A. INTRODUCTION

The legal concept of “capacity” is central to the law related to decision- making, serving as both its rationale and the threshold for its application. Generally, persons who are considered to have legal capacity are entitled to make decisions for themselves and are held responsible for those decisions,

including decisions that others may consider reckless or unwise. On the other hand, persons who have been determined to lack legal capacity in a particular domain or for a particular decision may lose the right to make decisions for themselves independently in that area: others will be responsible for making decisions on their behalf, and can in law be held accountable for how those decisions are made.

Legal capacity has been defined in different ways at different times and for different purposes.

  • At some times and in some jurisdictions, it has been tied to the diagnosis of particular disabilities, in what has been referred to as the “status” approach to defining capacit
  • At other times, an “outcome” approach has been taken, which focusses on whether the individual in question is making “good” decisions – that is, whether the decisions that the individual is making are within the bounds of what might be considered reasonabl.[56]
  • Ontario’s approach, like that of many other common law jurisdictions, is based on a cognitive and functional approach. This approach emphasizes the ability to make a specific decision or type of decision at a particular time, evaluating the abilities of the individual to understand, retain and evaluate information relevant to a decision. This approach was adopted following the extensive work resulting in the 1990 Report in the Enquiry on Mental Competency, chaired by David Weisstub.[57]

Because the test for legal capacity determines the threshold for the application of the law, and because the consequences of a determination regarding legal capacity may be momentous, approaches to legal capacity are highly contested. The relatively abstract nature of the concept of legal capacity, embedded as it is in multiple intersecting legal, ethical, medical and social concepts and realities, makes these debates challenging.

Adding to the challenge is the difficulty of operationalizing the concept of legal capacity, particularly the nuanced approach adopted in Ontario’s laws. It may be difficult to disentangle implementation issues from shortfalls in the conception itself.

  • In this Final Report, Ontario’s systems for assessing legal capacity are dealt with in Chapter

Finally, the concept of legal capacity and the critiques of it are closely tied to the ongoing debate regarding the concept of “supported decision-making” as an alternative to substitute decision-making, in that some models of supported decision- making are grounded in a proposed fundamental shift in the approach to legal capacity.

Ontario, like other common law jurisdictions, employs an approach to legal capacity and decision-making based on substitute decision-making. Under the Substitute Decisions Act, 1992 (SDA) and Health Care Consent Act, 1996 (HCCA), where a person does not meet the threshold for legal capacity and a decision is required, another person – a substitute decision-maker (SDM) – will be in some way appointed to make that decision. In recent years, the social model of disability, which locates disability within society rather than the individual and focusses on social and environment barriers to inclusion, has been more widely accepted. As well, human rights approaches have continued to grow in influence both internationally and domestically. In keeping with these evolutions, voices have urged a re-examination of the substitute decision-making model and the development of alternatives. The term “supported decision-making” is often used to refer to these alternatives. There has also been some exploration of the concept of “co-decision-making”. Urgency has been added to this discussion by the creation of the Convention on the Rights of Persons with Disabilities (CRPD),[58] ratified by Canada March 11, 2010, which addresses the issue in Article 12.

There are two broad approaches to supported decision-making:

  • Supported decision-making as one of a spectrum of alternatives: In this approach, substitute decision-making is a last resort, where an individual’s decision-making needs are too complex for other less restrictive approach The concept of legal capacity continues to operate as a threshold for determining appropriate approaches to decision-making for particular individuals.
  • Supported decision-making as a complete paradigm shift: In this approach, supported decision-making replaces substitute decision-makin All individuals have legal capacity in all circumstances.

Both views were expressed during the LCO’s consultations, as well as the view that supported decision-making is not an appropriate approach to incorporate into Ontario law.

Issues related to concepts of legal capacity and supported decision-making are among the most controversial in this area of the law, as well as the most difficult. They raise profound conceptual and ethical questions, as well as considerable practical challenges.

It is not possible in this limited space to thoroughly analyze all of the issues associated with models of decision-making. The literature is voluminous, and different legal systems have adopted a range of approaches.

  • The Discussion Paper provides an overview of approaches to decision- making in Part Three, I.

This Chapter is focussed on the question of reforms to Ontario laws. It adopts as its basis the analytical framework suggested by the LCO Framework principles, and takes into account Ontario’s legal history and current context, the diversity of needs and circumstances, and the aspirations and concerns voiced through the LCO consultations.

B. DECISION-MAKING PRACTICES AND LEGAL ACCOUNTABILITY

It is helpful to keep in mind, when considering laws related to legal capacity and decision-making, two aspects of these laws: the realities of making decisions with or on behalf of someone else; and the determination of who is legally accountable for any decisions that are reached.

Decision-making practices include all those values and daily practices with which those who surround a person with impaired decision-making abilities approach the practical realities of reaching particular decisions. This might include, for example, processes such as consulting with the person affected or others who have a close relationship with the person. It might also include the criteria or considerations which are brought to bear in the process, such as what the affected individual’s goals are or have been, what might produce the best quality of life for the affected individual, and so on.

Decision-making practices take place, by and large, in the private sphere and are inherently relatively informal. By their nature, they are difficult to monitor and to regulate, tied up as they frequently are in family and social histories and dynamics. Whether these informal interactions are on the whole positive and supportive of the achievement of autonomy, inclusion, dignity and security for the individual, or whether they are negative or outright abusive, in most cases only becomes visible when the family unit interacts with the public realm. In some cases, such interactions are quite rare.

