IV. Concepts of Legal Capacity and Approaches to Decision-making: Promoting Autonomy and Allocating Legal Accountability

////IV. Concepts of Legal Capacity and Approaches to Decision-making: Promoting Autonomy and Allocating Legal Accountability
IV. Concepts of Legal Capacity and Approaches to Decision-making: Promoting Autonomy and Allocating Legal Accountability2017-04-24T15:31:48+00:00

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 individual’s abilities in the abstract, the individual’s status or the probable outcome of the individual’s Legal capacity is understood as referencing the practical decisional abilities of individuals. If a person evinces the requisite decision-making ability, the actual merit of the decision that is ultimately made is immaterial.
  3. The ability to understand and appreciate” test: in keeping with this functional and cognitive approach, Ontario’s tests for capacity are based on the individual’s ability to understand the particular information relevant to that decision, and to appreciate the consequences of making that decision.[62] It is the ability that is most important, rather than the actual understanding or appreciation. While this subtle difference can be difficult to apply in practice, it allows for more individuals to meet the test, as they must only display the potential for understanding and appreciation, rather than actual understanding and appreciation: for example, while communication barriers might thwart actual understanding, they would not impair the ability to understand.
  4. Domain or decision-specific capacity: Ontario avoids a global approach to capacity, so that determinations of legal capacity are restricted to the assessment of capacity to make a specific decision or type of decision. The SDA and HCCA provide specific tests of capacity for property management, personal care, creation of powers of attorney for property and for personal care, consent to treatment, personal assistance services provided in a long-term care home and admission to long-term care. While all are variants on the “understand and appreciate” test, in practice the requirements for meeting the test may be substantially different. In this way, the “understand and appreciate test” can operate with great flexibility, responding to its application in different contexts and for different purposes.
  5. Time limited determinations of capacity: Ontario’s regime acknowledges that decision-making abilities may vary or fluctuate over tim As a result, the validity of any one determination of incapacity is limited to the period during which, on clinical assessment, no significant change in capacity is likely to occur.
  6. Procedural protections for persons who may lack legal capacity: Ontario’s statutory scheme pays considerable attention to procedural protections for persons who may lack capacity, including mechanisms for providing information to the individual and for challenging decisions about legal capacity.

2.  Ontario’s Approach to Substitute Decision-making

It is worthwhile to remember that in most situations where individuals have impaired decision-making abilities, the law is not invoked. In some cases, individuals are not in situations that require significant decisions involving interactions with large institutions or professionals whose accountability and regulatory environments require legal clarity and certainty. In other cases, institutions informally accommodate families. By their nature, informal arrangements are flexible and adaptable to the particular needs of an individual. In most cases, these types of informal arrangements work well, although they are accompanied by a certain degree of risk.

Where the law is invoked, Ontario has a modern and carefully thought-out substitute decision-making system. The term “substitute decision-making” is used to describe a range of legal systems and approaches: to treat these various systems as interchangeable and subject to a uniform critique tends to lead to misunderstandings. It is helpful to keep in mind that substitute decision-making systems have evolved over time, in response to changing understandings and circumstances.

Substitute Decision-making – General

The following are the key elements of the concept of substitute decision-making as it is generally understood in common-law systems.

  1. Intervention is only permitted where an individual has been found to lack legal capacit Persons who have legal capacity have the right to make decisions independently, regardless of the wisdom of those decisions.
  2. Where an individual is found to lack legal capacity and a decision is required, a substitute decision-maker will be appointed to make the decision(s) on behalf of the individual. The substitute decision-maker (SDM) is thereafter held responsible for his or her actions in this role, and may be liable for damages for breach of duties, although it should be noted that the exact nature of the duties and the forms and level of accountability vary widely. The SDM is to act on the individual’s behalf and for that person’s benefit, although the specifics of how this is to be done again vary widely.
  3. Substitute decision-makers may be appointed by the individual or externally. SDMs may be appointed in a variety of ways. They may be appointed by the individual him or herself, through a planning document, such as a power of attorney. They may be appointed externally (as with a guardianship). They may also be appointed through a statutory priorized list.
  4. There is a preference for close relationships in the appointment of substitute decision-makers. While most systems make some provision for appointment of institutions or professionals where no family or friends are available to take on this role, there is a preference for close relationships as the foundation of the role.

Substitute Decision-Making – Ontario

Ontario has incorporated into its laws the general elements of substitute decision- making described above. Its substitute decision-making regime also includes a number of important additional elements. The LCO has concluded that Ontario’s statutory framework for legal capacity and decision-making places a relatively strong emphasis on autonomy-enhancing decision-making practices, together with a clear legal accountability framework which gives a central role to the substitute decision-maker.

  1. Decisions are based on substituted judgement’ rather than ‘best interests’: Ontario’s legislation is not based on a strict ‘best interests’ approach in which the SDM judges for him or herself what is ‘best’ for the person who lacks legal capacity. For the most part, Ontario requires an SDM to attempt to place her or himself in the individual’s shoes, applying the individual’s values and preferences to the degree that they are known and understood, and to make the decision that the individual would make if able to understand and apply all of the relevant inf For personal care decisions under the SDA and for all decisions under the HCCA, SDMs must consider the “prior capable wishes” of the individual, the values and beliefs held while the person was capable, and current wishes where they can be ascertained.
  2. SDMs have duties to promote participation: Under the SDA, both attorneys under a POA and guardians are directed to promote the participation in decision-making of the person, as well as to consult with others who have supportive relationships with the individual.
  3. Individuals have significant opportunities to choose or have input in the selection of a substitute: Ontario’s legislation aims to make it relatively simple and inexpensive for individuals who are legally capable to select their own SDM for property, personal care or treatment decisions through the creation of powers of attorney (POA). Ontario places relatively few restrictions on the content of POAs or requirements for their valid creation. As well, when guardians are identified, either through the statutory guardianship process’s replacement provisions or through court-appointments, the Public Guardian and Trustee (PGT) and the court respectively are required to consider the wishes of the person who is being placed under guardianship.
  4. Trusting relationships are seen as the most appropriate foundation for substitute decisionmaking: Ontario’s statutory scheme includes a number of mechanisms intended to give priority in identifying SDMs to existing relationships presumed to be based on trust and intima For example, the hierarchical list of SDMs in the HCCA gives priority, where an SDM does not already exist, to family members. Similarly, the replacement provisions for guardianships under the SDA focus on family members.
  5. Approaches to decision-making are specific to particular domains and decisions: SDMs are appointed for particular decisions or types of decisions. A person may have legal capacity to make some decisions and not others. Under the SDA, SDMs may be appointed for either property or personal care. Further, personal care guardians may be appointed for only some specific elements of personal care, which includes health care, nutrition, shelter, clothing, hygiene or safety. Grantors of POAs may of course tailor the scope of authority of the attorney they appoint. Under the HCCA, capacity is assessed in relation to the ability to make a particular decision only, and the scope of authority of the person appointed is restricted to that particular area.

D.  ARTICLE 12 OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

The rights enunciated in Article 12 of the United Nations 2008 Convention on the Rights of Persons with Disabilities (CRPD), ratified by Canada in March 2010,[63] are central to any discussion of legal capacity and decision-making. The CRPD codified the commitments of the international community with respect to the rights of persons with disabilities, detailing the rights that all persons with disabilities enjoy and outlining the obligations of States Parties to protect those rights. Its purpose 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”.[64] It reflects social and human rights models of disability and therefore highlights the need for society to adapt to the specific circumstances and realities of persons with disabilities in order to ensure respect and inclusion.

For the purposes of this project, it is important to keep in mind that the CRPD applies to persons with disabilities (which is broadly defined), and not necessarily to all persons who may be affected by legal capacity and decision-making laws. As a result, advocates and researchers have paid less attention to the potential application of supported decision-making to older persons or persons with temporary health emergencies. Article 12 sets out requirements for States Parties with respect to legal capacity.[65]

Article 12 requires States Parties to:

  • recognize persons with disabilities as persons before the law;
  • recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life;
  • take appropriate measures to provide access for persons with disabilities to the supports they may require in exercising their legal capacity;
  • ensure that all measures related to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abu These safeguards must ensure that measures related 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 by a competent, independent and impartial authority or judicial body;
  • take all appropriate and effective measures, subject to the provisions of the Article, to ensure the equal rights of persons with disabilities in a range of areas, including owning or inheriting property; controlling their own financial affairs; having equal access to bank loans, mortgages and other forms of financial credit; and ensuring that persons with disabilities are not arbitrarily deprived of their property.

There has been considerable debate about the implications of Article 12 for approaches to decision-making.

One view of Article 12 is that it protects individuals from discriminatory determinations of incapacity based on disability status, consistent with substitute decision-making as a last resort. This appears to have been the view of Canada when it ratified the CRPD: at that time, Canada entered a Declaration and Reservation, which states that “Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”.66 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”, and reserves the right for Canada “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”. It is the general practice of the Canadian government, when considering its position on international instruments that address matters of provincial jurisdiction, to consider the views of the provinces.

Other commentators view Article 12 as creating an inalienable and non-derogable right for persons with disabilities to be considered as legally capable at all times. In this view, legal capacity is an irremovable right of all individuals in all circumstances. This view is embodied in the 2014 General Comment developed by the Committee on the Rights of Persons with Disabilities.67 General Comments “are the result of a wide process of consultation and, although not legally binding, are regarded as important legal references for interpretation and implementation of specific aspects of the treaties”.68 In the view of the Committee, “there is a general misunderstanding of the exact scope of the obligations of State parties under article 12”. The following is a brief summary of the views of the Committee.

  • Article 12 affirms that all persons with disabilities have full legal capacity, and that legal capacity is a universal attribute inherent in all persons by virtue of their humanity, and which they cannot lose through the operation of a legal test. Legal capacity includes both the capacity to hold rights and the capacity to act (“to engage in transactions and in general to create, modify or end legal relationships”). Perceived or actual deficits in mental capacity must not be used as justification for denying legal capacit Status, outcome and functional approaches to incapacity all violate Article 12. All practices that in purpose or effect deny legal capacity to a person with a disability must be abolished.
  • All regimes wherein legal capacity may be removed from a person, even in respect of a single decision; where a substitute decision-maker can be appointed by someone other than the person concerned and this can be done against her or his will; or where decisions may be made for another based on an objective assessment of their “best interest” must be abolished. Creation of supported decision-making regimes in parallel with these substitute decision-making regimes is, in the view of the Committee, not sufficient to comply with Article 12. The Committee goes further to urge States parties to develop effective mechanisms to combat both formal and informal substitute decision-making.
  • Persons with disabilities must be provided with the supports that they require to enable them to make decisions that have legal effect. These supports must respect the rights, will and preferences of persons with disabilit Where the will and preference cannot be ascertained, the best interpretation of will and preference must be the basis for decision-making. Persons have a right not to exercise their right to supports. A person must have the right to refuse support and to terminate or change a relationship at any time.
  • Safeguards must be created to ensure protection from abuse, with a primary focus on ensuring the rights, will and preference of the person. Safeguards must include protection against undue influence, but must also respect the right to take risks and make mistakes.
  • These are not rights of progressive realization: States parties must take steps immediately to realize these rights.

In summary, the General Comment sets out a program of immediate and profound law reform, with enormous personal, social and legal ramifications not only for individuals themselves, but also for governments, family members and third parties. The Comment raises a host of practical questions and implementation issues, for which States Parties are expected to develop solutions.

Needless to say, the Committee’s interpretation of Article 12 appears to be radically different from Canada’s view as set out in the Declaration and Reservation. Both

envision an important role for supports to enable persons with disabilities to exercise legal capacity. Canada’s approach, however, sees determinations of legal capacity as continuing to be appropriate, with supports to be provided to avoid inappropriate use of substitute decision-making. The approach in the General Comment requires a fundamental shift such that all individuals receive whatever supports may be appropriate to enable them to make all decision for themselves, regardless of the degree of impairment in decision-making abilities.

Neither the General Comment nor the Declaration and Reservation determines the LCO’s potential recommendations. The LCO’s role is to make recommendations that are at minimum consistent with Canada’s international commitments. Given the non- binding nature of a General Comment and the existence of Canada’s Declaration and Reservation, neither the government of Canada nor Ontario is clearly bound to carry out the program of reform set out in the General Comment. However, the LCO may certainly recommend that governments take steps beyond minimum compliance with their international obligations.

