjudicators to require a guardian or person acting under a personal appointment to obtain education on specific aspects of her or his duties and responsibilities; and
- Professional educational institutions and the health regulatory colleges re-examine their requirements and curricula in this area, and consider strengthening coverage of issues related to this area of the law.
Improving the quality of assessments of capacity and promoting access to basic procedural rights for those found incapable under the Health Care Consent Act,1996 (Chapter 5). The LCO is very concerned about the widespread lack of basic procedural and quality assurance protections for individuals whose right to independently make decisions for themselves may be or has been taken away. These recommendations would improve understanding of the law among those responsible for administering assessments and providing rights information, strengthen access to the law for those found to be lacking legal capacity under the HCCA, and reduce inappropriate use of substitute decision-making under that Act.
Recommendations 10 – 24 address this priority, including:
- Creation of official Guidelines for assessments of capacity under the HCCA and MHA;
- Development of statutory minimum standards for the provision of rights information under the HCCA:
- Creation of a strategy to expand access to independent and expert advice about rights to persons found incapable under the HCCA;
- Refining the use of capacity examinations under the MHA;
- Expanding access to Capacity Assessments under the SDA;
- Strengthening oversight and supports for rights information provision through existing institutions, such as Health Quality Ontario, the Local Health Integration Networks and the monitoring and quality control systems for long-term care; and
- Monitoring and evaluating these reforms with respect to their success in administering assessments of capacity and respect for procedural
A. SPECIFIC PRIORITIES
The implementation of the recommendations for the three priorities identified above would have a transformative effect throughout this area of the law, in that addressing the priorities would have an overarching impact on this area of the law.
This initial priorities do not, however, detract from the significance of addressing concerns related to more specific issues, especially those regarding safeguards against abuse, and reducing or tailoring the use of guardianship.
Reducing or tailoring the use of guardianship (Chapters 4, 8): One of the central underlying aims of Ontario’s current laws regarding legal capacity, decision-making and guardianship is to avoid unnecessary or inappropriate intervention, and to preserve to the extent possible the autonomy of individuals whose decision-making abilities are impaired. Guardianship is intended as a last resort. In practice, however, there are significant shortfalls in Ontario’s current law, whether because of implementation challenges, or a lack of options to meet the diversity of needs among those affected by these laws.
Recommendations 3 – 9 and 40 – 46 address this priority, including:
- Incorporating and clarifying a human rights accommodation approach into the assessment of legal capacity and the responsibilities of service providers;
- Creation of statutory personal support authorizations for day-to-day, routine decisions related to property and personal care, to enable persons who can make decisions with some assistance to appoint persons to provide them with such assistance;
- Research and consultations towards the development of a statutory legal framework for network decision-making;
- Supporting decision-making practices that promote autonomy and participation;
- Strengthening the provisions of the SDA regarding the consideration of less restrictive alternatives prior to the appointment of a guardian;
- Replacing the statutory guardianship process with adjudicative processes for appointment of a guardian, in association with the implementation of the recommendations for a new tribunal;
- Strengthening opportunities for review of guardianship appointments and for the creation of time-limited appointments;
- Enabling adjudicators to make appointments for limited property guardianships where appropriate; and
- Enabling adjudicators to appoint a representative for a single decision.
Strengthening safeguards against abuse (Chapter 6): While powers of attorney provide a flexible and accessible means of planning for future needs, as private documents they are also susceptible to misuse and abuse, and indeed, concerns are rife regarding inappropriate or outright abusive use of these documents by attorneys. The LCO has proposed reforms intended to bring greater transparency and accountability to these instruments, while maintaining their simplicity and ease of use.
Recommendations 21 – 23 address this priority, including:
- Requiring persons accepting appointment under a power of attorney to sign, prior to acting under such an appointment, a Statement of Commitment that sets out their statutory responsibilities, the consequences of failure to fulfil these responsibilities, and their acceptance of these responsibilities and consequences;
- Requiring persons acting under a power of attorney to issue, at the time they begin to exercise their authority, a Notice of Attorney Acting to specified individuals;
- Creating a statutorily-based option for persons creating a power of attorney to name a monitor with responsibilities for making reasonable efforts to determine whether the appointed person is complying with the statutory requirements for that role.
C. TIMEFRAMES FOR IMPLEMENTATION OF REFORMS
Appendix B sets out the LCO’s preliminary analysis of the relative cost, complexity and difficulty of the recommendations in this Final Report. This document is best understood as the LCO’s preliminary analysis of the relative ease of implementation, rather than their impact or priority. This categorization is intended to assist policy- makers to develop an incremental, progressive approach to comprehensive reform.
Short–term recommendations include those that could be implemented immediately, or comparatively soon. They can be implemented at a relatively low cost, and either do not require legislative amendments or the necessary amendments to the legislation could be made without significantly opening up the relevant statute.
Medium–term recommendations include those that either require some investment of resources, or involve sufficient complexity that additional work would be needed to implement. Medium-term recommendations therefore cannot be implemented immediately, but should be undertaken as soon as resources or time permit.
Long–term recommendations involve challenging or novel issues. Their implementation may be predicated on the prior implementation of other recommendations or may require further research or consultation. Work towards these recommendations should begin, but with the recognition that some time may be required to identify effective approaches to implementation.