It was notable during the LCO’s public consultations with family members and individuals directly affected that while some had clearly undertaken considerable research related to their legal roles, the vast majority of participants who were either receiving or providing assistance in the form of substitute decision-making had only a very minimal knowledge of Ontario’s thorough legislative requirements regarding decision-making practices. Participants were not always clear even as to the difference between a will and a power of attorney document, or between a guardianship and a power of attorney, or other basics of the legislative framework. Very few substitute decision-makers (SDM) were aware of the duty to keep records or accounts or any of the other specific requirements of the role. Practically speaking, decision-making practices were rooted in family roles and history, the nature of the relationship, and a personal sense of the ethical obligations involved: the law was mainly understood as a potential tool for carrying out family roles and duties. In practice, most families have very little interaction with any formal legal structure outside of a few major decisions (such as a decision to open a Registered Disability Savings Plan or to sell a house), or in the case of a crisis.

Many service providers and professionals noted this disjunction during the consultations: family members often have a very weak understanding of their obligations as SDMs under the law, and as a result, the law falls short in practice.

Ontario law sets out important requirements for good decision-making practices, such as promoting participation by the individual and paying careful attention to the individual’s wishes and values. However, it is difficult for the law to effectively reach into the essentially private realm of decision-making practices. Often, inappropriate decision-making practices come to light only when they result in abuse that comes to the attention of third parties or service providers. This issue can never be wholly addressed without a degree of oversight and monitoring that would be burdensome for the vast majority of families and friends who are carrying out good decision- making practices to the best of their ability.

  • Practical ways in which the problem of mistreatment or abusive decision- making practices can be reduced are addressed in Chapter 6.

Many of the families with whom the LCO interacted indicated that as SDMs they employed decision-making practices that would be considered consistent with “supported decision-making” (as is described later in this Chapter), in that they were attempting to support their loved one’s ability to make decisions about their own lives, and to find ways to put into effect that individual’s values and preferences and to achieve his or her life goals.59 The LCO heard that many families see the promotion of their loved one’s autonomy as an important part of their role, regardless of the legislative framework in place.

During the LCO’s consultations, the LCO repeatedly heard that families struggle with the challenges of implementing good decision-making practices. There is very little information or support available to family members or other SDMs to assist them

with the practical, emotional and ethical aspects of this important role. Setting aside for the moment issues of outright abuse of substitute decision-making, misunderstandings of the requirements of the law, inadequacies in the practical skills necessary to carry out roles related to decision-making, and a lack of supports for non-professional SDMs play a significant role in shortfalls in decision-making practices in Ontario.

  • Chapter 10 identifies ways in which informational supports for families and other SDMs can be strengthened.

Legal accountability frameworks come into play in many circumstances, including contracts or agreements with respect to services. For example, law addresses how contracts may be entered into and consent provided where an individual lacks legal capacity, including who may be responsible for entering into agreements or providing consent to third parties, and who will be held accountable and liable for these decisions. By way of contrast, in the more private realm of decision-making practices, considerations of autonomy, security and dignity are pre-eminent.

Legal accountability structures and decision-making practices cannot be neatly separated from each other: legal accountability structures may embody or promote particular decision-making practices. However, as the discussion of decision-making practices above illustrates, because decision-making practices exist mainly in the private realm, there is not necessarily a clean correspondence between practices and the more public realm of accountability structures.

The LCO has observed that some of the tensions in the debates regarding legal capacity and decision-making arise from differential emphasis on the two aspects of decision-making law: decision-making practices and legal accountability structures. Proponents of supported decision-making are often most concerned with advancing and affirming autonomy-enhancing decision-making practices: legal accountability structures are seen as mechanisms for clarifying rights to self- determination. Opponents of supported decision-making are generally most focussed on legal accountability structures and the way in which these may be employed to unjustly leave vulnerable persons with no recourse against abuse or living in untenable circumstances.

C.  CURRENT ONTARIO LAW

This section briefly outlines Ontario’s current approach to the concepts of legal capacity and decision-making, as was shaped through the law reform efforts of the late 1980s and 1990s. Ontario’s approach shares some fundamental elements with legal frameworks in place throughout the common law world, but also has unique aspects, growing out of Ontario’s own context and history of law reform.

1.  Ontario’s Approach to Legal Capacity

The following elements are fundamental to Ontario’s current approach to legal capacity:

  1. Legislative presumption of capacity: In most circumstances, Ontario law presumes legal capacity. The HCCA makes explicit a presumption of capacity for decisions within its ambit: this presumption prevails unless the health practitioner has “reasonable grounds” to believe the person is legally incapable with respect to the decision to be 60 The SDA sets out a presumption of capacity to contract, though not for other areas falling within the scope of that legislation. The Ministry of the Attorney General Guidelines for Conducting Assessments of Capacity, which bind designated Capacity Assessors conducting Capacity Assessments under the SDA, emphasize that when Capacity Assessors assess legal capacity, “in every case there is a presumption of capacity and there should be reasonable grounds that prompt the request for a formal capacity assessment”.[61]
  2. Functional and cognitive basis for assessment of capacity: Ontario law bases the assessment of decisional capacity on the specific functional requirements of that particular decision, rather than on the assessment of an