E. THE CONCEPTS OF SUPPORTED DECISION-MAKING AND CO-DECISION-MAKING

Some people believe that Ontario’s legal capacity and decision-making laws should formally recognize a “supported decision-making” approach. This concept and its critics were discussed at some length in the Discussion Paper.

There is a multiplicity of meanings given to the term “supported decision-making”, even among its proponents. A practice described as supported decision-making by one person may be firmly placed outside the bounds of the concept by another. In part, this is because there has to this point been relatively little practical legal application of “supported decision-making”.

The concept of supported decision-making has its basis in the social model of disability. The goal of supported decision-making is to avoid loss of legal capacity through the provision of supports by persons with whom the supported persons have relationships of trust and intimacy. It is centred on the insight that for almost all of us, decision-making is a consultative endeavour such that we rely on supports from trusted others in making decisions of various kinds, and seeks to extend this approach to legal decision-making arrangements.

Key Elements of Supported Decision-making Approaches

The LCO’s Discussion Paper identified four widely (though certainly not universally) agreed-upon elements of “supported decision-making” approaches:

  1. Supported decision-making does not require a finding of lack of capacity. The focus of supported decision-making is not on the presence or lack of particular mental attributes, but on the supports and accommodations that can be provided to assist individuals in exercising control over decisions that affect them.
  2. In supported decision-making arrangements, legal responsibility for the decision remains with the supported individua The supported individuals retain control over their decisions, and those decisions are theirs, and not their supporters’.
  3. Supported decision-making arrangements are freely entered into by the individual who may require assistance in making decisions and those who will assist him or her. These arrangements cannot be imposed on the individual, and the individual must be able to exit them at will.
  4. Supported decision-making is based on relationships of trust and intima For supported decision-making to function as envisioned, any supporter must have significant personal knowledge of the individual, and must have the trust of the individual, to assist her or him in understanding and putting into effect her or his values and preferences.

In summary, “supported decision-making” may be understood as a way of articulating or promoting two goals.

  • Avoidance of legal structures that stigmatize or separate from the mainstream individuals who have difficulty in making decisions independently. In this view, the concepts of “legal capacity” as a threshold for decision-making status, together with the use of “substitute decision-making” for individuals who do not meet the threshold, are seen as detrimental to the equality rights of the individuals affected, as they remove rights that are enjoyed by others.
  • Implementing decision-making practices that promote the abilities of individuals with impairments that affect decision-making. This includes recognition of these individuals as having values, goals and preferences that are to be respected; and promoting their inclusion and participation in the broader societ

Ideally, these two goals connect and support each other, so that legal structures promote and protect decision-making practices that enhance autonomy. In theory at least, the greater control afforded to individuals by retention of their legal status should promote positive decision-making practices.

It is also important to keep in mind the relationship between approaches to supported decision-making and concepts of legal capacity, as highlighted earlier in this Chapter. To the degree that supported decision-making has been implemented thus far in the common law world, it has been within the functional and cognitive approach to capacity that Ontario currently applies. The concept of legal capacity continues to operate as a threshold, with supported decision-making a preferred alternative to substitute decision-making. Some envision alternative approaches in which cognitive abilities become irrelevant. In these approaches, decisions are based on the will and preference of the individual, however demonstrated, and supports are applied to enable

will and preference to be actualized in decisions that remain those of the individual. Examples of supported decision-making in common law jurisdictions include:

  • support authorizations or agreements available in Alberta and the Yukon,
  • representation agreements available in British Columbia and the Yukon,
  • recent reforms to Ireland’s guardianship laws: Ireland retains a functional definition of capacity,[69] and allows for “decision-making assistance agreements” which are similar to the support authorizations or agreements available in Alberta and the Yukon.[70]
  • recent additions to Israel’s guardianship legislation of an option for the courts to appoint a supporter for “an adult who, upon obtaining support, is able to make his own decisions in relation to his affairs”.[71]

The concept of co-decision-making was also canvassed in the Discussion Paper. Co- decision-making, sometimes referred to as joint or shared decision-making, is another alternative to substitute decision-making. In this approach, joint decision-making between the adult and the appointed co-decision-maker is mandated. Co-decision- making is therefore a more restrictive arrangement than supported decision-making, because the individual must make decisions about identified matters jointly. A decision made by the person alone is not legally valid. Co-decision-making is a significant departure from both the substitute and supported decision-making models, both of which see the capacity to make a decision as ultimately resting with a single individual – be it the substitute decision-maker (under a substitute model) or with the individual her or himself (in the supported model).

Co-decision-making has had much more limited implementation than supported decision-making. Both Alberta and Saskatchewan make provision for co-decision- making through judicial appointment.[72] The new legislation in Ireland includes an interesting approach to co-decision-making, which allows for personal appointments, albeit with considerable formalities and ongoing supervision of the co-decision-maker.[73]

Co-decision-making received very little attention during the LCO’s consultations, perhaps because it is considerably more complex, both practically and theoretically. However, it is also seen as less amenable to abuse than supported decision-making, and so raises fewer concerns, in some ways, than supported decision-making.[74]

Given the challenges of implementation and the low levels of interest, the LCO has not further explored the inclusion of formal co-decision-making mechanisms in Ontario law. However, the LCO recognizes that there are potential benefits to shared approaches to decision-making, and concepts underlying co-decision-making have influenced the LCO’s thinking about network decision-making.

F. PUBLIC COMMENTS ON LEGAL CAPACITY AND SUPPORTED DECISION-MAKING

The LCO’s extensive consultations for this project revealed two important findings regarding supported decision-making. First, most individuals, families and service providers were unaware of the concept. Amongst those who are aware, however, there is a striking degree of polarization. Law reform on these issues will require ongoing commitment to dialogue, and the promotion of understanding across difference.

The vast majority of those participating in the LCO’s consultations were not aware of the concept of supported decision-making. For example, most family members and individuals directly affected had limited knowledge of the current law, and even less knowledge of the broader critiques or law reform efforts surrounding it.

Understandably, their focus was for the most part on what in their experience had been helpful or unhelpful, and what the law should, in general, assist them to do. Similarly, most professionals and service providers had not encountered the concept before, or had only encountered it in the LCO’s consultations.

Persons connected with the intellectual disability community were by far the most likely to be conversant with the concept of supported decision-making. This is not surprising, given that the concept of supported decision-making has deep roots in the community living movement and in the experiences of individuals with intellectual disabilities and their families.

Amongst those who had some familiarity with the concept, the term was used in a variety of ways. Some professionals, individuals and advocates have given deep thought to the concept and have a clear, consistent and philosophically grounded approach to the term. Others used the term as a general way of talking about decision- making practices or legal frameworks that are more flexible or informal, or avoid a finding of incapacity. Some may use the term as a catch-all for any alternative to guardianship. The LCO has heard the term used as including powers of attorney, for example. This imprecision makes it difficult to take a clear message from some of the focus group discussions related to supported decision-making.

The issues surrounding supported decision-making were set out at some length in the Discussion Paper. The core arguments in favour of supported decision-making have their roots in concern for advancing the autonomy and equality of persons with disabilities that affect their decision-making abilities. Opposition to the concept focusses on the potential for abuse of such a system by family members and third parties, questions of its suitability for all groups affected by this area of the law (such as older persons with dementia, persons with certain mental health disabilities, or persons who are unconscious), and concerns regarding the apparent lack of clarity surrounding responsibility and liability inherent in such a system. As was noted earlier in this Chapter, proponents and opponents of supported decision-making focus on different aspects of decision-making laws: their potential for promoting autonomy-enhancing decision-making practices, and their important role in providing clear legal accountability structures and meaningful recourse against abuse.

The arguments for and against supported decision-making were reflected in several submissions to the LCO.

In its 2014 submission, ARCH Disability Law Centre advocated a move towards supported decision-making. The submission proposes research on best practices for supported decision-making, strengthened rights advice provisions for persons found to lack legal capacity, requiring periodic capacity assessments for those found incapable and increasing time-limited decision-making arrangements, educating decision-makers and requiring them to make regular reports, establishing a monitoring and capacity office, and strengthening mechanisms for dispute resolution. ARCH’s 2016 response to the Interim Report indicated support for the “general tenor” of the LCO’s draft recommendations in this area, including the adoption of a human rights accommodation approach to legal capacity, the creation of support authorizations and the development of network decision-making.

The Coalition on Alternatives to Guardianship’s Final Brief, entitled “The Right to Legal Capacity and Supported Decision-making for All”, emphasized the view that Article 12 prohibits any distinction based on cognitive abilities. Where a person’s will and preferences can be reasonably interpreted by others as a basis for directing legal relationships, there is a State Party obligation to recognize this as a legitimate way of exercising the capacity to act.[75] That is, where a person can evince “will and preference”, this is sufficient to accord the legal accountability associated with legal capacity to a person, provided sufficient safeguards are provided. It is the view of the Coalition that this is a matter of fundamental rights: while “this is admittedly not an easy task, as the LCO has documented in its Interim Report, it is one that must be undertaken and is achievable”.[76]

In pursuit of this goal, the Coalition proposes a complex, comprehensive reform of Ontario’s decision-making laws, towards a system which is centred on a form of supported decision-making and allows for continuation of substitute decision- making only in the form of powers of attorney. This is an extremely complex proposal, which can only be briefly summarized here. In brief, the Coalition advocates that the purpose of a new legislative scheme be:

  • the promotion of a right to legal capacity,
  • to provide safeguards where it cannot be exercised independently, and
  • to ensure access to supported decision-makin

The proposal provides for three ways to exercise legal capacity:

  • legally independently (which may require the provision of supports and accommodations),
  • through a power of attorney as provided for in the SDA, and
  • through statutory supported decision-making arrangements.

Supported decision-making arrangements could be created by personal appointment or, where this is not possible, by external appointment.

The Coalition further purposes that at all points where incapacity for legal independence may be triggered, an “Alternative Course of Action” assessment would be required. A comprehensive system of institutional safeguards would be established, including:

  • an Office of the Provincial Advocate for the Right to Legal Capacity to provide both systemic and individual advocacy,
  • a legislated role for monitors for supported decision-making arrangements,
  • an expanded tribunal to adjudicate on these matters,
  • a broad complaint and investigation function, and
  • a registry for supported decision-making arrangements.

An opposing view was expressed by the Advocacy Centre for the Elderly, which has consistently expressed support for retaining a functional and cognitive approach to legal capacity, and emphasized its grave concerns about the potential of supported decision-making arrangements for abuse. In this, it was supported by the submissions of the Mental Health Legal Committee, a group of lawyers and community legal workers practicing in the area of mental health law. Focus groups of trusts and estates lawyer raised similar concerns, including multiple issues about the practicalities of dealing with financial matters of any significant size.

Many clinical and social service professionals were interested by the concept of supported decision-making, hoping that some implementation of the concept could add to their ability to provide nuanced responses to some complex situations, particularly for younger persons whose skills are developing, or persons whose decision-making abilities fall within the “grey area” on the borders of legal capacity. It was posited that supported decision-making is a more realistic option for some than for others, whether because of the nature and extent of a particular individual’s needs with respect to decision-making, or because of their social contexts. Not everyone has family members or friends in their lives who could potentially play this role: some are socially isolated, others live at a geographical distance from those who most love and understand them, and for some, their significant others are frail, vulnerable or themselves in need of supports. The latter scenario is not uncommon for older persons, whose social networks are aging along with them. Even where relationships exist that could form the basis of supported decision-making, there can be no guarantee of permanence. This is also true for substitute decision-making: the added difficulty lies in the deep reliance of supported decision-making approaches on these relationships of trust and intimacy. Where these relationships disappear, so will the foundations for supported decision-making for a particular individual.

Individuals directly affected by the law had a range of views about how decisions regarding their lives should be made, the appropriate role for loved ones, and the type of assistance that was helpful and appropriate. While some felt that unwanted “help” was foisted on them, others indicated that they knew that they were unable to make certain types of decisions or were at some times unable to make decisions, and that they were comfortable relying on their loved ones to make those decisions for them.

