This chapter describes the framework we use to analyze whether Ontario’s existing mechanisms for monitoring and overseeing guardians effectively protect the rights and interests of persons with disabilities who are subject to guardianships. This framework will also be used to make recommendations for reforms to law and policy to ensure that those rights and interests are more effectively safeguarded.
The approach we take is a rights-based principled approach. It is important to include both rights and principles when analyzing the efficacy of Ontario’s current monitoring mechanisms. Principles guide our thinking, analysis, recommendations and actions. They articulate important values and goals that we strive to achieve. Legal rights provide a vehicle by which principles become real for individuals. Rights are concrete, actionable and enforceable, making them meaningful for people who experience disadvantage and discrimination.
Our rights-based principled approach draws on the Convention on the Rights of Persons with Disabilities and the LCO’s Framework for the Law as It Affects Persons with Disabilities (“Framework”). Article 12 of the CRPD provides that persons with disabilities have a right to legal capacity on an equal basis as others. Drawing on the principles articulated in other CRPD articles, we develop an analysis of the meaning of the right to legal capacity in Article 12. Many of these same principles are reflected in the LCO’s Framework. We briefly describe the LCO’s Framework, focusing on those similar principles. Synthesizing the analysis of the right to legal capacity and the principles articulated in the LCO’s Framework, we develop a rights-based principled approach to legal capacity.
A. Convention on the Rights of Persons with Disabilities
On May 3, 2008 the Convention on the Rights of Persons with Disabilities entered into force. This was a watershed moment for the international disability community. The CRPD represents global recognition that people with disabilities are citizens, capable of claiming their rights and freedoms, making decisions based on free and informed consent, and being active members of society. “In 50 articles, the CRPD clearly articulates what existing human rights mean within a disability context and establishes reporting and monitoring procedures for States Parties.”
The CRPD has been described as a Convention of firsts: it was the first human rights treaty of the twenty-first century, the fastest negotiated human rights convention in UN history, and the first human rights convention with an explicit social development dimension. Perhaps most important, it was the first time that civil society actively participated in the development and negotiation of the text of a convention. The inclusion of people with disabilities and disability organizations was particularly poignant, given that historically, people with disabilities have been disadvantaged and discriminated against by being removed or excluded from services, education, politics, employment, and social life in general. According to some, by the passage of the CRPD, “the most excluded group of people in society became the most included in the history of the United Nations.”
Article 12 of the CRPD deals with legal capacity, and provides that:
States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
During the negotiation of the CRPD, Article 12 was one of the most controversial and contested articles. States disagreed on the nature of substitute-decision-making arrangements, what due process protections should be in place, and what kinds of supports should be provided in the context of legal capacity. A key dispute was whether it was necessary to distinguish between legal capacity to possess rights and legal capacity to act. The final version of Article 12 recognizes legal capacity to the fullest extent. It includes the right to recognition as a person before the law and the right to legal capacity. Capacity to be a person before the law endows individuals with the right to have their status and capacity recognized in law. Legal capacity is a broader concept; it is based upon the capacity to be a holder of legal rights and obligations, but also includes the capacity to act.
The substance of Article 12 must be interpreted with reference to the CRPD as a whole, in order to understand the full extent of the rights and obligations outlined therein. The foundational elements of the CRPD, specifically the Preamble and Article 3, inform a full understanding of Article 12. Article 3 outlines general principles, which apply to all articles in the CRPD. As articulated by the Office of the High Commissioner for Human Rights, the eight general principles, “guide the interpretation and implementation of the entire Convention, cutting across all issues. They are the starting point for understanding and interpreting the rights of persons with disabilities, providing benchmarks against which each right is measured.”
The Preamble to the CRPD recognizes the, “importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices.” Similarly, Article 3 includes the principles:
- respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; and
- full and effective participation and inclusion in society.
These articles make it clear that individual autonomy and the freedom to make one’s own decisions are crucial aspects of human dignity and personhood. Having the right to make one’s own decisions, on an equal basis as others, is an important part of the goal of full and effective participation and inclusion in society. For the disability community, this is particularly true, given that people with disabilities have been, and still are, discriminated against and disadvantaged by excluding them from society. The right to legal capacity, is, therefore, closely tied to emancipatory goals.
This understanding of the significance of legal capacity is confirmed by considering the relationship between Article 12 and other articles that relate to decision-making. Article 25 includes the right to make health care decisions on the basis of free and informed consent. Article 19 discusses the right to live independently and be included in the community. It provides that, “persons with disabilities have the opportunity to choose their place of residence and where and with whom they live…” Article 23 includes the right to marry and found a family on the basis of free consent of both spouses, and the right to decide on the number and spacing of children. Article 16 provides for freedom from exploitation, violence and abuse. Decisions regarding one’s health, residence and family are significant life choices, which are based upon the recognition that people with disabilities have the right to full legal capacity.
Article 3 also includes the principles:
- Equality of opportunity; and
These principles point to the importance of ensuring that people with disabilities enjoy legal capacity on an equal basis as people without disabilities. The legal capacity of people with disabilities cannot be restricted to a greater degree or on a different basis than the legal capacity of people without disabilities. People with disabilities should be provided with accommodations and supports to ensure that that they are able to exercise their legal capacity to the greatest extent possible. Under the accessibility principle, legal and bureaucratic processes and safeguards related to legal capacity must be accessible for people with disabilities.
