A. INTRODUCTION AND BACKGROUND
Throughout the LCO’s consultations for this project, one of the dominant areas of concern has been effective access to the law, in order to resolve disputes, enforce rights and address concerns about abuse.
It should be kept in mind that effective access to the law will affect every other aspect of the legal capacity, decision-making and guardianship system. Lack of accessibility may create incentives for families to adopt riskier informal approaches or to attempt creative solutions to their problems which are not in harmony with the intent of the legislation, for individuals to abandon attempts to obtain their rights, or for parties with superior access to the resources necessary to navigate the system to misuse it for their own ends. Effective and appropriate mechanisms for dispute resolution and rights enforcement are therefore a priority for law reform attention.
Concerns regarding the appropriate implementation of the rights and responsibilities under the Health Care Consent Act, 1996 (HCCA) tend to focus on the quality of assessments of capacity under that Act, and on the appropriateness and effectiveness of procedural protections at the point of determinations of legal capacity, most particularly regarding rights information for persons found legally incapable under the HCCA. These concerns are dealt with at length in Chapter 5 of this Final Report. With respect to the operation of the Consent and Capacity Board (CCB), the sense is that overall, the flexibility of the HCCA appointment mechanisms and the existence of the CCB as an accessible tribunal providing speedy and relatively responsive adjudication, is an appropriate approach. Critiques of its operations tend to focus on the inherent tension between promoting therapeutic outcomes and upholding fundamental rights, the challenges it faces in meeting its mandates for timeliness and expertise, and the balance between achieving timely resolutions and supporting less adversarial approaches to dispute resolution.
There was a strong sense throughout the consultations that while mechanisms under the Substitute Decisions Act, 1992 (SDA) provide high quality adjudication, they are complex and difficult to access, and that as a result, the rights and responsibilities under the SDA are not realized as intended.
LEGAL CAPACIT Y, DECISION- MAKING AND GUARDIANSHIP
Overall, participants conveyed a message that significant reform in this area is warranted. All of the adjudicative processes under the SDA, including processes for appointment, variation and termination of guardianships, and the provisions for passings of accounts and seeking directions, are closely tied together, as are the administrative investigation processes under the mandate of the Public Guardian and Trustee (PGT). These will therefore all be addressed together in this Chapter, as mechanisms by which individuals access the law.
B. CURRENT ONTARIO LAW
Dispute resolution and rights enforcement related to legal capacity, decision-making and guardianship takes place in many venues in Ontario, including through internal institutional policies and procedures (for example, the Patient Advocacy Offices that exist in many hospitals), sectoral complaints mechanisms such as the Ombudsman for Banking Services and the formal complaints mechanisms available through the health regulatory colleges.
However, the core of Ontario’s dispute resolution and rights enforcement mechanisms for legal capacity and decision-making lies with the CCB, the Superior Court of Justice, and the “serious adverse effects” investigations process that lies with the PGT.
DISPUTE RESOLUTION AND RIGHTS ENFORCEMENT
The Roles of the CCB, Superior Court of Justice and PGT
Consent and Capacity Board (CCB)I
|• Review findings of incapacity, whether by
– a health professional with respect to treatment, 293
– an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home, 294
– a Capacity Assessor with respect to property that has resulted in a statutory guardianship; or
– a physician with authority to issue certificates of incapacity under the MHA resulting in statutory guardianship. 295
• Appoint a decision-making representative with respect to decisions to be made under the HCCA; 296
• Permission for an SDM to depart from the prior capable wishes of a person who lacks legal capacity; 297
• Determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made; 298
• Directions when the appropriate application of the HCCA with respect to a required decision is not clear; and 299
• Review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility and admission to a secure unit in a care facility (note that these latter provisions are not yet in force). 300
Note that the CCB also provides adjudication for issues under the Mental Health Act (MHA), the Personal Health Information Protection Act, 2004, and the Mandatory Blood Testing Act.