The LCO heard a range of views from families. The LCO heard from a number of family members of persons with intellectual or developmental disabilities who were proponents of supported decision-making. For the most part, these family members were chiefly interested in the development of options that they believe would be better suited to their loved one’s situation than the current system. They were generally reluctant to pronounce definitively on what other situations or families might require. That is, their concern was not so much to see a fundamental re-structuring of the law (as for example, along the lines of the General Comment, or other comprehensive program of reform) but to ensure that there was room within the system to meet their own needs.

Family members, for the most part, were looking for an approach to decision-making assistance that would be relatively informal (so as to maintain accessibility), flexible and non-stigmatizing. Parents of adult children with intellectual or developmental disabilities noted that they had put considerable effort into focusing on their children’s abilities and potential: a declaration of incapacity was felt to run counter to the entire philosophy with which they had raised and supported their now adult children.

Further, the complicated and costly process for guardianship was seen to be beyond the emotional, practical and financial resources of many families. However, there was also considerable discussion about risks of informal systems. Family members emphasized the vulnerability of their loved ones to abuse, and many openly worried about what would happen if their loved one survived them: the kind of informality that would make it easiest for them to support their loved one might not be appropriate in other circumstances. Issues of abuse are dealt with later in this Final Report; however, these issues are also relevant to the consideration of approaches to decision-making.

The number of Ontarians under guardianship is relatively small – under 20,000 in 2013-14.[77] However, the greatest concerns regarding current approaches to decision- making were voiced regarding guardianship (whether instigated under the SDA or MHA), as opposed to decision-making through powers of attorney (POA) or by proxies under the HCCA. POAs allow individuals to select the person(s) providing decision-making assistance and are amenable to customization to individual circumstances. They do not necessarily entail a formal declaration of incapacity (although they may) and as personal documents are seen as less marginalizing than the formal legal status of guardianship. HCCA decision-making arrangements are similarly seen as flexible and relatively non-stigmatizing. Because guardianship involves a formal declaration of incapacity, and is often time-consuming and costly to enter or exit, it is seen as having very “weighty” status. Family members emphasized to the LCO that, by and large, they did not see this as a practical or appropriate option for their loved ones.

Guardianship is often the only formal option for those persons with intellectual or developmental disabilities who cannot independently make major decisions. Unlike persons who develop disabilities affecting decision-making abilities later in life or whose disability is episodic, they may never at any point in their lives be able to meet the test for legal capacity required for them to appoint a POA for property or for personal care. Guardianship therefore has a particularly heavy impact on this community.

G. LOOKING FORWARD: CONSIDERATION

1.  Applying the Principle of Autonomy

As was highlighted in Chapter 3, one of the central law reform priorities identified through the LCO’s work on this project is to reduce unnecessary and inappropriate intervention in the lives of persons affected by this area of the law, in keeping with the principle of fostering autonomy and independence. Persons affected by this area of the law were clear that they wished at the least for the opportunity to be consulted and heard on decisions that affect them, and to make their own decisions where possible. Several individuals described, with considerable pain, their experiences of being disregarded and unheard, and their sense of being thwarted in directing their own lives.

As was highlighted in Chapter 3, one of the central law reform priorities identified through the LCO’s work on this project is to reduce unnecessary and inappropriate intervention in the lives of persons affected by this area of the law, in keeping with the principle of fostering autonomy and independence. Persons affected by this area of the law were clear that they wished at the least for the opportunity to be consulted and heard on decisions that affect them, and to make their own decisions where possible. Several individuals described, with considerable pain, their experiences of being disregarded and unheard, and their sense of being thwarted in directing their own lives.

Mom can be overly patronizing, I have made great recovery from a catastrophic injury. I recently earned a [university] degree. I am entering my 30s now and I’d appreciate better independence, freedom and dignity. Giving another person full arbitrary power over another person’s life decisions can become inefficient and messy and dehumanizing. Canadian culture does not support things like arranged marriage, but this can be likened to the situation people who have substitute decision makers may sometimes feel. Sometimes it feels like simply because they got this legal piece of paper I am looked at and treated differently than I normally would be treated, my valuable insights and intuition can become ignored, and sometimes any opinion I may have can become scorned. Having such a profound legal document completed I feel has set back my recovery from severe injury and I have certainly suffered losses I believe purely as a result of having this capacity assessment done …. It added immense stress.[78]

Participants in the LCO’s focus group for persons with aphasia, a condition that affects the ability to speak, write or understand language, described, with deep emotion, the impact of having health practitioners or others with whom they interact, automatically assume that they could not understand or participate in a decision and turn towards the person accompanying them, excluding them from the discussion of their own lives. These comments highlight the centrality in this area of the law of respecting the importance to individuals of controlling their own lives to the greatest degree possible.

The debates regarding the concept of legal capacity and supported decision-making explicitly draw on the principle of fostering autonomy and independence. Critiques of current practices and proponents of the approach that abolishes substitute decision- making point to inherent shortfalls in the promotion and protection of autonomy in systems such as Ontario’s. Those who criticize the current legislation without wishing to abandon substitute decision-making see the shortfalls as issues of implementation; others see the concepts of legal capacity and substitute decision-making as fundamentally inconsistent with the principle of autonomy.

However, acknowledging the importance of fostering autonomy is only one aspect of a consideration of the appropriate approach to legal capacity. As was discussed in Chapter 3, while our society places a high value on autonomy and self-determination, we are all subject to a wide range of legal restrictions aimed at protecting the rights and needs of others or of the collective, or at preventing unconscionable risk. That is, as important as autonomy is, it is always subject to limits, whether practical, social or legal. The limitations to autonomy imposed by legal capacity and decision-making laws are not automatically inappropriate simply and only because they are limitations to autonomy; however, the creation of additional burdens on autonomy for only some individuals means that they must be subject to careful scrutiny to ensure that they are justifiable.

As Chapter 3 discussed, because this area of the law is preoccupied with issues of choice and risk, the principles of safety or security are often posed as in tension with that of autonomy and independence. This highlights the importance of a nuanced approach to both sets of principles. There is no simple resolution to the challenges underlying this area of the law: all approaches to legal capacity are conceived by their proponents as attempting to maximize the two principles, albeit in different ways.

By its very nature, autonomy includes the right to take risks and make bad decisions. Functional approaches to legal capacity emphasize the right of persons who meet that threshold of legal capacity to take risks and make bad decisions within a broad range of activities. These approaches also inherently limit the right to take risks or make bad decisions of persons who do not meet that threshold. The substitute decision-maker may take a risk or accept a negative outcome on behalf of the person, within the limitations of the legislation – for example, to refuse a recommended health treatment– but must accept the responsibility for having done so.

The issues underlying concepts of legal capacity therefore must be understood to include not only the right to take risks, but also the corresponding responsibility to bear the consequences of those risks. In a legal framework, this raises questions regarding the appropriate apportionment of liability and accountability. The following section looks more closely at the relationships between decision-making, legal accountability, autonomy and risk.

2.  Legal Accountability and Responsibility for Decisions

As briefly described above, the current approach of Ontario law towards this area is that where impairments in decision-making ability reach a threshold of legal incapacity, another individual(s) will take responsibility for entering into agreements on behalf of the person. That individual (SDM) can be held to account for how she or he carries out that role. For example, the SDA binds SDMs to objective standards of decision-making and specifies that guardians and attorneys for property are liable for damages resulting from a breach of their duty.[79]

The allocation of legal accountability and responsibility for decisions has both positive and negative aspects. The status of legal capacity is often conceptualized as an aspect of legal personhood. As the General Comment states,

Legal capacity has been prejudicially denied to many groups throughout history, including women (particularly upon marriage) and ethnic minorities. However, persons with disabilities remain the group whose legal capacity is most commonly denied in legal systems worldwide. The right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others. Legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights. It acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work. The denial of legal capacity to persons with disabilities has, in many cases, led to their being deprived of many fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty.[80]

Some proponents of supported decision-making believe that substitute decision- making is by its very nature incompatible with the preservation of the autonomy and dignity of affected individuals: that the removal of the legal status of responsibility for decisions that is associated with a determination of incapacity is fundamentally at odds with the possibility of that person’s being able to exercise any control or agency in their own lives.

This is a compelling critique. The legal status associated with substitute decision- making has both a practical and a symbolic impact. Its visible removal of legal responsibility for a set of decisions undermines not only the practical ability of an individual to independently undertake certain transactions, but the social status of the person as the key decision-maker in his or her own life. In a sense, it compromises the public “face” of the person.

Somewhat less attention is paid to the other aspect of the retention of legal capacity – that it entails acceptance of responsibility for the legal consequences of a decision. This raises a number of complicated issues.

As a starting point in understanding the implications of an approach where all individuals have legal capacity at all time, it is important to understand that in such a regime, the consequences of a risky or outright bad decision remain with the individual, who is entitled to make such decisions, no matter how compromised their decision-making abilities may be. For example, within the framework set out in the General Comment, it appears that treatment of a person with a severe mental health disability that affected decision-making abilities without her or his consent would never be considered acceptable, even to prevent serious harm.[81]

All individuals have the right to take risks and make foolish decisions Yet the fundamental question here is something slightly different: whether it is just for an individual to suffer significant adverse consequences which she or he was not able to understand or foresee.

Certainly, the person appointed as supporter in these arrangements has an important role in assisting the supported individual with assessing the implications of a decision. However, the supporter cannot bind the individual to his or her understanding of a risk or a negative outcome. The supporter may not be able to adequately convey the implications of a decision, whether because of the nature of the decision-making impairment or the lack of skill of the supporter. In either case, the supported person will remain legally responsible for the decision, regardless of the degree of their understanding of the consequences.

An approach to legal capacity that presumes that individuals always retain capacity to make decisions necessarily also raises questions about the nature of decision-making and legal accountability for those decisions. In the LCO’s view, there is an important and material difference between situations where an individual is able to both indicate a preference and have some insight into the implications of that preference and situations where another person is required to assess the potential consequences of that preference.

Practically speaking, almost all individuals may be able to indicate in some way whether they are comfortable or uncomfortable in a particular situation, for example, or to communicate basic desires or interests. For individuals who develop disabilities late in life, others who know them may be able to infer their wishes through knowledge of their history. These kinds of communication or knowledge may provide guidance to a supporter for many daily decisions. However, it may not, practically speaking, provide clear guidance in complex issues or novel scenarios. Many an adult child has faced anguishing decisions regarding the appropriateness of a particular medical treatment for a parent, despite having had a lifetime’s worth of knowledge of that parent’s values and preferences.

Where decisions involve multiple and complicated alternatives and are high-stakes, even if the “supporter” is conscientious and attentive to the individual, it is highly debatable as to whether that individual can be said to have “made a decision” in a way that would justify the supported individual being singularly responsible and legally accountable for the decision. To attempt to intuit another person’s preferences is a challenging and highly fallible endeavour, no matter how rigorously and carefully it is carried out, and again, this is particularly true in complicated situations or ones where there is no past experience to rely on as a guide. In many circumstances, the supporter cannot simply be a neutral conduit for a clearly ascertainable decision by the individual.

These abstract-seeming questions regarding legal accountability have significant practical effect on two major elements of this area of the law: safeguards against abuse, and clarity and certainty in transactions and agreements. These are addressed in detail below.