B. LCO’s Framework for the Law as It Affects Persons with Disabilities
The Law Commission of Ontario’s Framework for the Law as It Affects Persons with Disabilities describes a set of principles that can be used to analyze and evaluate whether laws, policies and practices advance substantive equality for persons with disabilities. Substantive equality is a central concept in Canadian equality rights and anti-discrimination law. The LCO describes substantive equality as going beyond non-discrimination. It includes values of dignity, the opportunity to participate, having one’s needs met, and the opportunity to live in an inclusive society. Substantive equality may require different treatment in order to fulfill these values. The LCO’s Framework underscores the importance of substantive equality, calling it the overriding value, which can be used to understand the other principles and give them greater depth.
Several of the principles described in the LCO’s Framework are relevant to our analysis of accountability mechanisms for guardians in Ontario, including:
- Respecting the dignity and worth of persons with disabilities: This principle recognizes the inherent, equal and inalienable worth of every person, include those with disabilities.
- Responding to diversity in human abilities and other characteristics: This principle recognizes that all people have varying abilities, and that each person with a disability has unique needs, circumstances and identities.
- Fostering autonomy and independence: This principle demands the creation of conditions to ensure that people with disabilities are able to make choices that affect their lives. People with disabilities should have the supports needed to do as much for themselves as possible or as they desire.
- Promoting social inclusion and participation: This principle requires designing society in a way that removes physical, social, attitudinal and systemic barriers to exercising citizenship rights and responsibilities.
Under the LCO’s Framework, each of these principles can be applied to analyze and evaluate law, policies and practices. The principle of respecting dignity and worth means that there must be meaningful mechanisms to ensure that people with disabilities can raise concerns about mistreatment or abuse, and that there is meaningful redress when these concerns arise. Responding to diversity means that complaint and accountability mechanisms are accessible for persons with disabilities. Complaint mechanisms should be straightforward and transparent, and may require the provision of advocacy or support mechanisms. To ensure autonomy and independence, people with disabilities must have access to information needed to understand and enforce their rights. Accountability mechanisms can promote participation and inclusion by giving persons with disabilities the opportunity to provide input into the operation and reform of laws, policies and practices that affect them.
C. A Rights-based Principled Approach
Drawing on the rights and principles articulated in the CRPD, as well as the principles and approach described in the LCO’s Framework, we have developed the following rights-based principled approach in relation to legal capacity.
The core of this approach is the right to legal capacity, including the right to recognition as a person before the law, and the right to hold legal rights and obligations and act upon them. Underlying this right are the following principles:
- Respect for inherent dignity and worth: This principle is recognized in the LCO’s Framework and in Article 3 of the CRPD. The right to legal capacity is fundamentally linked to human dignity and personhood. Therefore, any restrictions placed upon this right should be limited to the greatest extent possible. Under the LCO Framework, this principle requires meaningful mechanisms to ensure that people with disabilities can raise concerns about mistreatment or abuse, and that there is meaningful redress when these concerns arise.
- Respect for and promotion of individual autonomy and independence: The Preamble to the CRPD recognizes the importance of this principle, and makes it clear that autonomy and the freedom to make one’s own decisions are crucial aspects of human dignity and personhood. Under the LCO’s Framework, people with disabilities must have access to information needed to understand and enforce their rights.
- Promotion of full and effective participation and inclusion in society: Articulated in Article 3 of the CRPD, this principle recognizes that people with disabilities have been, and still are, disadvantaged by processes that exclude them from society. Legal and bureaucratic processes related to legal capacity should be designed so as to foster participation and engagement. Under the LCO’s Framework, people with disabilities must have opportunities to provide input into the laws and policies that affect them.
- Promotion of substantive equality: This principle is explicitly set out in Article 12 of the CRPD and in the LCO’s Framework. It recognizes that people with disabilities must enjoy legal capacity on an equal basis as others.
- Promotion of accessibility: Article 3 of the CRPD and the LCO’s Framework both include the principle of accessibility. Legal and bureaucratic safeguards related to legal capacity must be accessible for people with disabilities.
Based upon the right to legal capacity and its underlying principles, and guided by the LCO’s Framework, the following elements will be important for ensuring that guardians carry out their roles and functions in a manner that respects the rights of persons with disabilities:
- Guardianships should be permitted only on the most limited basis, taking into account the circumstances and needs of the person with a disability.
o The need for a guardian should be subject to regular review by a competent, independent and impartial public authority or judicial body.
o Guardians should be appointed for the shortest time possible, taking into account the circumstances of the ‘incapable’ individual.
- Laws, policies and practices that regulate guardians should include mechanisms through which people with disabilities who are subject to guardianship can complain or raise concerns about mistreatment or abuse. These concerns should be addressed in a meaningful way.
- Law, policies and practices that regulate guardians should include complaint mechanisms that are accessible for people with disabilities who are subject to guardianship.
o People with disabilities must have access to information regarding these complaint mechanisms.
o People with disabilities must have access to supports if such supports are necessary to assist and/or empower them to utilize complaint mechanisms.
o Complaint mechanisms must be designed to be accessible and navigable for people with disabilities.
- Laws, policies or practices relating to guardianship must include mechanisms for external monitoring and/ or ensuring that guardians are accountable for the powers they exercise.
- These monitoring and/or accountability mechanisms must be accessible for people with disabilities who are subject to guardianship.
o People with disabilities must have access to meaningful information regarding the monitoring and/or accountability mechanisms.
o People with disabilities must have access to supports if those supports are necessary to assist and/or empower them to utilize the existing monitoring and accountability mechanisms.
o Monitoring and accountability mechanisms must be designed to be accessible and navigable for people with disabilities.
- People with disabilities who are subject to guardianship must be able to provide feedback on the effectiveness of the laws, policies and procedures that regulate guardianship.
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