This Chapter provides a very brief overview of the key elements of Ontario’s systems for legal capacity, decision-making and guardianship. It is not intended as a guide to the system, but rather to orient readers who may not be as familiar with this area of the law to the core elements of Ontario’s approach and how each aspect fits into the entire scheme. This Chapter concludes with a summary analysis of the strengths and weaknesses of this system. Further details of key provisions are set out in the relevant Chapters.
A. INTRODUCTION TO ONTARIO’S LEGAL FRAMEWORK FOR CAPACITY AND DECISION-MAKING LAWS
Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Three separate law reform initiatives undertaken during this time profoundly influenced Ontario’s current laws:
- The Committee on the Enquiry on Mental Competency (1990) (“Weisstub Enquiry”) was given the task of developing a set of recommended standards for determining the mental competence of individuals to make decisions about health care, management of financial affairs and appointment of a substitute decision-maker: the Final Report concluded that the process for testing legal capacity must respect both the principle of autonomy and that of best interests, as well as reflecting the importance of proportionality, administrative simplicity and relevance.[15]
- The Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (1987) (“Fram Committee”) was appointed by the Attorney General to “review all aspects of the law governing, and related to, substitute decision making for mentally incapacitated persons and to recommend revision of this law where appropriate”,[16] and its Final Report (“the Fram Report”) identified as underlying values for this area of the law freedom from unnecessary intervention; self-determination; and community living through access to support. [17]
- The Review of Advocacy for Vulnerable Adults (1987) (“the O’Sullivan Report”), while ultimately having a more limited legislative impact, identified a number of important goals associated with this area of the law, including, among others, providing safeguards against unnecessary guardianship; promoting independence; encouraging self-advocacy (self-determination) where possible; enhancing the role of family and friends; and educating, delabeling and destigmatizing.[18]
Ontario’s resulting statutory framework for legal capacity, decision-making and guardianship is complex, extensive, intricate and nuanced. At its core are two statutes:
- The Substitute Decisions Act, 1992 (SDA), which addresses decisions related to property management and personal care, and identifies the appointment processes and the duties of guardians and those acting under powers of attorney (POA), and
- The Health Care Consent Act, 1996 (HCCA), which addresses consent to treatment, admission to long-term care homes and personal assistance services for residents of long-term care homes.
In addition, the Mental Health Act (MHA) addresses examinations of capacity to manage property upon admission to or discharge from a psychiatric facility. There are other laws related to legal capacity which are not addressed in this project, including those related to access to personal health information and the common law. Although the project focuses on this particular area of the law, of course laws related to legal capacity and decision-making must be understood within the broader context of laws related to health services, long-term and community care, elder abuse, income support programs and others.
It is important to keep in mind that these laws are administered through a complex array of public and private institutions, all across the province.
For example, there are at least seven provincial ministries or institutions involved in delivering this legislation, including the Ministry of the Attorney General, the Ministry of Health and Long-Term Care, the Ontario Seniors Secretariat, the Ministry of Community and Social Services, the Public Guardian and Trustee (PGT), the Consent and Capacity Board (CCB) and the Superior Court of Justice.
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. The complexity of implementation adds immensely to the complexity of the laws themselves.
The complexity of this legal framework and its administration has important implications for this project.
B. KEY ASSUMPTIONS AND POLICY CHOICES
Ontario’s legal framework for legal capacity, decision-making and guardianship is premised on several key policy choices. These choices underpin the legislative regime and many of the policies and practices within it.
First, Ontario’s approach to legal capacity is functional and cognitive. This approach emphasizes the ability to make a specific decision or type of decision, evaluating the ability of the individual to understand, retain and evaluate information relevant to a decision. The focus is on the functional requirements of a particular decision, not a medical diagnosis, the probable outcome of the person’s decisions, or an abstract assessment of abilities. Tests for legal capacity are based on the ability to understand and appreciate the information relevant to a particular decision or type of decision, and the consequences of making that decision (or of not making a decision).
Determinations of legal capacity are domain or decision-specific, recognizing that a person can have the ability to make some decisions and not others. There are specific tests of capacity for different types of decisions. It is also understood that the ability to understand and appreciate may vary over time.
Second, the legislation codifies a clear presumption of capacity for the ability to contract, make decisions about personal care, and to make decisions about treatment, admission to long-term care and personal assistance services.19 Legal capacity in these areas can only be removed through specific mechanisms outlined in the legislation: these mechanisms differ for these decision-making areas, in part because treatment and admission to long-term care involve the provision of necessary services for which the provider has an affirmative duty to obtain consent.20
Third, there is an emphasis on procedural rights. For example, individuals examined for capacity to manage property under the MHA are entitled to rights advice.
Capacity assessors must explain the purpose and significance of an assessment, and the individual has the right to refuse the assessment. Determinations of capacity may be reviewed by the CCB; as well, the affected individual may request a fresh assessment on a regular basis. Both the SDA and the HCCA include provisions for the appointment of counsel for persons whose legal capacity is at issue.21
Fourth, there is a core focus on protecting self-determination to the degree possible. Powers of attorney aim to enable individuals, not only to choose their own substitute decision-maker, but to tailor the powers granted and to express wishes as to how those powers will be exercised. Substitute decision-makers are, in most circumstances, required to encourage participation in decision-making and to take into account the values and wishes of those for whom they are acting. Courts are not to appoint a guardian without considering whether a less restrictive alternative is available.
Finally, there is a clear preference for the private realm. Ontario’s statutory regime encourages the use of family and friends as substitute decision-makers. The SDA makes powers of attorney relatively simple and inexpensive to create and to exercise, while the HCCA uses a hierarchical list of appointees, with the PGT acting only if no individual identified through that list is capable, of appropriate age, available and willing. While the MHA automatically creates a property guardianship by the PGT for incapable persons without a valid power of attorney, it also provides what was intended to be a relatively simple and inexpensive mechanism under the SDA through which family members can replace the PGT as guardians.
All of this must be understood in the context of policy choices in related areas, including decisions not to implement adult protection or broad based mandatory reporting requirements with respect to abuse of adults, and the new approaches to developmental services arising from the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008.
C. IMPORTANT LEGAL PROCEDURES AND INSTITUTIONS
This section summarizes the major legal procedures and institutions involved in this area.
1. Statutory Mechanisms to Assess Capacity
Ontario has an extremely elaborate system for assessing legal capacity, in part deriving from its domain specific approach to capacity. In other words, Ontario’s system for determining l