3.  Concerns Related to Abuse of Supported Decision-making Arrangements

The Advocacy Centre for the Elderly (ACE)’s submission to the LCO raised one of the most common concerns about supported decision-making arrangements:,

The difficulty with this [supported decision-making] arrangement is that it creates a risk of undue influence by a legally designated support person. While this risk also exists in more traditional arrangements involving attorneys and guardians for property, we are concerned that actual abuse by a support person will be more difficult to detect as the true identity of the decision- maker, and the factors influencing each decision, may become opaque.[82]

Policy-makers in jurisdictions with supported decision-making arrangements have attempted to mitigate this risk. For example, in both Alberta and Yukon, supporters can be held responsible for their own behaviour in relation to the individual and to third parties. Decisions may also not be recognized as belonging to the individual where misrepresentation, undue influence or fraud on the part of supporters were at play.[83]

Notwithstanding these efforts, it may still be very difficult in practice to obtain evidence of misrepresentation or undue influence on the part of a supporter. As noted above, decision-making practices are for the most part private and informal, and not the subject of documentation. Where close personal relationships are involved, there are likely to be tangled webs of power and interdependence: it may be quite difficult, both practically and psychologically, to disentangle the interests and motives of “supporters” from those of the individual they are intended to support. Moreover, some persons who are unable to make decisions independently may have considerable difficulty identifying the motives of those who are supporting them, communicating what the decision-making process was like from their perspective, or reliably remembering what that process was. In these circumstances, it may be very difficult to challenge decisions based on the supporters’ alleged misrepresentation or undue influence. This view was clearly articulated by ACE in its 2016 submission,

Because the entire decision-making process is obfuscated by the supported decision-making approach, it becomes extremely difficult to determine where a decision originates. This creates a situation in which the individual at issue is both vulnerable to abuse and legally accountable for decisions they may or may not have had a hand in making.…Where there is a power of attorney granted, it is clear who has decision-making authority if the person is incapable. Moreover, there is some scope for the grantor to challenge the decisions made by the attorney.[84]

This critique is important but not is not by itself determinative. The extent of the risk of abuse depends in part on the approach one takes to supported decision-making. If one sees supported decision-making as an approach appropriate only for individuals who are able to make use of assistance to themselves assess issues and make choices, the risk may not be substantially more than is already undertaken by persons who create powers of attorney. However, in an approach where all individuals are “supported” and legal capacity is retained even by those individuals with the most severe disabilities, the risks are significantly greater. This is particularly so where only one or two people can claim to be able to interpret the wishes of the individual, and where the individual effectively has no ability to independently signal her or his unhappiness or to seek help.

4.  Concerns Regarding Clarity and Accountability

The LCO Frameworks highlight the importance of developing and interpreting laws, policies and practices in light of the broader community. In the context of models of decision-making, this means that the LCO must be cognizant of the legitimate needs for clarity, certainty and accountability of those who provide services to or enter into agreements with persons whose decision-making abilities are impaired.

During our consultations, service providers and third parties raised concerns about the inherent lack of clarity in supported decision-making arrangements. For example, financial service providers often expressed both empathy for the challenges faced by families of persons with disabilities that impair their decision-making abilities and concern that proposed supported decision-making arrangements would place an unreasonable burden on their institutions. As some representatives of financial institutions told the LCO, it is essential that third parties are able to receive instructions from one person who has binding authority.

As an illustration of the difficulties, some financial institutions operating Registered Disability Savings Plan (RDSP) accounts told the LCO of family members who wished an RDSP account to be opened in their loved one’s name, but who also wished the financial institution to hide the existence of the account from the account holder, or to refuse to release assets if or when the account holder requested. That is, the financial institution was being asked both to provide individuals with impaired decision-making abilities with legal status as the holder of the account, and to deny these individuals the basic responsibilities of account holders because family members believed that the individuals were unable to exercise those responsibilities even with their support. This puts financial service providers into extremely difficult positions.

In response to such concerns, the Coalition on Alternatives to Guardianship recommended that legislation provide for protection of third parties who enter into agreements with individuals in formal supported decision-making arrangements, to the extent that the third parties abide by the principles of supported decision-making, and respect and accommodate the duties of decision-making supporters. Third parties would be entitled to request and receive a notarial or original copy of a decision-making agreement on which the individual was relying, and would themselves be entitled to rely on the exercise of that arrangement as evidence of a valid decision.[85]

This proposal suggests that the third party would not be required to “look behind” the supported decision-making agreement. In other words, absent clear signs of abuse, the third party would be entitled to rely on the agreement and hold the individual responsible. It would be for the individual to seek redress from the supporter should there be duress or undue influence. The LCO does not support this proposal. The LCO is concerned that such an approach may leave many victims of financial abuse without a legal remedy. Further, while it might protect the third party from liability, the third party might still be unable to enforce the contract, as it might be found to be unconscionable. That is, to truly address the concerns about supported decision- making raised by third parties could require a thorough reconsideration of some of the basic principles of the law of contract.

5.  Responding to Diverse Needs

The LCO Frameworks emphasize the need to respond to diverse needs, and discourage uniform, one-size-fits-all approaches that fail to respect individual choices and circumstances.

Decision-making abilities of individuals may be impaired for a variety of reasons and in a variety of ways and degrees:

  • Some individuals whose decision-making abilities are affected by temporary or more permanent illness or disability may be able to continue to make all of their decisions independently, but may need more time or alternative communication strategies.
  • Some may need help in understanding their options and the implications, but with that assistance, can make decisions on their own.
  • Some may be able to articulate their overall goals, but will not be able to understand and assess how various options might assist them in reaching their goa
  • For some, their goals will have to be inferred from their behaviours and their reaction to various situations and environments or from their past cho
  • Some have insight into their needs and will accept or seek assistance; others will not.
  • Some have the ability to learn and to improve their decision-making abilities; others will be living with conditions that will result in continual deterioration of their abilit

As well, every person will come to decision-making with his or her own personality, history and approach to receiving assistance, as well as with access to different levels and types of support. The LCO’s consultations suggest that all or nothing approaches to supported decision-making may not be advisable.

 

In these circumstances, it is important to underscore that not all individuals or communities share the same views on legal capacity and models of decision-making. Many individuals and communities favour supported decision-making arrangements. Conversely, many individuals do not see substitute decision-making as an unjustifiable intrusion on their autonomy. There were many participants in the consultations who were directly affected by these laws who felt that, given their own limitations, their loved ones were in a better position to make certain types of decisions and wished to entrust them with that role.

If I wouldn’t have had it [a POA] already in place, it would’ve been a disaster because I found my care at [the hospital] was horrible…. You know and to be honest with you, usually we’re not in any condition, you know at the point to understand what’s going on, let alone have someone trying to explain something.

 Focus Group, Persons with Acquired Brain Injuries, November 7, 2014

The LCO’s consultations confirmed that there are many Ontarians who see planning documents such as powers of attorney as a way to preserve their choices and identities in the face of potential changes to their abilities: the notion of appointing another person to make a decision for them was often seen as a means to promote autonomy. Married couples sometimes conceptualized substitute decision-making roles as an extension of how they had assigned roles and divided labour throughout their relationships. These individuals trusted their spouses to make decisions for them and to respect their individuality in doing so. The concept of substitute decision-making was for these individuals not seen as something foreign or intrusive. Younger persons with disabilities affecting their decision-making abilities tended to express more interest in the opportunity to change and take risks, and thus placed more emphasis on respect for their current values and goals. While the LCO was not able to extensively explore cultural perspectives on decision-making models, it is important to keep in mind that gender and culture may also affect approaches to autonomy and decision-making.

[M]ost of us who have folks from another culture, you know, their value of autonomy is not the same, and how do we deal with that in terms of supportive-decision making too, for that person, that group. And I’m conscious of intracultural differences as much as I am of intercultural differences, but this is something to be mindful of, you know. This is part of this discussion.

Focus Group, Joint Centre for Bioethics, October 1, 2014

Finally, the LCO heard from many professionals and service providers that the present system lacks nuance, is overly binary, and has difficulty with situations that fall into the “grey zone”:

I feel like often I’m constrained by [the] very arbitrary dichotomous approach to either capable or incapable, and that’s just not a developmental approach, and we have youth who maybe are sixteen, but actually their capacity to – not understand, often they’re very capable of understanding information – but the appreciation and the translation of that into sort of ramifications and impact on their lives down the line may be grossly lacking or very variable, day-to-day depending on who’s ticked them off. It bothers me, so that’s the receiving end. But I mean, I think really that’s where I find myself operating, it’s really about, even if, if a youth is made incapable, really where does that get us, very very, not very far, unless we can have a process of having that youth still very much in the conversation about the decisions and actually ultimately agreeing to the decisions, but with a little bit oomph behind how to support the parents.

Focus Group, Clinicians, September 12, 2014

Many clinical and social service professionals were interested by the potential of supported decision-making approaches to allow for a broader array of options in some complex situations or for some specific populations. However, these professionals also tended to feel that the concept was more easily applicable to some populations and situations than others. For example, some felt that a precondition for effective supported decision-making was that the individual have insight into their needs and limitations, so that she or he could effectively assess the need for and access appropriate supports. Others felt that some types of decisions were more amenable to a collaborative approach than others. The concept of supported decision-making was thus seen as potentially a means of adding to the options in the current system, rather than as a replacement for a substitute decision-making model.

I think what I see across the spectrum of the organisation is that one size fits all doesn’t fit. You know, we see a lot more collaboration with families in terms of decision making in some areas like [unclear] than we necessarily do in the adult populations, and then there are some decisions that are being made, you know, housing, some of the more rehabilitative decisions that are, almost by necessity have to be collaborative, we can’t physically transport someone to their housing. Yet there are times when, for example, on our very acute care units where somebody needs particular medication, the need for a very very decisive decision on behalf of someone who cannot make that decision, you know, in terms of administration and medication is very important to be able to have. You know, those types of situations of more collaborative, supported decision making model, maybe sort of fraught with difficulty in terms of being able to administer acute medical care when it’s needed.

Focus Group, Clinicians, September 12, 2014

 

H. THE LCO’S APPROACH

The issues in this area raise considerable challenges and there are no easy answers. The LCO has given careful consideration to how to best meet these competing considerations. To that end, the LCO has identified a number of foundational principles that govern the LCO’s approach to these issues.

1.  Legal Accountability Should Accord with Decision-making Processes

The LCO believes that a person’s legal accountability should be consistent with their role in decision-making.

The LCO further believes that there are circumstances where it is appropriate to find that an individual does not have the decision-making ability to make a particular decision or type of decision independently. Indeed, it is hard to imagine a legal framework that does not involve some assessment of decisional abilities: there must be some system to determine issues of accountability and enforceability. A system in which all individuals have legal capacity at all times, and therefore in which legal accountability is always retained by persons with impaired decision-making ability unless fraud or abuse can be proved against a supporter, is a system that will inevitability lead to some unjust results.

As noted elsewhere, the LCO believes there is a material and legally significant difference between situations where an individual is making a decision and where someone else is acting as an intermediary. In these latter circumstances, it would be unreasonable and potentially very harmful to make the individual with impaired decision-making abilities solely responsible for the legal consequences of important decisions. The LCO further believes that the individuals acting as intermediaries should be aware that they are undertaking a significantly morally freighted activity and that the obligations on them are high.

Accordingly, the LCO believes that legal accountability structures should mirror, as closely as possible, the actual decision-making process. Where the individual her or himself is ultimately making a decision, even with assistance from another, it is reasonable to retain accountability with that individual. However, where another person is the one actually weighing options and consequences, even if based on the values and preferences of the individual, the person who is carrying out this analytical process should have some clear accountability and legal consequences for the decision ultimately reached.

2. Ensuring the Least Restrictive Approach

The LCO, like many others in the area, believes that the laws, policies and practices in the area of legal capacity and decision-making must take the least restrictive approach to personal rights and autonomy.

Article 12 of the CRPD and the General Comment highlight the central importance of avoiding paternalism in regards to persons with disabilities, and respecting the role of choice and risk in human experience. In public policy, there are often difficult balances to be struck between respecting individual rights to make risky or bad choices, and avoiding untenable outcomes. Issues related to legal capacity raise these questions in ways that are particularly challenging, given the vulnerability of the group affected, as well as the long history of unwarranted and ultimately counterproductive paternalism towards older persons and persons with disabilities.

The law reform leading to the current legislation identified as one of its core values freedom from unnecessary intervention. As a result, the SDA and HCCA include many mechanisms intended to promote this value, including presumptions of legal capacity, decision-specific approaches to capacity, procedural protections for persons found legally incapable and the “least restrictive” provisions of the SDA with respect to court-appointed guardianships. Many organizations and individuals recognize the seriousness of a finding of legal incapacity and do take a last resort approach.

It is clear in practice, however, that the legislation has not fully achieved this goal. There was widespread agreement throughout the consultations that law reform should, for example, limit the use of substitute decision-making arrangements, and in particular guardianship, to those circumstances where it is truly warranted. While there was disagreement as to how much further the use of substitute decision- making – and especially guardianship – could be narrowed, there was certainly agreement that there was room for improvement.

