Endnotes2017-04-04T15:13:07+00:00

[1] M Bach & L Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (2010), 6, online: Law Commission of Ontario <http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner>.

[2] Representation Agreement Act, RSBC 1996, c 405 (RAA).

[3] NA Kohn, JA Blumenthal, AT Campbell, “Supported Decision-making: A Viable Alternative to Guardianship?” (2013) 117:4, Penn State Law Review 1113.

[4] Vulnerable Persons Living with a Mental Disability Act, CCSM c V90.

[5] Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2.

[6] The legislation also cites other factors for the judge to consider.

[7] RAA, note 2, S 7(1)(c) and (2.1).

[8] Adult Guardianship and Trusteeship Act, note 5, s 17(2)(a).

[9] Health Care Consent Act, 1996, SO 1996, c 2.

[10] Substitute Decisions Act, 1992, SO 1992, c 30.

[11] Mental Health Act, RSO 1990, c m.7.

[12] Law Commission of Ontario, Persons with Disabilities: Final Report – September 2012 (2012), online: Law Commission of Ontario <http://www.lco-cdo.org/en/disabilities-final-report>.

[13] Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (2012), online: Law Commission of Ontario <http://www.lco-cdo.org/older-adults-final-report.pdf>.

[14] Law Commission of Ontario, Introducing the Framework: A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (2012), online: Law Commission of Ontario < http://www.lco-cdo.org/en/older-adults-final-report-framework>; Law Commission of Ontario, Introducing the Framework, Persons with Disabilities: Final Report” (2012), online: Law Commission of Ontario <http://www.lco-cdo.org/en/disabilities-final-report>.

[15] Law Commission of Ontario, note 14.

[16] Law Commission of Ontario, Funded Research Papers: Legal Capacity, Decision-making and Guardianship (2013), online: Law Commission of Ontario <http://lco-cdo.org/en/capacity-guardianship-call-for-papers>.

[17] UN General Assembly, Convention on the Rights of Persons with Disabilities (CRPD), resolution/adopted by the General Assembly, 24 January 2007, A/RES/61/106.

[18] UN General Assembly, note 17, Article 1.

[19] UN General Assembly, note 17, Article 19.

[20] UN General Assembly, note 17, Article 12. Emphasis added.

[21] RAA, note 2.

[22] Justice Marion Allan and Laura Watts, Study Paper on A Comparative Analysis of Adult Guardianship Laws in BC,
New Zealand and Ontario, Canadian Centre for Elder Law, October 2006, 7 (Comparative Study Paper, Oct 2006) (Allan and Watts).

[23] Patients Property Act, RSBC 1996, c 349.

[24] Allan and Watts, note 22, 10-11.

[25] Allan and Watts, note 22, 10-11.

[26] Allan and Watts, note 22, 8.

[27] Allan and Watts, note 22, 7.

[28] RAA, note 2.

[29] UN General Assembly, note 17, Article 1.

[30] See for example, Adult Guardianship Act, RSBC 1996, c 6, s 3; RAA, note 2, s 3; Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 3; Decision-Making Support and Protection to Adults Act, SY 2003, c 21, s 3; Adult Guardianship and Trusteeship Act, note 5, s 2; Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3, s 3; Vulnerable Persons Living with a Mental Disability Act, note 4, Preamble; The Health Care Directives Act, CCSM c H27, s 4; Substitute Decisions Act, note 10, s 2; Code civil du Québec, LRQ, c C-1991, s 154; Health Care Consent Act, note 9, Schedule A, s 4(2); Consent to Treatment and Health Care Directives Act, RSPEI 1998, c C-17.2, s 3; Hospitals Act, RSNS 1989, c 208, s 52; Advance Health Care Directives Act, SNL 1995, c A-4.1, s 7; Guardianship and Trusteeship Act, SNWT 1994, c 29, s 1.1; Guardianship and Trusteeship Act, SNWT (Nu.) 1994, c 29, s 1.1.

[31] Mental Disability Advocacy Center, Legal Capacity in Europe: A call to action to the EU and governments, 9, online: <http://mdac.info/sites/mdac.info/files/legal_capacity_in_europe.pdf.>.

[32] Mental Disability Advocacy Centre, Supported decision-making: An alternative to guardianship at 3, online: <http://mdac.info/en/resources/supported-decision-making-alternative-guardianship>.

[33] Mental Disability Advocacy Centre, note 32 (emphasis theirs).

[34] Mental Disability Advocacy Centre, note 32, 7.

[35] United Nations, Backgrounder: Disability Treaty Closes a Gap in Protecting Human Rights (2008), online: UN Enable <http://www.un.org/disabilities/default.asp?id=476>.

[36] CRPD, note 17.

[37] BC Adult Abuse and Neglect Prevention Collaborative, Vulnerable Adults and Capability Issues in BC: Provincial Strategy Document (2009),17, online: Canadian Centre for Elder Law <http://www.bcli.org/sites/defaults/files/Vanguard_%2816May09%29.pdf>.

[38] BC Adult Abuse and Neglect Prevention Collaborative, note 37.

[39] BC Adult Abuse and Neglect Prevention Collaborative, note 37.

