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 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 health care through the production of a dedicated report on this issu
b) promote approaches to quality that include respect for patient autonomy, a thorough understanding of the legal foundations of capacity and consent, and the promotion of patient
21: The Ministry of Health and Long-Term Care further promote the ability of long-term care homes to better address their responsibilities under the Bill of Rights regarding consent, capacity and decision-making by:
a) including information related to these issues in their annual resident and family satisfaction surveys;
b) working with and strengthening the capacities of Residents and Family Councils to develop educational programs for residents and families on these issues; and
c) developing a thorough and specific focus on issues related to consent, capacity and decision-making in their staff training.
22: Within the scope of their mandates and objects, the Local Health Integration Networks use their roles in improving quality, setting standards and benchmarks and evaluating outcomes to
a) support and encourage health services to improve information, education and training for professionals carrying out assessments of capacity under the Mental Health Act and Health Care Consent Act, 1996;
b) ensure effective provision of rights information; and
c) support the provision of information and resources to substitute decision-makers regarding their roles and responsibilities under the Health Care Consent Act, 1996.
23: The Ministry of Community and Social Services consider whether, within its oversight functions under the Supports and Services to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 there are ways in which it can support and encourage the use of positive and autonomy-enhancing approaches to decision-making.
28: The Government of Ontario amend the Health Care Consent Act, 1996 to enable individuals to create a binding statement in writing to specifically exclude a particular individual or individuals from acting under the hierarchy set out in section 20 of that Act,
a) through a written document which meets the same execution requirements as a revocation of a power of attorney for personal care under section 53 of the Substitute Decisions Act, 1992 and which
b) requires a standard for legal capacity similar to that for creating a power of attorney for personal care.
This statement could not be used to exclude the Public Guardian and Trustee from acting.
30: The Government of Ontario and any court or tribunal addressing issues of legal capacity, decision-making and guardianship develop programs and policies that expand alternative dispute resolution options, including mediation and emerging approaches, for appropriate cases. These programs/policies would:
a) be clear that a determination of a person’s legal capacity cannot be made through mediation;
b) identify matters that are appropriate for mediation or other forms of alternative dispute resolution;
c) develop professionals with core competencies necessary to effective mediation and dispute resolution in this area of the law, including:
i. knowledge and skills in capacity and guardianship law and any other specific law at issue;
ii. the principles and values underlying capacity and guardianship law and of human rights;
iii. the needs and circumstances of individuals who are affected by this area of the law; and
iv. alternatives to the use of guardianship or substitute decision-making; and
d) create a code of ethics and of standards for mediation and other forms of alternative dispute resolution in this area, including guidance on capacity and consent to engage in mediation.
31: The Government of Ontario consider clarifying the application of Rule 7 under the Rules of Civil Procedures regarding the approval of settlements for persons under disability in the specific context of the consideration of expanded mediation and alternative dispute resolution of matters under the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992 by the Consent and Capacity Board or other tribunal.
32: The Government of Ontario amend the Substitute Decisions Act, 1992 to specify that it is an offence for a person to impede or interfere with the ability of counsel appointed under section 3 to carry out their statutory function, and to codify a right for Section 3 Counsel to meet privately with their clients.
33: The Government of Ontario, working with the Law Society of Upper Canada, lawyer organizations and others, develop a range of supports for lawyers appointed as Section 3 Counsel under the Substitute Decisions Act, 1992.
34: The Law Society of Upper Canada consider whether clarification of the Rules of Professional Conduct with respect to the appropriate relationship between a lawyer and counsel for persons who lack or may lack legal capacity is required, and if so, that it amend the Rules accordingly.
35: Legal Aid Ontario consider:
a) expanding funding of matters under the Substitute Decisions Act, 1992 and in particular of additional supports to:
i. enhance access to Section 3 Counsel;
ii. enhance access to legal representation for persons who wish to challenge the appointment or choice of a guardian and are not the subject of a Section 3 appointment;
iii. enable individuals to challenge the compliance of substitute decision-makers appointed under the Substitute Decisions Act, 1992 with their responsibilities under that statute
b) enhancing the supports available to promote the knowledge and skills of lawyers who provide services in this area of the law.
37: In order to promote understanding and ease of navigation, t