There are recommendations throughout this Final Report to reduce use of substitute decision-making:

  • Chapter 5: improving the quality of assessments of capacity and of the associated procedural protections, so that individuals are not inappropriately found legally incapable
  • Chapter 6: improving transparency and accountability for personal appointments, to reduce their misuse
  • Chapter 7: strengthening mechanisms for rights enforcement and dispute resolution, and in particular expanding the accessibility of these mechanisms, through expanded use of administrative justice , alternative dispute resolution and supports for litigants
  • Chapter 8: increasing the flexibility and options available when external appointments of SDMs are made, to provide greater tailoring in both time and scope of appointments and to reduce unnecessary appointments
  • Chapter 10: promoting better understanding of SDM roles and responsibilities

3. Promoting Autonomy-Enhancing Decision-making Practices

The LCO believes that decision-making must be guided by the life goals and values of the individual, whether that is described in terms of the “will and preference” of the person or the “values and wishes”, and that individuals should be supported to the greatest degree possible to be participants in decisions about their own lives.

This is a complex issue where law and practice often do not fit into clear categories or descriptions. It goes without saying that decision-making practices on the ground cannot be severed from questions about the legal frameworks governing these practices. However, it is also true that decision-making practices on the ground are not necessarily determined by the governing legal framework. Family members in a substitute decision-making role may approach that role in a way that is harmonious with the practices promoted by supported decision-making. Such approaches are certainly not contrary to either the substance or the intent of the current legislation. Indeed, these types of daily practices would be embraced and promoted as good practice by many, if not most, professionals and service providers.

And as was raised by a number of persons during the LCO’s consultations, the vulnerability of persons with disabilities affecting their decision-making abilities to abuse or manipulation is grounded not only, and not even primarily, in the loss of legal status associated with a finding of incapacity, but also in much broader and less tractable societal barriers. It is not difficult to imagine a regime in which all individuals retained legal capacity but in which the interactions of “supporters” with the supported individuals were paternalistic and controlling. That is, while philosophically “supported decision-making” is intended to promote the ability of individuals to exert control over their lives, as with any legal regime in this area, there will always be significant challenges at the level of implementation and daily practice, which is by its nature resistant to supervision.

The LCO believes that one of the most effective means of promoting autonomy, dignity and participation is to promote better decision-making practices on the ground. The LCO has therefore proposed recommendations to support and strengthen positive decision-making practices.

4. Providing Options to Meet Diverse Needs

The LCO believes that the laws in this area should provide more options.

The needs and circumstances of those affected by this area of the law are extremely diverse. People need different types and levels of supports and assistance, face different types of risks, and exist in very different contexts. Approaches to this area of the law must, to the degree possible, recognize and make room for this diversity. This is challenging, in part because providing multiple options adds to the complexity of an already seemingly convoluted system, and in part because systems generally have difficulty adapting to situations that do not produce yes or no answers.

As noted above, during the LCO’s consultations, most of the interest in “supported decision-making” was found in the intellectual and developmental disability community. The concept currently has less resonance among other groups disproportionately impacted by these laws. Indeed, some advocates for other affected groups actively oppose supported decision-making. For example, individuals and organizations that represent and advocate for older adults have expressed particularly strong concerns, perhaps reflecting the history of financial and other forms of abuse of vulnerable members of this group.

Aspirations for dignity, inclusion and autonomy were widely shared by those the LCO consulted. That said, not all individuals and advocates agreed on the means of achieving these aspirations. It is the LCO’s view that these differences should be understood and respected. What works for some may not work for all. The supports needed to achieve autonomy may differ significantly, and a single legal framework may be inappropriate for addressing these varying needs.

5.  Moving Forward

The principles underlying the LCO’s Frameworks and the CRPD must guide any approach to this area of the law.

Law reform in this area requires imaginative new approaches. It is also at a cross roads. On the one hand, at this time, many jurisdictions are re-examining their legislation, and some have recently implemented or are in the process of implementing significant changes. On the other hand, there is currently little in the way of an evidence base on which to ground law reform. In these circumstances, the LCO is proposing a measured, evidence-based approach. Given the vulnerability of the population affected, the LCO is concerned that reform proceed in a way that minimizes the risk of grave unintended negative effects, particularly given the concerns expressed about the potential of supported decision-making approaches to enable abuse in some circumstances. Without due care and balance in reform of this area of the law, those whose rights are intended to be promoted may instead find themselves in worse circumstances – particularly since many of those affected are already more at risk of marginalization and abuse than the general population.

It is essential to progress towards greater dignity and autonomy for persons affected by this area of the law, but it is also essential to do so in a way that seeks to build on evidence, realistically and practically addresses the difficulties, takes into account the diversity of needs and circumstances of those affected, and proceeds with reasonable caution so as not to inadvertently result in greater harm than benefit.

The LCO therefore believes a “progressive realization” approach to reform in this area, which adopts the basic aspirations underlying Article 12, aims to better promote and protect the Framework principles, and seeks to implement them by building on existing good practices, providing new options with carefully considered safeguards, and evaluating the evidence on which reform is based, is appropriate.

I.   RECOMMENDATIONS

Based on all of the above, the LCO has identified five broad areas in which Ontario’s current approach can be strengthened.

1.  Building Accommodation into Approaches to Legal Capacity

The legal concept of the duty to accommodate can provide some assistance with strengthening the ability of Ontario law to both promote autonomy and appropriately allocate legal accountability.

The human rights principle of accommodation is well recognized in Ontario law, most clearly as a statutory entitlement in the Ontario Human Rights Code.86 The duty to accommodate applies also to legal capacity and decision-making laws. [87]

Summary of Relevant Provisions of the Ontario Human Rights Code

Section 17(1): a person’s rights are not contravened if the only reason they have been denied the right is because they cannot fulfil the essential duties or requirements related to the exercise of the right because of disability.

Section 17(2): there is a duty to accommodate before finding that a person is incapable of fulfilling an essential duty or requirement due to disability. This applies in respect of services, employment, housing accommodation, contracts and vocational services.

Section 11: dealing with constructive discrimination, this section addresses the duty to accommodate for all prohibited grounds, including age or disability.

Section 47(2): the Code has primacy over other legislation unless there is a specific legislative exemption.

Legal Capacity, the Duty to Accommodate and the Provision of Services

Impairments in decision-making abilities disproportionately affect persons with particular types of disabilities, such as intellectual, mental health or cognitive disabilities. As a result, the provision of services to those persons raise human rights issues and questions regarding the duty to accommodate. That said, the specific content of this duty is far from clear.

The LCO has not identified any specific caselaw, policy guidance or detailed academic analysis of the application of the duty to accommodate to the use of legal capacity tests by service providers. It is not clear in what circumstances the application of a legal capacity test by service providers may be justified within the framework of the Code (or potentially, for some service providers, under the Charter), or what the nature, extent and limits of a duty to accommodate might be.

In its Policy on Preventing Discrimination on the Basis of Mental Health Disabilities and Addictions, the Ontario Human Rights Commission stated:

Before determining that a person lacks capacity, an organization, assessment body, evaluator, etc. has a duty to explore accommodation options to the point of undue hardship. This is part of the procedural duty to accommodate under the Code. Accommodation may mean modifying or waiving rules, requirements, standards or practices, as appropriate, to allow someone with a psychosocial disability to access the service equitably, unless this causes undue hardship.[88]

Consistent with the discussion in this Chapter, it is the LCO’s view that legal capacity may be necessary for the receipt of services in at least some circumstances. It is also the LCO’s view that a human rights analysis should be applied to ensure that requirements for legal capacity are not imposed inappropriately or unnecessarily, and that where legal capacity is necessary for the receipt of a service, accommodations should be provided to assist individuals to meet that requirement where possible.

However, in the absence of caselaw or policy guidance, the scope and procedural application of this duty to accommodate is unclear. The Royal College of Dental Surgeons commented in its submission,

Dentists and other treatment providers need to understand whether they will be required to inform patients who apparently lack legal capacity of the duty to accommodate or if the patient or patient’s substitute decision-maker must request accommodation.

Many health care providers will require education about the specific accommodations they will be expected to provide. Similarly, many dentists will require guidance about what constitutes undue hardship in the various settings where dentistry is practiced….

If this recommendation goes forward, RCDSO, in consultation with its members, will be required to establish guidelines and/or policies in this area. Defining reasonable accommodations for persons of questionable capacity throughout various health care services will be a substantial undertaking.[89]

 

At minimum, the duty to accommodate likely involves a requirement on service providers to accommodate, for example, through methods of communication, or the timing or environment surrounding the service, where such accommodation is necessary for the individual to demonstrate their ability to understand and appreciate the requisite matters and therefore to receive the service, and where such accommodation does not amount to undue hardship. However, more detailed and specific guidance on these points would be helpful to service providers.

A submission from Communications Disabilities Access Canada (CDAC) emphasized the barriers that persons with communication disabilities may face when attempting to access services or facing an assessment, including underestimates of capacity to make decisions, a tendency to inappropriately defer to family members and personal support staff, and undervaluation of their quality of life and right to decisional autonomy. CDAC points out that a lack of training or experience with accessible communication technologies and methodologies is a widespread problem, and that greater emphasis should be placed on provision of appropriate and expert communication assistance where required. CDAC argues that such assistance is an indispensable form of accommodation.[90]

Further to the discussion earlier in this Chapter, and as a separate type of accommodation, where explanations and assistance from a trusted person enable an individual to meet the test for legal capacity, these may also be appropriate accommodations. This type of accommodation for the decision-making process itself must be carefully distinguished from accommodations for communications needs.

Several stakeholders expressed concerns about situations where one person is essentially “speaking for” the individual who requires accommodation, with no way for an observer to verify that the views expressed are in fact those of the individual his or herself.

From discussions with a range of stakeholders and individuals during the consultations, it appears that service providers frequently provided these types of informal accommodations for individuals whose legal capacity was unclear. The Canadian Bankers Association, in its submission to the LCO, commented that in the banking context, there is currently an informal supported decision-making model that works well, and suggested that formalization might inadvertently undermine these informal accommodations.91 However, as was noted in Chapter 2, there is a strong trend, across all sectors, towards increasing formality and a restrictive approach towards legal capacity issues.

In providing accommodations related to legal capacity, attention must be paid to linguistic and cultural diversity. Language and culture may be associated with the Code grounds of ethnic origin, ancestry or place of origin. Cultural differences or linguistic barriers may interfere with a service provider’s assessments of an individual’s ability to understand or process information, and thus of their “legal capacity”. Accommodations may include interpretation or the provision of culturally sensitive assessments.

The LCO is sympathetic towards the confusion that service providers may experience in this difficult area, and believes that a clear statement of the nature of the duty to accommodate in this area would be of benefit to service providers, to individuals, and their families. Issues that would be helpful to clarify include the meaning of the “essential duty or requirement” in this context, procedural duties of service providers and those seeking accommodation in various settings, and the types of accommodations that may be considered.

Clarification could be provided in several ways.

  • Legal capacity, decision-making and guardianship laws could include provisions regarding the duty to accommoda This would enable guidance to be specifically tailored to this context and integrated with other aspects of the law. One drawback to this approach would be the development of a body of interpretation and caselaw separate from the main body of human rights law in the province of Ontario.
  • Clarity could be created through regulations under the Ontario Human Rights Code. This would be similar to the use of regulations to provide guidance to landlords about the types of information that could be sought in a rental application.92 It should be noted that banks fall under the federal human rights statute, and so would not be captured by such a regulation. As well, some service providers may fall within the ambit of the Charter of Rights and Freedoms, so that the duty to accommodate is also raised within that context and that jurisprudence.
  • The Ontario Human Rights Commission (OHRC) could create specific guidelines on this issue, pursuant to its powers under section 30 of the Code. Such policies or guidelines have persuasive power, but are not specifically Section 45.5 of the Code states that the Human Rights Tribunal of Ontario (HRTO) may consider policies approved by the OHRC in a human rights proceeding before it. Where a party or an intervener in a proceeding requests it, the HRTO shall consider an OHRC policy. Section 45.6 of the Code states that if a final decision or order of the HRTO is not consistent with an OHRC policy, in a case where the OHRC was either a party or an intervener, the OHRC may apply to the HRTO to have the HRTO state a case to the Divisional Court to address this inconsistency.