Superior Court of Justice
|• Appointments of guardians for property management and for personal care
• Applications for passings of account of either a guardian or an attorney for property
• Applications for directions on any question arising in connection with a guardianship or power of attorney
• Appeals from the decisions of the CCB
|Public Guardian and Trustee (PGT)||
• Duty to investigate any allegation that a person is incapable of managing property or personal care, and that serious adverse eﬀects may result
1. The Consent and Capacity Board
Caseload: The CCB has a large and growing caseload. In the 2015/2016 fiscal year, the CCB received 7200 applications and convened almost 4000 hearings across the province. In the past five years, applications have increased on average 6.5 per cent annually, and hearings have increased on average 10.5 per cent annually.301
In practice, the vast majority of the applications that the CCB addresses are reviews of determinations that a person is incapable with respect to treatment, or findings that an individual should be admitted or remain admitted at a psychiatric facility on an involuntary basis.302 In many ways, the CCB’s activities remain highly focused on mental health law, and this is reflected in the composition and culture of this tribunal.
Procedures: Members of the CCB may hear applications alone or in panels of three or five. Board members include lawyers, psychiatrists and other medical professionals, and public members. The CCB’s Rules of Practice take a broad approach to the admission of evidence: the Board may “admit any evidence relevant to the subject matter of the proceeding”, and may direct the form in which evidence is received.303 The legislation gives priority to expeditious resolutions: hearings must commence within seven days of an application and decisions rendered (and reasons provided to the parties) within one day of the conclusion of the hearing.304 The CCB does not have jurisdiction to inquire into or make a determination with respect to the constitutional validity of a provision of the HCCA or the accompanying regulations.305 Decisions of the CCB may be appealed to the Superior Court of Justice on questions of both fact and law.306
Supports: The effectiveness of the CCB is supported by the requirements for rights advice under the MHA, described in Chapter 5, and the widespread provision by Legal Aid Ontario (LAO) of counsel without cost for individuals whose rights are at issue before the CCB, as is detailed later in this Chapter.
2. The Role of the Ontario Superior Court of Justice
Caseload: There are no comprehensive figures available for the Court’s caseload for SDA matters. However, the numbers appears to be small, particularly compared to the work of the CCB or the overall caseload of the Court.
Most appointments of guardians are currently through the statutory guardianship process: the Ontario Superior Court of Justice currently appoints between 200 and 260 guardians per year.307 It is important to keep in mind that while appointments, variance and terminations of guardianship orders may be relatively straightforward, these orders may also be sought as part of broader disputes, in some cases involving abuse or misuse of funds.
There are no figures available regarding the Superior Court of Justice’s oversight functions in this area.
Remedial powers: The Court has broad remedial powers when addressing applications for directions or for the passing of accounts. Upon an application for directions, the Court may “give such directions as it considers to be for the benefit of the person and his or her dependents and consistent with this Act”.308 Upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian or terminate the guardianship.309
3. Investigations by the Public Guardian and Trustee
The PGT’s serious adverse effects mandate forms a significant aspect of the PGT’s role.310 The administrative complaints and investigation powers under the SDA are highly valued by stakeholders. It should be noted that the investigative function of the PGT is a significant advance on what is available in many other jurisdictions, which do not have similar administrative investigative processes specific to legal capacity and decision-making issues and instead rely entirely on criminal or civil judicial processes.
On the other hand, many jurisdictions do have “adult protection” legislation, which creates broad powers of intervention into the affairs of adults, whether they are legally capable or incapable. It is the LCO’s observation that some of the debate regarding the PGT’s complaint and investigation powers results either from a confusion with or a desire for such a broader regime. As noted earlier, the issue of adult protection legislation is outside the scope of this project.
Remedial powers: If the results of a serious adverse effects investigation reveal reasonable grounds to believe that a person is incapable and that serious adverse effects, as defined in the legislation, are or may be occurring, the PGT shall apply to the court for a temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. The order must set out the powers and any conditions associated with the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order.
The connection of the complaint and investigation function with the potential outcome of guardianship by the PGT is worth emphasizing: the only action that the PGT is statutorily empowered to take as a result of an investigation is an application for temporary guardianship, which, although temporary, is nevertheless a very significant intervention in the life of the affected individual. The legislation implicitly therefore does not contemplate investigations in any but the most serious matters.
Activities of the PGT’s Investigations Unit: 2013-2014
• Number of recorded communications received: 10,000. Most of these were referred elsewhere for appropriate action, including to family, the Capacity Assessment Office, private lawyers, Community Care Access Centres, health practitioners, and the police or other law enforcement.
• Investigations opened: 239 investigations were opened.
• Investigations completed during the fiscal year: 214
• Resultant statutory guardianships for the PGT: 61