The concept of supported decision-making has been generating considerable debate. Many are drawn to the basic idea that decision-making rights – in areas ranging from health and personal care to finances – be delinked from particular levels of mental ability. The fundamentally hopeful premise of supported decision-making is that everyone can participate in personal decision-making if they have the right supports. Proponents of this approach, encouraged by the Convention on the Rights of Persons with Disabilities, say that traditional legal capacity laws that base decision-making rights on threshold levels of “understanding and appreciation” must be discarded, and a range of decision-making supports implemented in their stead. Others are concerned that traditional legal capacity laws, while perhaps imperfect, are necessary to safeguard vulnerable persons. They raise the possibility that giving legal status to ambiguous ‘supported’ decision-making process will only mask abuse.
As this broader debate continues unabated, many would agree on a narrower point – that is, that there is a lack of information about how existing supported decision-making mechanisms are working in practice, and indeed, that any attempt to legally formalize supported decision-making must build on such concrete experience. This paper takes this latter theme as its point of departure. Commissioned by the Law Commission of Ontario in the context of its inquiry into Ontario’s legal capacity, guardianship, and decision-making laws, it steps back from the broader debate (about whether supported decision-making should be formalized in law at all), to instead examine one particular kind of decision-making support that is being used in British Columbia and Ontario: personal support networks. It considers: (i) how personal support networks are operating in these two provinces; (ii) whether they are providing supported decision-making; and (iii) where they ‘sit’ within the broader legal context, including what it might mean to formalize them in law. In the context of this last question, it considers whether the law could, or indeed should, recognize the collective nature of ‘network’ decision-making as something distinct from individual one-on-one supports.
The paper is divided into ten parts:
Part I locates this project within the Law Commission of Ontario’s broader work, sets out the research questions, and explains the study’s limitations, including the fact that it does not directly consider the perspectives of the individuals supported by personal networks. This means that this paper cannot speak to the more substantive and subjective elements of supported decision-making, for example, whether it is experienced as empowering. The short time frame for the study also made it impossible to fully canvass some other perspectives, such as those from government.
Part II sets out the project’s three-step methodology. This included: (1) a survey of the literature relating to personal support networks to provide history and context for the entities under study; (2) a series of semi-structured interviews with persons with knowledge or experience relating to personal support networks; and (3) legal research into the laws and standards that currently apply to personal support networks, and the legal implications of varying options for formalizing networks in law. Of these three steps the interview stage was a central focus. This stage involved semi-structured interviews with 19 informants from a range of perspectives. Some had personally participated in personal support networks in either a personal or professional capacity. Others had not, and spoke to personal support networks from the perspective of policy, academics, or other professional practice. In general, the objective was to determine how networks are working in practice, and what rules and safeguards are applied.
Part III is a short section on terminology; essentially, it explains that terms such as “Microboard”, “Aroha entity”, “support circle” and “personal network” are used in different ways by different people, and that in this paper the term “personal support network” refers to all of these types of entities. It sets out some minimal requirements (such as identifiable membership and the support of a single individual) for being called a “personal support network” for this paper. Part IV sets out some history and context for thinking about personal support networks. It explains that notwithstanding this paper’s grouping of all networks together under a single term, they can be directed to different themes and purposes, including: (i) individualized funding and service delivery; (ii) friendship and community; and (iii) person-directed planning. While these themes often overlap, different networks emphasize them to varying degrees. And, supported decision-making may not be equally important to all of these goals.
Part V summarizes the results of the interviews. The lengthiest of the sections, it is intended to provide a relatively detailed description of informants’ views on: network creation; principles of decision-making; interactions with government and private third parties; and the question of who is using personal support networks. There was a wide range of views in most of these areas. An exception was the uniform intention (at least among informants who had participated in networks) of providing supported decision-making. Another exception was informants’ experiences with private third parties. Neither the incorporated entities, nor the less formal networks, were able to interact with parties such as health care providers, lawyers, or banks, on the supported person’s behalf.
Part VI briefly sets out some of the laws and non-legal standards that can apply to personal support networks. These vary by jurisdiction and the network’s structure. Generally, however, incorporation brings with it a range of legal obligations, as does acting in an employer role. Incorporation also alters network members’ (now directors’) principles of responsibility and liability vis-à-vis third parties. Processes of decision-making in networks, on the other hand, are currently unregulated and unmonitored. Any standards that apply in this context are private and/or voluntary.
Part VII discusses the principles of supported decision-making, and asks whether the decision-making processes described by informants are consistent with these principles. It concludes that they are in many cases, but that one’s answer will depend on the definition of supported decision-making that is adopted and on the particular network. It also discusses the skepticism that many people expressed about whether all networks engage in supported decision-making, or do so uniformly well.
Part VIII explores the policy options for recognizing personal support networks in law. It describes three possible approaches: (1) modest ones that largely rely on existing legal concepts (such as the duty to accommodate); (2) adoption of a supported decision-making law along the lines of British Columbia’s Representation Agreement Act, which would not formally recognize networks, but could indirectly provide support for existing networks, and / or help to create new ones; and (3) the more novel and contentious option of giving incorporated support networks the legal authority to represent the personal decisions of a private individual. The section ends with a discussion of the key factors that would need to be taken into account were this final option to be taken forward.
Part IX is an overview discussion the three legal options in light of the twin concerns for protecting vulnerable decision-makers and ensuring adequate clarity for third parties. It ultimately suggests that an expanded corporate model has some potential to address these concerns in a way that the other legal options cannot; but that this apparent advantage requires further examination alongside the range of factors, advantages and drawbacks discussed in Part VIII.
Part X concludes.
|Table of Contents|