Irrespective of the option or approach taken, the LCO strongly recommends that further consultation be conducted with all affected parties, so as to be better able to provide clear and practical guidance for the range of contexts and constraints in which these issues arise.

THE LCO RECOMMENDS:

3: In order to clarify that a person has legal capacity where the test can be met with appropriate accommodations and to assist service providers in providing such accommodations, the Government of Ontario:

a) define the scope and content of the human rights duty to accommodate in this area of the law, as it applies to service providers,

b) and in doing so, consult broadly with individuals; community agencies; a wide range of service providers, including in the health, financial and private sectors; and other key stakeholders.

The Duty to Accommodate and the Assessment of Capacity

In addition to the clearly Codeaffiliated duty to accommodate with respect to legal capacity on the part of service providers, there may be a broader application of the general concept of the duty to accommodate to the concept of legal capacity itself, and more specifically to assessments of capacity. The Code is not straightforwardly read as applying to such situations: the assessment of capacity with respect to property, personal care or the provision of treatment does not necessarily appear to itself be the provision of a service, although as described above, it may be a required step for accessing a service.

However, separate from an analysis of the specific duties under the Code, the broad human rights concept of accommodation may assist in making the law and practice of legal capacity and assessments most consistent with human rights. From this viewpoint, if an individual is able to meet the test for legal capacity with the provision of appropriate accommodations, and the provision of those accommodations does not amount to undue hardship, then not only must those accommodations be provided, but the test for legal capacity should be considered to have been met on an equal basis with those who have not required accommodations.

To some degree, this is implicit in the emphasis in the legislation on legal capacity residing in the ability to understand and appreciate, rather than actual understanding or appreciation. A person with aphasia that affects the ability to receive language, for example, may not be able to understand the risks and benefits of a flu shot when presented in a dense written document, but may be able to do so if appropriate communication approaches are applied. However, in practice, without accommodations, it may be difficult to identify the existence of the ability.

The Code also prohibits discrimination on the basis of ancestry, ethnic origin, place of origin and race, grounds that may be associated with language and culture.93 This is a reminder of the importance of ensuring that assessments of capacity are not distorted by linguistic barriers or cultural misunderstandings. For a meaningful assessment of legal capacity to take place, it may be necessary to employ linguistic or cultural interpretation, to avoid, for example, mistaking a culturally influenced behaviour for evidence of a lack of ability to understand or appreciate the issue at hand.

In this context, the principle of accommodation should be understood broadly as responding to a range of circumstances and needs that may obscure the abilities of individuals, whether listed in the Human Rights Code or not.

Many stakeholders emphasized this point. Particular emphasis was placed on the implications of Ontario’s linguistic and cultural diversity. For example, a stakeholder consultation held by the City of Toronto in response to the Interim Report emphasized that “language proficiencies, literacy, ability to focus, etc., should be considered as barriers to capacity assessment, not as indicators of incapacity”.94 These stakeholders identified a number of accommodations and supports that should be made available during the assessment process, including appropriate translation services and literacy supports, and the use of culturally appropriate language. That is, accommodations related to the assessments of capacity should also take into account other aspects of diversity.

Finding that a person has the ability to understand and appreciate when accommodated, does not mean that they will have supports necessary to make decisions when they arise. For that reason, it is important that an approach to legal capacity that incorporates the concept of accommodation extend both to the assessment process and to service providers, as described above. This is particularly true in circumstances where it is the service provider who is carrying out the formal or informal assessment (for example, the provision of treatment).

This approach is incorporated to some degree into the Guidelines for the Conduct of Assessments of Capacity, created by the Ministry of the Attorney General as mandatory guidance for conducting of Capacity Assessments regarding the management of property or personal care by Capacity Assessors under the Substitute Decisions Act, 1992. For example, the Guidelines require Capacity Assessors to ask their questions “in a way that accommodate[s] the person’s culture, vocabulary, level of education and modality of communication”, and specifically note,

Cultural diversity of the elderly in Ontario is an important issue. Many are first generation Canadians whose first language is not English or French. Cultural norms and traditions may be very different and have a profound influence on day-to-day life. [95]

The Guidelines provide detailed guidance on accommodating the needs of specific populations, such as older persons, persons with psychiatric disabilities, persons with intellectual disabilities and those with focal neurological disorders.96 Many expert stakeholders believe that this accommodation approach is implicit in Ontario’s approach to legal capacity. It is not clear, however, that this approach is well understand across contexts or is consistently implemented.

In conclusion, the LCO believes that it should be clearly understood that legal capacity exists where the test for capacity can be met by the individual with the provision of appropriate supports and accommodations short of undue hardship. Accommodations may include alternative methods of communication, extra time, adjustments for time of day or environment, or the assistance of a trusted person who can provide explanations in a manner that the individual can understand. They may also include accommodations related to language, culture or other areas where special needs may affect the assessment process.

THE LCO RECOMMENDS:

4: The Government of Ontario amend the Health Care Consent Act, 1996 and Substitute Decisions Act, 1992 to clarify

a) that legal capacity exists where the individual can meet the test for capacity with appropriate accommodations, and,

b) the requirement that assessments of capacity be carried out in accordance with the approach to accommodation developed under domestic human rights law

2.  Strengthening Decision-making Practices

A primary goal of legislation in this area of the law should be the promotion of autonomy-enhancing decision-making practices. A number of provisions in the SDA aim to promote just such an approach, including the requirements for SDMs to:

  • encourage the participation of the individual in the decision-making process, to the best of his or her ability;
  • foster regular contact between the individual and supportive family members and friends;
  • consult from time to time with other supportive persons who are in contact with the individual; and
  • seek to foster the person’s independen[97]

The SDA also provides reasonably clear guidance as to the basis on which SDMs are to reach decisions. In the case of personal care decisions, the SDM must act in accordance with the individual’s prior capable wishes where known (and must be diligent in ascertaining such wishes), and where there are no prior capable wishes, to consider the values, beliefs and (if ascertainable) the current wishes of the individual, as well as the individual’s quality of life.[98] The personal care SDM must also choose the least restrictive and intrusive course of action that is available and appropriate in the circumstances.[99] Similarly, the HCCA includes clear direction for SDMs making decisions related to treatment or admission to long-term care to take into account the persons prior capable wishes, and where there are no such wishes, factors including the person’s wishes, and their values and beliefs.[100]

In the LCO’s view, Ontario’s statutory regime regarding decision-making processes is broadly consistent both with the Framework principles and with the general vision and objectives of many proponents of supported decision-making. The LCO does not regard the language of the HCCA or in the SDA respecting personal care decisions to be significantly inconsistent with the “best interpretation of will and preference” approach put forward in the General Comment and in some submissions to the LCO. While the Ontario’s statutory language in these cases might be somewhat different, the aim is harmonious, although of course it must be understood in its context, in which the ultimate decision does rest with the SDM.

For the most part, the general role and principles related to substitute decision- making with regards to personal care are clear and appropriate, although there are concerns regarding widespread misunderstandings of the role of personal care SDMs. One common and troubling misunderstanding, for example, is the belief that the personal care SDM has a broad authority to restrict access to the individual. It is not uncommon for an adult child to restrict or attempt to restrict access to the parent by a sibling, or a parent to attempt to regulate the romantic life of an adult child, in contravention of the wishes of the person for whom they are SDM, because of a personal conflict or dislike. The LCO also heard that long-term care or retirement home personnel may inappropriately facilitate such denials of access.

In respect of property management decisions, the SDA sets out a hierarchical list of priorities that should guide property decisions, with first priority given to expenditures that are reasonably necessary for the individual’s education, support and care, followed by those that are reasonably necessary to meet the needs of the individual’s dependents, and finally, the satisfaction of other legal obligations. The SDA allows for gifts, loans and charitable donations, albeit under limited conditions.[101] In general, the SDM for property must exercise his or her powers “for the incapable person’s benefit”, including taking into account the individual’s personal comfort and wellbeing, and must manage the property in a manner consistent with personal care decisions.[102]

While the emphasis on managing property for the person’s benefit and priorizing personal care decisions is positive, this is not as clearly harmonious with the values and preferences approach to decision-making in the provisions regarding personal care. While SDA does not refer to a “best interests” type of decision-making approach, it does restrict options and essentially requires SDMs to prevent individuals from seriously mismanaging their money, with a view to ensuring that the benefit of the property primarily accrues to the individual. This could certainly be viewed as a paternalistic approach: in contrast, persons who have not been determined to lack legal capacity are permitted to make foolish or risky decisions that will result in their own impoverishment.

Notwithstanding these criticisms, the LCO believes that it is reasonable to maintain some objective limitations on property decisions for persons who lack legal capacity. A legal framework in which the sole criterion for property decisions was the “best interpretation of will and preference” of the individual would make it far too easy for unscrupulous individuals to carry out financial abuse without repercussions.

However, the LCO also believes that it would be beneficial for the SDA to make clear that, within the existing priorities, SDM decisions related to property management should be made keeping in mind the life goals and values of the individual, either as expressed while capable, or as demonstrated by the individual who has been found legally incapable. Specifically, in allocating expenditures for the person’s support, education and care, the SDM should consider both the prior expressed wishes and the current values and goals of the individual. An important qualification to this approach is that the LCO does not believe that this should extend to allocation of resources to the needs of dependents: it is dependents who will often be acting for the individual, and to do so would raise concerns regarding undue influence and conflicts of interest.

Further, the LCO has heard many concerns throughout the consultation that the property management provisions of the SDA are being misunderstood and misused as a means of structuring the incapable person’s finances in such a way as to maximize the ultimate estate and minimize taxes. Some of the most protracted disputes under the SDA might be characterized as preliminary estate litigation.

Financial services providers frequently commented that SDMs appear to take literally the provisions of the SDA that an SDM for property “has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will”,103 without regard to the purposes of the legislation, arguing that they should therefore be entitled to outright convert the financial assets or structure them for the benefit of the estate rather than the person. These are serious concerns that any legal framework must consider thoughtfully.

The LCO has also heard concerns that substitute decision-makers for property may use their authority in this arena to inappropriately exercise control over the personal choices of the individual – for example, refusing to pay for telephone or internet to cut off relationships of which the SDM disapproves, even if the individual does not lack capacity with respect to these kinds of decisions.

THE LCO RECOMMENDS:

5: The Government of Ontario amend the statutory requirements for decision- making practices related to property management to:

a) clarify that the purpose of substitute decision-making for persons with respect to property is to enable the necessary decisions to provide for the well-being and quality of life of the person, and to meet the financial commitments necessary enable the person to meet those ends; and

b) while retaining the existing list of priorities for property expenditure, require that when resources are allocated to the first priority of the individual’s support, education and care, that consideration be given to prior capable wishes regarding the individual’s well-being and quality of life, or where these have not been expressed, to the values and wishes currently held.

The vast majority of those who currently provide assistance with decision-making to persons with impaired decision-making abilities are family members, who are carrying out this challenging and often complex role with very little in the way of supports or information. This is true both of those fulfilling this role within a formal arrangement under the HCCA or SDA, and those carrying out these responsibilities informally. Both research104 and the LCO’s consultations demonstrate the wide range of approaches which families bring to this role.