[40] RAA, note 2.

[41] RAA, note 2.

[42] RAA, note 2, s 7(1).

[43] RAA, note 2, s 7(1).

[44] RAA, note 2, s 7(2). Re the exclusions in subsection c, consent to abortion or electroconvulsive therapy is permitted only with a written recommendation by the treating physician and another doctor, and consent to psychosurgery and a number of other treatments may never be provided by a representative.

[45] RAA, note 2, s 16(1).

[46] RAA, note 2, s 20.

[47] RAA, note 2, s 34(2).

[48] RAA, note 2, s 30.

[49] Yukon Decision-Making Support and Protection to Adults Act, note 30.

[50] Yukon Decision-Making Support and Protection to Adults Act, note 30, Part 1, s 4.

[51] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 5(1).

[52] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 8.

[53] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 11.

[54] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 9(1).

[55] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 12.

[56] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 15.

[57] Adult Guardianship and Trusteeship Act, note 5.

[58] Adult Guardianship and Trusteeship Act, note 5, s 4.

[59] Adult Guardianship and Trusteeship Act, note 5, s 4.

[60] Adult Guardianship and Trusteeship Act, note 5, s 13(4)(a).

[61] Adult Guardianship and Trusteeship Act, note 5, s 13(5).

[62] Adult Guardianship and Trusteeship Act, note 5, s 13(4)(c).

[63] Adult Guardianship and Trusteeship Act, note 5, s 17(1).

[64] Adult Guardianship and Trusteeship Act, note 5, s 10(1).

[65] Adult Guardianship and Trusteeship Act, note 5, s 86.

[66] Adult Guardianship and Trusteeship Act, note 5, ss 102-104.

[67]The Adult Guardianship and Co-decision-making Act, note 30.

[68] The Adult Guardianship and Co-decision-making Act, note 30, s 15.

[69] The Adult Guardianship and Co-decision-making Act, note 30, s 17(2).

[70] The Adult Guardianship and Co-decision-making Act, note 30, ss 6-7.

[71] The Adult Guardianship and Co-decision-making Act, note 30, s 12.

[72] A hearing is not required if the court orders that a hearing is not required – for example, where all parties consent.

[73] The Adult Guardianship and Co-decision-making Act, note 30, s 33.

[74] The Adult Guardianship and Co-decision-making Act, note 30, s 39.

[75] The Vulnerable Persons Living with a Mental Disability Act, note 4.

[76] The Vulnerable Persons Living with a Mental Disability Act, note 4, s 6(1).

[77] The Vulnerable Persons Living with a Mental Disability Act, note 4, preamble.

[78] The Vulnerable Persons Living with a Mental Disability Act, note 4, s 1.

[79] The Vulnerable Persons Living with a Mental Disability Act, note 4, s 6(2).

[80] We offered participants and host organizations the option of holding a focus group involving multiple experiential experts. Although the host organizations initially suggested a focus group approach, in the end all experiential experts preferred a one-on-one interview.

[81] P Gill, K Stewart, E Treasure & B Chadwick, “Methods of data collection in qualitative research: interviews and focus groups” (2008) 204:6 British Dental Journal.

[82] A Hardon, C Hodgkin & D Fresle, How to Investigate the Use of Medicines by Consumers (2004), 24, online: World Health Organization <http://apps.who.int/medicinedocs/pdf/s6169e.pdf> (Hardon, Hodgkin and Fresle).

[83] Hardon, Hodgkin and Fresle, note 82.

[84] For example, the researcher has conducted research and/or given research presentations in each of the jurisdictions.

[85] J Morse,“Strategies for sampling” in J Morse (Ed), Qualitative Nursing Research. A Contemporary Dialogue, 2d ed (Thousand Oaks, CA: SAGE Publications, 1991) 127-145.

[86] As explored in Hardon, Hodgkin and Fresle, note 82.

[87] Hardon, Hodgkin and Fresle, note 82, 24.

[88] LS Whiting, “Semi-Structured Interviews: guidance for novice researchers” (2008) Nursing Standard 22.

[89] CA Moser & G Kalton, Survey Methods in Social Investigation, 2d ed (Franham, UK: Gower, 1985), 20-61.

[90] CA Moser & G Kalton, note 89.

[91] CA Moser & G Kalton, note 89, 79.

[92] National Disability Authority, Report of the Commission on the Status of People with Disabilities (1996), online: National Disability Authority <http://www.nda.ie/website/nda/cntmgmtnew.nsf/0/9007E317368ADA638025718D00372224/$File/strategy_for_equality_01.htm>.

[93] CRPD, note 17.

[94] A Potok, A Matter of Dignity: Changing the World of the Disabled, (Toronto: Bantam, 2003).

[95] KA Heyer, “Disability Lens on Sociolegal Research: Reading Rights of Inclusion from a Disability Studies Perspective” in DM Engel & FW Munger, Rights of Inclusion: Law and Identity in the Life Story of Americans with Disabilities (Chicago: University of Chicago Press, 2003), 261.

