LIST OF RECOMMENDATIONS
The LCO recommends:
Chapter III: Applying the LCO Frameworks to Ontario’s Legal Capacity, Decision-Making and Guardianship Laws
1: The Government of Ontario include in reformed legal capacity, decision-making and guardianship legislation provisions that are informed by the LCO Frameworks for the law as it affects persons with disabilities and the law as it affects older adults, and which set out
a) the purposes of the legislation; and
b) the principles to guide interpretation of the legislation.
2: The Government of Ontario
a) initiate a strategy to reform legal capacity, decision-making and guardianship law;
b) collect, review and publicly share information and data related to this area of the law;
c) publicly report on the progress of its strategy for reform; and
d) commit to ongoing review and evaluation of this area of the law and the effect of reform
Chapter IV: Concepts of Legal Capacity and Approaches to Decision-Making: Promoting Autonomy and Allocating Legal Accountability
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 stakeholder
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
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.
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 project
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.
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:
a) 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;
b) identify formal requirements for the creation of networks, including accountability documents, decision- making processes and record-keeping requirements;
c) create a registration process for networks as well as annual filing requirements; and
d) determine the legal authority and accountability of these networks, including signing authority.
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.
Chapter V: Assessing Legal Capacity: Improving Quality and Consistency
10: The Government of Ontario design and implement a statutory process for decision-making with respect to detention for those who lack legal capacity, do not fall within the Mental Health Act and whose detention is required in order to address vital concerns for security or safety. This statutory process would:
a) balance the competing considerations of safety and fundamental liberty rights, in keeping with a least restrictive approach to issues related to legal capacity and decision-making;
b) provide meaningful procedural protections, taking into account the significant barriers to access to justice experienced by those directly affected;
c) consider the potential for conflicts of interest on the part of substitute decision-makers;
d) take into account the reasonable needs of those administering the law, so as to avoid unnecessary or ineffective administrative burdens; and include a strategy for data collection, public reporting, and monitoring and evaluation.
11: The Government of Ontario
a) amend the Substitute Decisions Act, 1992 to provide a clear statement as to the appropriate purposes of Capacity Assessment; and
b) review forms under the Substitute Decisions Act, 1992 to ensure that the forms promote the use and conduct of Capacity Assessments in accordance with the purposes and principles underlying the statute.
12: Consistent with the presumption of capacity, the Government of Ontario amend section 54 of the Mental Health Act with respect to examinations of capacity to manage property, to require physicians to conduct such examinations only where there are reasonable grounds to believe that the person may lack legal capacity to manage property.
13: The Government of Ontario amend section 54(6) of the Mental Health Act to clarify that a physician may only dispense with an examination of capacity to manage property that would be otherwise required if the existing continuing power of attorney covers all of the patient’s property.
14: The Government of Ontario develop and implement a strategy for improving access to Capacity Assessments under the Substitute Decisions Act, 1992. Such a strategy would consider how to remove informational, navigational, communication and other barriers for persons in remote and First Nation communities; newcomer communities; youth in transition from care; persons facing communications barriers, including among others those who are Deaf, deafened or hard of hearing and persons for whom English or French is a subsequent language; low-income individuals; and others identified as facing barriers.
15: The Government of Ontario review the list of professionals eligible to conduct Capacity Assessments under the Substitute Decisions Act, 1992.
16: The Government of Ontario create official Guidelines for assessments of capacity under the Health Care Consent Act, 1996, incorporating basic principles, procedural rights, and guidance for appropriate assessments of particular populations, including the provision of accommodation.
17: The Government of Ontario create official Guidelines for examinations of capacity to manage property under Part III of the Mental Health Act, including in addition to matters listed in Recommendation 16, guidance on the appropriate application of section 54(6).
18: To strengthen Ontario’s rights information regime,
a) The Government of Ontario amend sections 17, 1 and 62.1 of the Health Care Consent Act, 1996 to include clear and effective common standards for the provision of rights information to the individual who has been found to lack legal capacity, which will protect fundamental rights and will ensure that:
i. notice is provided of the determination of incapacity, the consequences of the incapacity, the identity of the substitute decision-maker who will be making the decision with respect to treatment, and the right to challenge the finding of incapacity;
ii. the information is provided in a manner that accommodates the needs of the affected individual, including alternative methods of communication; and
iii.the health practitioner provides the individual with information or referrals regarding the means of pursuing an application to the Consent and Capacity Board to challenge the finding of incapacit
b) Consistent with Recommendations 57 and 58, the health regulatory colleges strengthen their role of supporting and educating their memb