There are a number of opportunities for recognizing personal support networks in current, or potential future, law. The options set out below begin with the most modest (indeed, the first is arguably already law), moving on to opportunities for deeper reform. The first options largely rely on existing legal tools and concepts. These would give some recognition to network supports provided in particular cases, but would not formalize the network structure (although they could be paired with background supports for personal support network building). The second category of approaches would give legal recognition to individual relationships of support (like British Columbia’s RAA), recognizing that individual relationships and personal support networks often go hand-in-hand, and that in using these tools people may both rely on and strengthen personal support networks. The final group of options explores the implications of building on the corporate model. These options take seriously the idea of group decision-making supports, and the concept of a jointly created decision-making entity. The first of these – essentially, Microboards – is already law in British Columbia. The second discusses expansion of the Microboard model to other areas of decision-making, which would be a novel approach.
A. Opportunities for modest legal recognition (no substantial change to current laws or concepts)
1. Recognizing network support as part of the duty to accommodate persons in reaching traditional capacity thresholds
Arguably, this first ‘option’ is already legally required. Human rights legislation across Canada protects against discrimination on the basis of age and disability (among other grounds) in a number of areas. In Ontario, the Human Rights Code (the “Code”) provides the right to freedom from discrimination in the areas of services, employment, accommodation, contracts, and vocational associations.
Under sections 9 and 11 of the Code, the application of a facially neutral standard that adversely affects persons with disabilities can amount to discrimination. Where there is prima facie discrimination, the burden shifts to the party relying on the standard to show that the person cannot be accommodated without undue hardship.
The Code also specifically refers to a duty to accommodate in the context of allegations that a person is incapable of exercising a right because of disability. Section 17(1) provides that a right is not infringed “for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability”. Thus, it provides a kind of ‘defence’ to allegations of discrimination. However, section 17(2) goes on to state that “[n]o tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship”.
Although s. 17 is not referring to “capacity” in the sense of legal decision-making capacity, arguably the section is broad enough to encompass legal capacity standards. On this interpretation, sections 9, 11, and 17 read together, would mean that a person providing a service (or other covered activity under the Code) could not withhold that service on the grounds that the person lacked the necessary legal capacity (a facially neutral standard), unless it were established that the duty to accommodate had been met. The content of this duty to accommodate could be debated, but might include, for example, allowing a support person, communication assistant, or personal support network member to be present where this allowed the person to reach ordinary legal capacity standards. Some scholars have advanced precisely this kind of claim, arguing that decision-making supports (such as personal support networks) should be recognized as a form of legally required accommodation.
As the LCO notes, there does not appear to be any Canadian case law on point. However, the Commissioner for Human Rights for the Council of Europe has recommended that government and key institutions have an obligation to accommodate that would include: “acceptance of a support person communicating the will of the person concerned”. Although it has not been adopted as Ontario policy, the Ontario Human Rights Commission recently referred to (without endorsing) the argument that “providing supports as much as possible to help people make decisions should be recognized as part of an organization’s legal duty to accommodate.” It also observed that “Article 12 [of the CRPD] requires that appropriate measures be taken to provide the person with the support they need to make decisions, such as making sure a person has access to a network of people who can help.”
The informants’ comments indicate that, in practice, some third parties are already providing this kind of accommodation. Informants described interactions with banks, health care providers, service providers, and lawyers, in which a person was viewed as legally capable when supported by one or more members of a support network. In some of these cases the person’s capacity simply was not questioned when a supporter was present. In others, parents expressly appealed to the existence of the personal support network, successfully convincing the third party that there was (supported) legal capacity.
Recognizing decision-making supports as legally required accommodation does not specifically entrench any particular form of personal support network, or indeed, networks at all. The very idea of accommodation is that it is individual. As the Human Rights Commission has explained: “There is no set formula for accommodating people with disabilities. Each person’s needs are unique and must be considered afresh when an accommodation request is made.” Thus, this approach would not formalize any particular approach to support networks in law. It also would likely not require that new safeguards be created, given that traditional capacity tests would apply. However, for the same reason, this approach will likely not satisfy those seeking meaningful alternatives to guardianship. Given that it would require people to “understand and appreciate” (with supports) it would continue to be inaccessible to many persons with disabilities.
