LIST OF RECOMMENDATIONS: SHORT, MEDIUM AND LONG-TERM TIMEFRAMES
In accordance with the concept of progressive realization, and recognizing both the challenges associated with some of the LCO’s recommendations and the constraints on law reform in the current environment, the LCO has identified recommendations which can be implemented over short, medium and longer timeframes. In identifying time frames, consideration has been given to the complexity of implementation, the likely cost of the recommendation, and whether the reform requires legislative change or can be implemented at the level of policy or practice.
Short Term
Short–term recommendations are ones that could be implemented immediately, or very soon. They include recommendations that are relatively straightforward, for example, involving clarification of legislation. They can be implemented at a relatively low cost, and either do not require legislative amendments or the necessary amendments to the legislation could be made without significantly opening up the relevant statute.
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
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
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.
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.
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).
20: To improve the quality of assessments of capacity in health care settings, Health Quality Ontario:
a) Within the scope of its mandate, take the following steps to encourage the improvement of the quality of assessments of capacity in accordance with legal standards in health care settings:
i. encourage health care organizations to include issues related to assessment of capacity and the accompanying procedural rights in their Quality Improvement Plans;
ii. encourage the inclusion of issues related to the assessment of capacity and the accompanying procedural rights in patient surveys conducted by health care organizations;
iii. assist partners in the health care sector in the development or dissemination of educational materials for health care organizations related to the assessment of capacity and the accompanying procedural rights; and
iv. consider bringing specific focus to monitoring of the quality of consent and capacity issues in heal