The Law Commission of Ontario (LCO) has initiated a project that will apply the LCO’s Frameworks for the law as it affects persons with disabilities and older adults to issues related to legal capacity, decision-making and guardianship in the Substitute Decisions Act and the Health Care Consent Act, and to those specific provisions of the Mental Health Act related to legal capacity, in order to develop specific and practical law reform recommendations. A detailed discussion of the scope of this project, together with other project documents, may be found on the LCO’s website, and we urge readers to carefully review these documents.
In the fall of 2012 and the early winter of 2013, the LCO conducted preliminary research and consultations in order to understand key contexts in which the law operates and identify core issues for further research, analysis and consultation. Based on this preliminary work, the LCO is now developing a Discussion Paper which will analyze the identified issues and set out key questions for public consultation. The Discussion Paper and accompanying consultation documents is slated for release in early 2014, and will be followed by extensive public consultation.
As part of the development of the Discussion Paper, the LCO will fund a number of research papers, which will inform both the analysis in the Discussion Paper and the development of options for reform. The nature of these papers, and the criteria and terms for funding are set out below.
I. RESEARCH TO BE FUNDED
The objective of this Call for Research Papers is to obtain expert input on the complex issues raised by the law relating to capacity, decision-making and guardianship. The resulting research will assist the LCO is making reasoned, evidence-based and practical reform recommendations. The Call for Research Papers also aims to create critical debate and promote scholarly work in this area of the law.
Ontario’s laws in this area were the subject of a major law reform effort in the 1990s. In considering new reforms, it will be important for the LCO to understand and take into account the evidence regarding the effects of the implementation of the current laws.
The LCO is particularly interested in papers that take into account the diverse experiences of persons with disabilities and older adults across the life course. The LCO takes a holistic approach to law reform and encourages interdisciplinary research and proposals from interdisciplinary research teams. The LCO encourages both applicants with legal backgrounds and those with expertise in other disciplines to make proposals on the topics identified below.
Given that the project will apply the LCO Framework for the Law as it Affects Older Adults and the Framework for the Law as it Affects Persons with Disabilities to evaluate the current law and any law reform proposals, the LCO will give particular consideration to proposals that take one or both of these Frameworks into account.
Researchers are encouraged to employ relevant quantitative or qualitative research that they have already undertaken or, as long as it can be completed within the time frames set out below, to undertake original quantitative or qualitative research that will contribute to their analysis.
The LCO has identified eight potential Research Paper topics and will fund a maximum of five, after considering all proposals received. The LCO will also consider proposals on other topics that clearly demonstrate links to and make a contribution to analysis of the issues identified in the LCO’s “Scope Summary”.
The LCO encourages proposals that take into account how the issues under consideration may be affected by various aspects of diversity, including age, culture, language, literacy, gender, sexual orientation, racialization, type of disability, family and marital status, place of residence and other factors.
1. Decision-making models and familial dynamics
Most individuals, whether with or without disabilities, rely considerably on family and other close personal relationships for support and advice. We often assume that families have some responsibility to their members, believe that families will understand each other, and hope that they will uphold the values and safeguard the interests of their members. In other words, at both a personal and societal level, we place considerable trust and responsibility in the hands of families.
These roles and responsibilities are even greater where an individual has a disability that affects the ability to understand information and assess risk. In terms of the individual with a disability, there is both greater need and greater vulnerability to exploitation and abuse. For family members, there is greater responsibility and higher expectations. Family dynamics may, however, differ depending on the stage in the life course when disability occurs, the type of disability experienced, and the circumstances and resources of the individual and his or her family.
In all models of decision-making, whether based on a supported, substituted or co-decision-making approach, families and other close personal relationships play a core role. The assumptions about the role of family members, expectations about their abilities and responsibilities, and potential impact on them may differ however. These differences lie close to the heart of many of the issues surrounding models of decision-making.
The LCO seeks a Research Paper that will provide an analysis of:
the roles and responsibilities for families or other close personal relationships under various models of decision-making;
these roles and responsibilities in light of current information about demographics, family structures in Ontario, cultural expectations regarding family and caregiving, and other social science evidence;
family dynamics and risk factors for abuse under various decision-making models; and
other issues considered of significant relevance to a full analysis of this topic.
2. Understanding the lived experience of those who act as substituted decision-makers or provide support or decision-making
Providing support and assistance to an individual who has a disability that affects the ability to understand information and assess risk raises complex ethical, legal, practical, emotional and interpersonal issues. This experience may differ depending on a variety of factors, including the kind of relationship between the individual providing supports or substituted decision-making and the individual with a disability; cultural understandings and assumptions; the type of disability; the kinds of supports to which the parties have access; various aspects of identity of those involved, such as gender and age (for example); and the legal framework under which the individuals are operating. The ways in which the individuals providing support or substituted decision-making understand and experience their roles will profoundly shape the implementation of the law.
The LCO seeks a Research Paper that will examine the lived experience of individuals who provide supports to decision-making or substituted decision-making, including how they understand their roles, the types of challenges they experience in carrying out those roles, and the supports that would be of assistance to them in carrying out those roles.
The LCO will give priority to proposals that include original qualitative or quantitive research, that consider how understandings and experiences may be shaped or influenced by various aspects of diversity and by different legal frameworks.
3. Addressing fluctuating capacity
Ontario’s Substitute Decisions Act and Health Care Consent Act essentially operate on a binary model of capacity: an individual either has or has not legal capacity to make independent decisions in a particular area. The determination of legal capacity has very significant implications for an individual. While re-assessments of capacity can be and are undertaken, with resulting implications for guardianships or powers of attorney, these processes are complex, cumbersome and generally costly.
While some forms of disability involve impairments to decision-making capacity that are relatively stable, some types of disability are episodic or progressive and in other cases, decision-making capacities may fluctuate frequently. The current system has difficulty effectively addressing these types of situations.
The LCO seeks a Research Paper that will:
Analyze how Ontario’s current legal framework aims to and in practice does address issues of fluctuating capacity;
Identify areas for reform;
Evaluate options for changes to law, policy and practice to better address fluctuating capacity; and
Address other issues considered of significant relevance to a full analysis of this topic.
4. Re-evaluating Ontario’s approach to assessing capacity
Assessment of legal capacity is a complex endeavour. In Ontario, whether capacity is assessed (evaluated) under the HCCA, the SDA or the MHA, it is based on the “understand and appreciate” test. However, it is assessed in different contexts, and by professionals with different types of training, supports and oversight. A considerable number of policies, procedures and tools have been developed to assist with assessment of capacity. A range of concerns have been raised regarding assessment of capacity, including the degree to which it is sensitive to characteristics such as culture, literacy, communications barriers or the fluctuating nature of some disabilities; whether greater provision or recognition of accommodations and supports during the assessment process might reduce the number of individuals found incapable; whether those conducting assessments (evaluations) received sufficient training and supports and are subject to adequate oversight mechanisms; and whether current protections sufficiently address the power imbalances often inherent in the capacity assessment process, particularly in institutional settings.
The LCO seeks a Research Paper that will:
Review critiques of Ontario’s approach to assessing capacity (including capacity evaluations);
Identify current best practices in terms of training, policies, education and supports for those who assess capacity;
Review approaches to capacity assessment in other jurisdictions;
Identify and evaluate options for reform to law, pol