2. Network support as an alternative to guardianship – ss. 22 and 55 of the SDA
Sections 22(3) and 55(2) of the Substitute Decisions Act (SDA), dealing with guardianship for property and personal care, respectively, state that the court must not appoint a guardian if “it is satisfied that the need for decisions to be made will be met by an alternative course of action” that both “does not require the court to find the person to be incapable” and “is less restrictive of the person’s decision-making rights than the appointment of a guardian” (the “alternative course of action” provisions).
To date, it seems that in most of the cases applying these provisions, the ‘alternative’ under consideration has been a power of attorney. However, it could be argued that decision-making with the support of a personal network is an alternative to guardianship that should be recognized, in an appropriate case, under the alternative course of action provisions. Indeed, one Ontario case has (obliquely) suggested that supported decision-making could qualify under s. 55(2) of the SDA. In Gray v. Ontario (2006), the Ontario Divisional Court heard a judicial review of the government’s decision to close three residential institutions. In the context of describing the government’s process for planning and obtaining consent for individuals’ new community placements (which did not require guardianship), the Court suggested that this process might be consistent with a “‘supported decision making’ process, which in many cases will be consistent with the words and the intention of section 55(2) of the Act”.
The Coalition on Alternatives to Guardianship has argued that the alternative course of action requirement “is not just a provision, but a process”. It explains that after the SDA was implemented in 1992 there was government interest in developing procedures for implementing a supported decision-making system, but that “the promised process…never materialized.” The Coalition recommends that this be taken up now, and that ss. 22(3) and 55(2) be used as the springboard for a new legislated supported decision-making process.
Again, this paper does not take a position on those recommendations for broader legal reform. Rather, it considers the more immediate possibility that courts might recognize the supports provided by personal support networks on a case-by-case basis – that is, examine all the facts of a particular network arrangement, and if satisfied that “the need for decisions to be made will be met”, recognize the arrangement as an alternative to guardianship under ss. 22(3) and 55(2). The Court in Gray seems to have taken this approach, apparently viewing the alternative course of action provision as requiring a case-by-case assessment rather than a set process:
There are approximately 1000 individuals who will be transferred from these three institutions; their capacities and their needs in reference to the decision-making process will differ significantly. It is not possible to dictate a process for obtaining consent to community placements that will apply in every case. However, the objective will always be the same, which is to act in the best interests of the incapable person.
Thus, while the alternative course of action provisions arguably open the door for a comprehensive supported decision-making regime, they also do not preclude more modest case-by-case recognition of decision-making supports in personal network context.
As with the accommodation approach discussed above, recognizing a personal support network as providing adequate supports and protection in a particular case would not entrench any particular kind of network, or networks at all. Rather, it would recognize that in that particular situation, the network arrangement was working well and meeting the objectives of the SDA.
On the other hand, as with reliance on the duty to accommodate, there are significant limitations to this kind of approach. First, in situations that are working well, it is unlikely that anyone would be seeking guardianship to begin with. Persons seeking guardianship – a process that entails significant effort and expense – will generally do so only where existing arrangements are perceived as flawed, or where additional legal authority (for instance, to interact with third parties) is required. Second, the court’s authority to recognize networks is extremely limited. Sections 22 and 55 give it the power to “not appoint a guardian” if there is a less restrictive alternative that meets the requirements of those sections. This gives it the power to leave the status quo in place; for instance, where the necessary decisions are being made (perhaps because a parent is involved as ‘unofficial guardian’), this would be permitted to continue. However, a court considering a guardianship application under the SDA does not have any authority to grant to a person’s network legal status to, say, interact with third parties. Put another way, the court can decline to appoint a guardian on the evidence of a network arrangement working well, but it has no authority to help create the less restrictive alternative. As the decision to grant a (corporate or individual) person legal status to represent another’s decisions can only be made by the legislature, this ultimately brings us back to the broader debate over the desirability, and potential contours of, a new supported decision-making law.