Providing families and individuals with access to training and education on legally and ethically appropriate decision-making practices can be a very practical means of promoting autonomy-enhancing approaches in this area of the law.[105]

There are a number of promising examples in this area. An Israeli pilot project involved 22 individuals who were diagnosed with autism, had psychosocial disabilities, had intellectual disabilities, or had physical or communication disabilities. Most were under guardianship. They were paired with trained supporters, two of whom were salaried professionals and the remainder who were volunteers. The supporters regularly met with the individuals and guardians over the course of the year to identify goals, develop work plans, and to take steps to implement those plans; the supporters also received ongoing training and support throughout the year. The overall aim was to increase the independence with which the individuals were able to make decisions. The results of the pilot project showed a range of changes in the participants in the project, both large and small, including changes in decision- making skills and awareness, self-advocacy, self-confidence and relationships with guardians. Supporters noted particular challenges in providing appropriate supports to persons with fluctuating capacity.[106]

This pilot, and others in Australia, demonstrated that there is value in supportive decision-making practices, in terms of increasing decision-making abilities, self- confidence and positive attitudes. Many of the Australian pilot projects emphasized the challenges in finding supporters who had the time, resources and relationships to carry out this role.[107] It was clear in all of the pilot projects that the facilitators played an essential role in the success of the projects. It appeared from the some projects that there were particular needs and challenges for persons with psycho-social disabilities: this may be an important area for further work. [108]

These pilot projects make clear that developing and supporting autonomy enhancing decision-making practices may require a considerable shift and intensive supports for families and individuals directly affected. That is, simply adjusting the legislative framework may have relatively little impact on the lived experience of persons with disabilities, without an accompanying adjustment in practices on the ground. This adjustment in practice may be more challenging than legislative reform.

The LCO therefore believes that it is important to develop strong, evidence-based models for supporting good decision-making practices, and therefore proposes the development of pilot projects in this area. The pilots should explore autonomy- enhancing approaches for various communities, including for persons with dementia, persons with mental health disabilities, those with acquired brain injuries, those with intellectual and developmental disabilities, and other affected groups. These projects should aim to develop evidence for good practice, as well as developing tools and resources that can assist families, persons directly affected and others.

THE LCO RECOMMENDS:

6: The Government of Ontario

a) develop pilot projects that evaluate autonomy-enhancing approaches to decision-making among persons with impaired decision-making abilities and their families;

b) in developing these pilot projects, work in partnership with a broad array of stakeholders and account for the specific needs of a range of communities, including persons with a range of disabilities and decision-making needs, those who are socially isolated as well as those with existing networks, and members of various linguistic and cultural communities; and

c) broadly circulate the results of these pilot projects.

3. Support Authorizations

  • The Discussion Paper outlines in detail how supported decision-making has been implemented in Canada in the form of representation agreements and supported decision-making authorizations in British Columbia, Alberta and the Yukon.[109]

As noted earlier, there are several Canadian examples of support authorizations.

The Canadian Centre for Elder Law conducted a review of supported decision- making laws in the Western Canadian jurisdictions as part of a commissioned paper for the LCO. While interviewees who were participating in representation agreements were generally positive about the experience, experts within the system had a more mixed response. Lawyers continue to have concerns about lack of clarity and ease of misuse, and others pointed to improper usage of representation agreements as a “more palatable form of substitute decision-making”. Third parties find these arrangements unclear and expressed concerned about what these agreements mean for responsibility and liability.[110]

British Columbia’s representation agreements employ a non-cognitive test for their creation. As a result, they are available to a much wider segment of the population than any other personal appointment process in Canada. The ability of a representative to act either to support decision-making or to make decisions on the individual’s behalf makes the instrument either more flexible or more ambiguous, depending on one’s point of view.

Alberta’s supported decision-making authorizations represent a narrower approach. They are restricted to personal care decisions and supporters are prohibited from making decisions on behalf of an adult. Decisions made or communicated with assistance are considered a decision of the adult. To enter into a supported decision- making authorization, the individual must understand the nature and effect of the document, which restricts these arrangements to individuals with stronger decision- making abilities, generally those on the borderlines of what would be required for independent legal capacity.[111] The authorizations retain validity so long as the creator retains the capacity necessary to create them – that is, they do not endure if capacity diminishes. These authorizations are still very new, as the legislation only came into force in 2009. However, early information indicates a very positive response, with no widespread concerns regarding abuse or misuse.[112]

Another approach was recommended by the LCO in its project on Capacity and Legal Representation for the Federal RDSP, which ultimately recommended that the Government of Ontario implement a process that would enable adults to personally appoint an “RDSP Legal Representative” to open or manage funds in an RDSP, where there are concerns about their capacity to enter into an RDSP arrangement with a financial institution.

The LCO does not favour the broad representation agreement approach adopted in British Columbia: the ability of those appointed to act as either substitutes or supporters is liable to abuse, as well as producing confusion. The Alberta approach of support authorizations provides a more promising model for overall reform to decision-making approaches.

The LCO believes that support authorizations can, if properly structured, provide an accessible means of addressing the needs of some persons who currently have no alternatives to guardianship. Identifying and developing positive decision-making practices, as suggested in Recommendation 6, may maximize the accessibility of these instruments.

In structuring such arrangements, it is important to be sensitive to the risks of abuse identified by a number of stakeholders, as well as to the concerns regarding clarity and legal accountability.

The LCO’s analysis was informed by the perspectives of the many individuals and groups who commented on this issue in our consultations. For example, the City of Toronto’s System Reform Table on Vulnerability in Toronto organized a stakeholder consultation that brought together 65 individuals representing multiple service and advocacy organizations. The resulting Stakeholder Consultation Report commented that,

The Support Authorization concept is a welcome innovation, if the risks are managed. It could be very valuable in protecting autonomy for many people. It could save money for the health care system. It brings a social disability lens to the work and the legislation. It is not a solution for everyone, but it could be a very important enhancement to the current situation. In some respects, this is how a Power of Attorney is being used, but this would formalize the approach, and in some instances reduce the need to assign POA.

Managing risks to the client and the person/organization providing support. These need to be managed, by formalizing a robust monitoring system and by establishing limited liability for the person providing support. Criteria should be created and applied to determine who can and cannot be a support person
… A very clear definition of support will be needed as part of this formalization process. [113]

The LCO believes that the risk of abuse and uncertainty in supported decision- making arrangements can be mitigated by the following steps

Set the threshold for legal capacity to create an authorization at an appropriate level

To enter into a support authorization, an individual should understand the nature of these arrangements, and that they entail some risk. Support authorizations are not an appropriate arrangement for persons with very significant impairments to their decision-making abilities: in those situations, higher levels of responsibility and accountability should be accorded to the arrangement.

In these circumstances, the LCO therefore proposes a test that draws on the common- law test of capacity to grant a power of attorney: the ability to understand and appreciate the nature of the authorization. This is consistent with the primary approach recommended in the LCO’s project on Capacity and Legal Representation for the Federal RDSP.[114]

Focus on more concrete, day-to-day or routine decisions

The LCO does not believe that support authorizations are appropriate, at least initially, for situations where significant assets or very complex issues are at stake, both because these circumstances may provide incentives to abuse and because the potential risks to those supported are high. The LCO believes support authorizations are more appropriately targeted to more routine decisions, for both property and personal care.

The LCO believes that these situations of greater risk may be more appropriately dealt with through the network decision-making structures proposed below, or with the legal accountability structures imposed through substitute decision-making.

While some jurisdictions allow support authorizations only for personal care decisions, the LCO believes that support authorizations should also extend to routine decisions related to property, particularly given the ways in which decisions related to property and personal care may intertwine. Routine decisions may include, for example, payment of bills, receiving and depositing pension and other income, making purchases for day-to-day needs, or making decisions about daily activities or diet. In identifying day-to-day decisions, the approach under British Columbia’s Representation Agreement Act, in which specific types of included decisions are spelled out by regulation, may be a useful approach.

Allowing support authorizations in day-to-day matters would have significant, beneficial consequences. For many individuals directly affected by this area of the law, most, if not all, decisions fall into this category. This approach, when combined with the LCO’s recommendation in Chapter 8 regarding the ability to appoint a decision- making representative for single decisions, could potentially allow a large number of individuals to avoid guardianship. This would be a significant advancement for the rights and autonomy of individuals in these circumstances.

Some stakeholders may be disappointed with this approach. For example, the Coalition on Alternatives to Guardianship, in its response to the Interim Report, argued that it was necessary to expand support authorizations to a full range of decisions. The Coalition proposed a number of safeguards to support this recommendation.

  • For decisions that fundamentally affect personal integrity or human dignity, such as non-medically indicated sterilization, application to the Tribunal would be required;
  • Supporters would be prohibited from supporting an individual in a decision that is likely to place the adult in a grave and imminent risk of a situation of serious adverse effects.

The LCO sees the first suggestion as being similar in effect to single decision appointments proposed in Chapter 8, with the difference that in essence, it would be the Tribunal making the ultimate decision, rather than the trusted person appointed by the Tribunal. The LCO believes that it is preferable that such decisions be made by the trusted person, based on their knowledge of the individual and their binding duties as set out by statute, rather than by the Tribunal itself, which does not have intimate knowledge of the person.

The LCO has carefully considered the second proposal, but is concerned that it would lead to confusion and lack of clarity. Who would make the assessment as to whether such a grave and imminent risk existed, and what would be the liability of the supporter if a correct assessment of risk was not made? How would third parties, such as financial institutions, know when the supporter had stepped aside, and what would be the responsibility of third parties in such an instance? Would the supported person be at liberty to seek another supporter who had a different risk assessment? Further, such a situation would run the risk of leaving the supported person unexpectedly without the ability to make a necessary decision, possibly in a situation of some urgency. Finally, this proposal seems to the LCO to be in some tension with the underlying premise of supported decision-making, which is to allow the supported person to assume risks and make unwise decisions on an equal basis with others.

On balance, the LCO believes that the better alternative is to restrict authorizations to day-to-day decisions at the present time. Over time, experience and evidence may demonstrate that their scope should be expanded.

Include clear duties for supporters, to address concerns related to misuse or abuse of these arrangements

Essentially, the role of the supporter is to assist in the decision-making process. Where the duties of supporters have been enumerated in legislation in other jurisdictions, they focus on the roles and responsibilities of the supporter in the decision-making process, rather than on setting benchmarks for the decision. Supported decision-making arrangements in other jurisdictions include the following responsibilities for supporters:

  • accessing or obtaining information, or assisting the individual in doing so;[115]
  • assisting the person in the decision-making process;[116]
  • communicating or assisting the person in communicating the decision to others;[117]
  • endeavouring to ensure that the decision is implemented;[118]
  • advising the individual by providing relevant information and explanations;[119] and
  • ascertaining the wishes of the individual.[120]

The LCO agrees that any legislative or legal arrangements in this area should include clear duties and responsibilities for supporters. This would reduce some of the concerns that have been expressed regarding accountability and the potential for abuse in these types of arrangements.

It makes sense to harmonize some of the duties of supporters with those of POAs, including responsibilities to act honestly and in good faith, to maintain records, and to engage with trusted family and friends. Because supported decision-making has its foundations in a trusting relationship between the parties, a duty to maintain such a relationship is important.

It may also be useful for legislation to identify who is and is not eligible to act as a supporter: new Irish legislation on support arrangements, for example, excludes among others persons who have a criminal record, or who are undischarged bankrupts.[121]

Include monitoring arrangements

Like powers of attorney, support authorizations would be personal appointments. As is discussed in Chapter 6, these types of appointments, while accessible and flexible, also carry with them some risks of abuse or misuse. Some of the considerations and recommendations in that Chapter are therefore also applicable to support authorizations. In particular, Statements of Commitment and Monitors may be useful, with appropriate modifications, in encouraging understanding of roles and responsibilities, and promoting transparency and accountability.

In integrating these elements into a support authorization regime, it is helpful to keep in mind the differences between these instruments and powers of attorney. Because support arrangements focus on process rather than outcomes, it is more difficult to determine whether a supporter is in fact fulfilling his or her duties, as compared to an attorney appointed under a POA. As well, unlike POAs, which may endure even as the decision-making abilities of the grantor decline, support authorizations are intended for persons who are ultimately able to make their own decisions, with the assistance provided by their supporters.

Given these differences, it is the LCO’s view that a monitor should be mandatory. The LCO further believes that the monitor should be a person who is not a family member and who does not have a conflict of interest for the decision in question. The considerations set out in Chapter 10 regarding potential roles for professionals and community agencies as SDMs should also apply to monitors. It is also the view of the LCO that the Notices of Attorney Acting proposed in Chapter 6 are not necessary or appropriate in the context of support authorizations.

Ensure clarity regarding accountability for decisions

The LCO believes that any new model of support authorizations must specifically acknowledge that decisions made under these arrangements are the responsibility of the supported person. Supporters would be responsible for complying with their statutory responsibilities, as suggested above. The provisions in Alberta and Yukon’s statutes clarifying that third parties need not recognize a decision as that of the supported person if there are reasonable grounds to believe that there has been fraud, misrepresentation or undue influence by the supporter122 are a practical measure for combatting abuse, and would be useful to adopt in Ontario.