[96] LA Chappell, “Emergence of participatory methodology in learning difficulty research: Understanding the context.” (2000) 28 British Journal of Learning Disabilities, 38-43; J Porterm & P Lacey, “Researching Learning Difficulties” (London: SAGE Publications, 2005).

[97] M Oliver, “Changing the social relations of research production” (1992) 7:2 Disability, Handicap and Society 101-114.

[98] R Garbutt “Is there a place within academic journals for articles presented in an accessible format?” (2009) 24:3 Disability & Society 357-371; N Hodge, “Evaluating life world as an emancipatory methodology” (2008) 23:1 Disability & Society 29-40; M Priestley, P Waddington, & C Bessozi, “Towards an agenda for disability research in Europe: Learning from disabled people’s organizations” (2010) 25:6 Disability & Society 731–746.

[99] N Watson, “Researching the lives of disabled children and young people, with a focus on their perspectives” (2012) 26:3 Children & Society 192-202.

[100] S Scambler, “Exposing the limitations of disability theory: The case of juvenile batten disease” (2005) 3 Social Theory and Health 144–164.

[101] M Nind, Conducting qualitative research with people with learning, communication and other disabilities: Methodological challenges (2009), online: University of Southampton <http://eprints.soton.ac.uk/65065>; A Young, “Obtaining views on health care from people with learning disabilities and severe mental health problems” (2006) 34 British Journal of Learning Disabilities 11-19; Economic & Social Research Council National Centre for Research Methods, Conducting qualitative research with people with learning, communication and other disabilities: Methodological challenges (2008) online: Economic & Social Research Council <http://eprints.ncrm.ac.uk/491/1/MethodsReviewPaperNCRM-012.pdf>.

[102] L Townson, S Macauley, E Harkness, R Chapman, A Docherty, J Dias & N McBulty, “We are all in the same boat: Doing ‘people-led research’” (2004) 32 British Journal of Learning Disabilities 72-76; C Harrington, M Foster, S Rodger & J Ashburner, “Engaging young people with Autism Spectrum Disorder in research interviews” (2013) British Journal of Learning Disabilities, in press.

[103] Watson, note 99.

[104] G Ottmann & J Crosbie, “Mixed method approaches in open-ended, qualitative, exploratory research involving people with intellectual disabilities: A comparative methods study” (2013) Journal of Intellectual Disabilities, in press.

[105] K Collins, A Onwuegbuzie & I Sutton, “A model incorporating the rationale and purpose for conducting mixed-methods research in special education and beyond” (2006) 4:1 Learning Disabilities: A Contemporary Journal 67-100; R Kitchen, “The researched opinions on research: Disabled people and disability research” (2000)  Disability & Society 25-47.

[106] G Teachman & BE Gibson, “Children and Youth With Disabilities Innovative Methods for Single Qualitative Interviews” (2013) 23:2 Qualitative Health Research 264-274.

[107] R Fassinger & S Morrow, “Toward Best Practices in Quantitative, Qualitative, and Mixed-Method Research: A Social Justice Perspective” (2013) 5:2 Journal for Social Action in Counseling and Psychology 69-83.

[108] Ottmann & Crosbie, note 104.

[109] K Stalker, “Some ethical and methodological issues in research with people with learning difficulties” (1998) 13 Disability & Society 5-19.

[110] N Groove, J Porter, K Bunning & C Olsson, C “Interpreting the meaning of communication by people with severe and profound intellectual disabilities: Theoretical and methodological issues” (1999) 23 Journal of Applied Research in Intellectual Disabilities 190–203; KR McVilly, R Burton-Smith & J Davidson, “Concurrence between subject and proxy ratings of quality of life for people with and without intellectual disability” (2000) 25 Journal of Intellectual and Developmental Disability 19–39.

[111] O Barr, R McConkey & J McConaghie, “Views of people with learning difficulties about current and future accommodation: The use of focus groups to promote discussion” (2003) 18:5 Disability & Society 577-597.

[112] MD Fetters, LA Curry & JW Creswell, “Achieving Integration in Mixed Methods Designs—Principles and Practices” (2013) 48:6 Health Services Research 2134-2156.

[113] Ottmann & Crosbie, note 104.

[114] PhotoVoice participants take photographs which represent their views and stories, then come together as a group to develop narratives for their photos.

[115] C Wang & MA Burris, “Empowerment through Photo Novella: Portraits of Participation” (1994) 21:2 Health Education & Behavior 171-186.

[116] LS Lorenz & B Kolb, “Involving the public through participatory visual research methods” (2009) 12:3 Health Expectations 262-274.

[117] This was not true of all experts. Three of the experts also identified as being “supporters” of persons with intellectual disabilities or dementia.

[118] BC Expert #3, with a background in government and academics.

[119] RAA, note 2.

[120] Valerie Temple and M. Mary Konstantareas, “A comparison of the Behavioural and Emotional Characteristics of Alzheimer’s Dementia in Individuals with and without Down Syndrome” (Spring 2005), 24 (2) Canadian Journal on Aging, 179-189, 187.

[121] Allan and Watts, note 22, 10-11.

[122] Vulnerable Persons Living with a Mental Disability Act, CCSM c V90.

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