Drafting legislation for support authorizations will be complex and the LCO does not propose to recommend specific language. For example, the legislation will have to consider execution requirements, the processes associated with withdrawal by a supporter, termination of a support authorization by the creator, and the remedies available to the parties to a support authorization, in case of dispute or allegations of misuse. The LCO believes that, in general, technical processes and requirements should, to the degree possible, be harmonized with the long-standing requirements for powers of attorney, as they may be amended in response to the LCO’s proposals.

Mechanisms for training and education of would-be supporters, as well as for individuals directly affected and for professionals who will be required to advise on or interact with these documents will be crucial to the success of this initiative. Training and education issues are considered in Chapter 10.

It will also be important to establish an appropriate process for resolving disputes and enforcing rights in relation to support authorizations. At minimum, mechanisms must be put into place to enable meaningful oversight of compliance by a supporter with statutory duties and for resolving disputes regarding the validity or scope of support authorizations.

  • Chapter 7 makes proposals for reform to Ontario’s dispute resolution

THE LCO RECOMMENDS:

7: The Government of Ontario enact legislation or amend the Substitute Decisions Act, 1992 to enable individuals to enter into support authorizations with the following purposes and characteristics:

a) The purpose of the authorizations would be to enable individuals to appoint one or more persons to provide assistance with decision-making;

b) The test for legal capacity to enter into these authorizations would require the grantor to have the ability to understand and appreciate the nature of the agreement;

c) These authorizations would be created through a standard and mandatory form;

d) Through a support authorization, the individual would be able to receive assistance with day-to-day, routine decisions related to personal care and property;

e) Decisions made through such an appointment would be the decision of the supported person; however, a third party may refuse to recognize a decision or decisions as being that of the supported person if there are reasonable grounds to believe that there has been fraud, misrepresentation or undue influence by the supporter;

f) Support authorizations must include a monitor who is not a member of supported person’s family and who is not in a position of conflict of interest, with duties and powers as set out in Recommendation 26, and supporters must complete a Statement of Commitment, as described in Recommendation 25;

g) The duties of supporters appointed under such authorizations would include the following:

i. maintaining the confidentiality of information received through the support authorization;

ii. maintaining a personal relationship with the individual creating the authorization;

iii. keeping records with regards to their role;

iv. acting diligently, honestly and in good faith;

v. engaging with trusted family and friends; and

vi. acting in accordance with the aim of supporting the individual to make their own decisions;

h) Persons appointed under such authorizations would have the following responsibilities as required:

i. gather information on behalf of the individual or to assist the individual in doing so;

ii. assist the individual in the decision-making process, including by providing relevant information and explanations;

iii. assist with the communication of decisions; and

iv. endeavour to ensure that the decision is implemented.

4. Network Decision-making

Many Canadians with disabilities, particularly those with intellectual or developmental disabilities, currently use personal support networks of various types to assist with social inclusion, manage funding and services, or to support person- directed planning.[123] Some of these arrangements are completely informal. Others, such as those adopting British Columbia’s Vela Microboard model, are thoroughly formalized, using the legal tool of incorporation to receive funds on behalf of an individual, arrange services and act as an employer of record. Some of these networks may be considered to be, at least to some extent, decision-making entities. Since these personal support networks have affiliations with the community living movement, as does the concept of supported decision-making, it is not surprising that some networks see themselves as providing decision-making supports for persons who might otherwise be determined to lack legal capacity.

It should be noted that few individuals currently have access to the kind of personal relationships and supports that are necessary to constitute a functioning network. During the LCO’s focus groups, parents of adult children with disabilities frequently referenced the concept of networks, and noted that their creation and maintenance was extremely difficult.

While personal networks raise many interesting ideas and opportunities, the LCO’s interest is related to their decision-making roles. There is relatively little research on the forms and usages of personal support networks. The LCO commissioned research on personal support networks in the fall of 2014.[124]

One theme to emerge from that research was that networks that engage in decision- making provide “something unique”:

[T]here is an apparent power to the group approach. Again and again, informants talked about something different, something that is added, by having a group of caring individuals who could bring a range of perspectives, check each others’ biases and assumptions and fill in for each other’s inevitable absences. Many spoke of the group approach as providing safety.[125]

The bringing together of a group of people with diverse skills and perspectives to support one individual offers not only some checks against abuse, but also a unique form of decision-making. It may be debated whether or not network decision-making “qualifies” as supported decision-making: where a network reaches a decision, it is not necessarily that of the individual alone, whether or not there is a declaration of incapacity involved. However, it can provide a process that is supportive of the individual, includes the person in the decision-making process, and respects his or her life goals and values.

Depending on its structure and implementation, network decision-making might be understood as a form of joint decision-making, similar in theory to the co-decision- making appointments available in Alberta and Saskatchewan. In these models, decision-making is ultimately understood as a shared activity, rather than resting ultimately in a single individual.

However, co-decision-making appointments, as they currently exist in Canada, are formal external appointments by the courts. By way of contrast, networks, at least in the microboard model, while requiring some significant formality to create, do not require a court application, and can be designed flexibly to meet particular needs.

The co-decision-making agreements in the new Irish legislation provide an interesting analogy. These are personal appointments, but require registration, notice to interested parties with an opportunity to object to the registration, regular review by the Director of the Decision Support Service, and regular reporting by the co- decision-maker.126

The available evidence suggests that network decision-making can work, and work well, for some individuals As a result, the LCO believes there is merit to formalizing or piloting network decision-making with the following characteristics:

  • It includes three or more individuals who share responsibilities, at least one of whom is not a family member.
  • It keeps the person for whom the network is formed at the centre, protecting and promoting his or her participation in the decision-making process, and adopting as its core purpose the realization of the individual’s values and life goals.
  • It maintains a group process with the aim of collectively supporting a process which advances the autonomy and the achievement of life goals for the individual at the centre of the network.

In practice, this model may apply to relatively few individuals, for the reasons discussed above.

In the long run, network decision-making could enable decisions on a broader range of issues than the LCO proposes be available through support authorizations. As a more formal process, with the inherent safeguards associated with multiple participants, there may be lower levels of risk associated with network decision- making.

The LCO believes that the microboard process provides a useful foundation. This model, which employs incorporation as a legal tool, has two particularly interesting aspects. One is that it can potentially provide decision-making supports in a way that does not necessarily require an assessment of legal capacity. The other is that incorporation provides a recognized and widely understood means of sharing legal responsibility and accountability within a group, as opposed to a single individual.

The decision-making entity is itself accountable, rather than any single member.

Microboards also have notable limitations. Incorporation adds to, rather than reduces legal complexity: few individuals would be able to manage the costs and regulatory requirements of setting up a legally incorporated decision-making network, and third

parties might find that it added to rather than reduced the challenges of identifying the authorization of an agreement or transaction. Further, it is not clear how well corporate accountability mechanisms would work in this particular context. As well, there is an uneasy pairing between corporate law and the ultimately private and personal nature of the decision-making at stake. There are symbolic as well as practical drawbacks.

The LCO believes that it may be possible to adapt the following elements of an incorporation model to the legal capacity and decision-making process:

  • A set of formal requirements for the network to identify and commit to, including:
    • the purposes for the network;
    • the principles for the operation of the network;
    • the processes through which the network fulfils its responsibilities;
    • record keeping requirements; and
    • the roles for individual members of the network;
  • A registration process through which the completion of foundational requirements is verified, together with basic annual filing requirement

There are clearly costs and complexities associated with the development of a network decision-making model; however, the LCO believes that the concept merits further examination, with a view towards implementation in law.

The Coalition on Alternatives to Guardianship has proposed external appointments of supporters for persons who would not have legal capacity to create support authorizations under the LCO’s proposal. It is the LCO’s view that networks decision-making could provide a more flexible and accessible alternative to substitute decision-making for situations where there are greater risks associated either with the extent of the individual’s decision-making impairment or the nature of the decisions to be made.

THE LCO RECOMMENDS:

8: The Government of Ontario conduct further research and consultation towards the development of a statutory legal framework for network decision-making. This framework would:

  1. permit formally established networks of multiple individuals including non- family members, to work collectively to facilitate decision-making for individuals who may not meet current tests for legal capacity;
  2. identify formal requirements for the creation of networks, including accountability documents, decision-making processes and record-keeping requirements;
  3. create a registration process for networks as well as annual filing requirements; and
  4. determine the legal authority and accountability of these networks, including signing authority

5. Monitoring, Evaluation and Evolution

The LCO has stressed the importance of ongoing monitoring and evaluation to inform evidence-based law reform in this area, as emphasized in Recommendation 2.

Active monitoring and evaluation are particularly important with respect to issues related to support authorizations and network decision-making, due to the relative lack of evidence informing the discussion of these issues.

The LCO also believes that it is important to actively monitor developments in other jurisdictions. ARCH Disability Law Centre, in its 2016 submission, highlighted the importance of this cross-jurisdictional research:

Internationally, legal capacity is a rapidly developing area of law, study and practice. New approaches to capacity are emerging which are incompatible with our current test for legal capacity. Progressive realization of our CRPD obligations requires that Ontario leave room for implementing such new approaches, where these approaches strike an appropriate balance between promoting autonomy, apportioning responsibility for decision-making, and safeguarding against abuse.

ARCH proposes that the LCO recommend that Ontario develop and commit to a plan of on-going study and monitoring of developments in legal capacity law and practice. Such a plan should include a commitment to implement new approaches to legal capacity that are appropriate for Ontario. The plan should establish measurable goals, timelines, and create a process for meaningful consultation with persons with capacity issues and other stakeholders. Progressive realization of our CRPD obligations requires no less.

THE LCO RECOMMENDS

9: The Government of Ontario commit to an ongoing program of research and evaluation of national and international developments in positive decision-making practices and legal and social frameworks for capacity and decision-making, with a view to identifying and implementing approaches that:

a) promote the Framework principles;

b) address considerations related to appropriate legal accountability; and

c) address the needs of third parties for clarity and certainty

J.  SUMMARY

The concept of legal capacity lies at the heart of this area of the law, and debates about approaches to it raise foundational questions.

There are limitations and challenges in any approach to legal capacity and decision- making, as any approach must grapple with difficult issues related to risk, autonomy, accountability and the nature of what we consider to be “decision-making”. No approach can solve all of the underlying issues: all will have shortcomings in one direction or another.

These issues are being explored and debated in many parts of the world. The discussions in Ontario are one part of a much larger conversation. Through this continued debate and exploration, practical knowledge about positive approaches will be developed over time. The LCO’s proposals are intended to take a progressive approach to the area, allowing for some implementation of these new approaches.

Experience with such law reforms may allow further steps to be taken at a later date.

In this Chapter, the LCO has recommended reforms to:

  • clarify and strengthen the duties of SDMs to base their decisions in the values, preferences and life goals of the individual affected, both through legislative amendments and by pilot projects aimed at identifying, developing and evaluating positive decision-making practices;
  • integrate the human rights concept of accommodation into the concept of legal capacity and clarify the duty of service providers and assessors to accommodate with respect to the legal capacity of persons to whom they provide services;
  • allow individuals to create support authorizations to enable them to obtain support from trusted individuals with respect to day-to-day issues;
  • work towards the creation of a statutory legal framework for decision-making networks; and
  • pursue ongoing study and evaluation of developments in this area of the

The LCO’s proposals in this Chapter must be understood in the context of the full range of the recommendations in this Final Report aimed at better promoting and protecting autonomy.

These proposed reforms represent practical steps towards strengthening the autonomy, participation and respect for dignity of persons with impaired decision- making abilities, while respecting concerns for security, and the need of service providers for clarity and accountability. When combined with the proposals in Chapter 8 for tailoring and diverting from guardianship, they have the potential to reduce the use of substitute decision-making in Ontario and more fully realize the policy goal underlying Ontario’s laws, of minimizing intervention. These proposals would, if implemented, both place Ontario in the forefront of law reform in the common-law world, and assist in building a foundation of evidence for further progress as appropriate.