This Chapter sets out some of the background and contextual information that is helpful to understanding the operation of Ontario’s laws related to legal capacity, decision-making and guardianship, and to analyzing some of the issues related to reform of the law. It begins by providing some background information about decision-making. It then sets out some basic information about Ontario’s statutory scheme and its history, and provides some general information about the individuals affected by this area of the law and the contexts in which it operates.
A. Decision-making and the Law
1. The importance of decision-making
Decision-making has a public as well as a personal aspect. When we are interacting with other individuals or organizations, decision-making is also associated with other values, such as clarity, certainty and accountability. When others are being asked to rely on or implement our decisions, it is important for them to be sure that they understand the decision that has been made, that they can rely on the finality of that decision, and that all parties can be held to account to uphold their part of the decision. In this public realm, law plays an important role, for example in determining when an agreement is valid and we are entitled to rely on it, and when a party is liable for a breach of the agreement.
We make decisions all the time. Decisions may be large or small, routine or life-changing, complicated or straightforward, but regardless they are important as expressions of our values and identity, as opportunities to learn from both our successes and mistakes, and as the fundamental means through which we shape our lives. As the Queensland Law Reform Commission has commented, “Making decisions … empowers people by allowing them to express their individuality. It enables people to control their lives and gives them a sense of self-respect and dignity.” At this personal level, decision-making is connected to autonomy, dignity, security and other fundamental values.
Decision-making involves both a process and an outcome. In both the private and the public realm, considerable importance may be attached to the quality of the decision-making process. In the legal realm, for example, a contract is voidable where “undue influence” has tainted a party’s decision-making process, leading to an unjust result. In the private realm, the process of decision-making has a value in itself, apart from the merits of the ultimate decision: a “good” decision-making process (whatever one might consider that to be) may be viewed as enhancing the dignity of the decision-maker, promoting personal growth, or asserting their beliefs, individuality and autonomy.
2. Purposes of capacity and guardianship law
As the laws related to legal capacity, decision-making and guardianship have a very long history, they not surprisingly have been seen as fulfilling a number of different goals. Modern law reform in this area has articulated a number of purposes for capacity and guardianship law. The Health Care Consent Act (HCCA) clearly articulates its purposes in its opening section; while the purposes of the Substitute Decisions Act (SDA) must be inferred from an examination of the statute as a whole. Generally, the law’s purposes may be articulated as follows:
- facilitating, where necessary, decision-making for persons who have been determined to lack legal capacity;
- preventing undue interference in the lives and decisions of persons who have legal capacity;
- recognizing and promoting the role of supportive family and friends in the lives of persons who have been determined to lack legal capacity, as well as providing last resort decision-making mechanisms for those who do not have supportive family or friends;
- supporting individuals in planning for the possibility that they may be found to lack legal capacity at some point in the future;
- providing safeguards against abuse of persons who have been found to lack legal capacity;
- providing rules and principles for substitute decision-making that are clear and that promote both the autonomy and the basic security of persons who have been determined to lack legal capacity;
- ensuring basic procedural protections for persons whose legal capacity is lacking or in question.
3. The limits of the law
Laws related to capacity, decision-making and guardianship are and can be only partial responses to complex practical, ethical and social issues. In understanding this area of the law, it is important to take into account the complexities of family dynamics, the challenges raised by the shortages of resources available to persons with disabilities and their families, the ethical issues raised for families and service providers in their relationships with persons who are at risk for exploitation or abuse or who have difficulty in speaking or advocating for themselves, among other issues.
These laws exist in a larger context of social attitudes and structures that enhance or limit their effectiveness. Many of those interviewed by the LCO during the preliminary consultation process emphasized the severe shortage of community resources for older adults and persons with disabilities. Institutions and services such as hospitals, community mental health services and home care often lack the resources to provide sufficient supports to persons who are ill, frail or have disabilities. Family and friends, acting as unpaid caregivers, are often stretched to their limits in attempting to support their loved ones to live independently and with dignity in the community. In these circumstances, difficult decisions must be made, and the laws relating to legal capacity, decision-making and guardianship may be seen as or attempted to be used as tools to address painful and difficult issues.
No legislative regime can on its own fully address all of these issues. No law reform can provide supportive family members for all those who are isolated and vulnerable, prevent all abuse of at-risk individuals, or ensure that persons who are frail, ill or disabled always receive the supports that they deserve and require. Law reform in this area may be best understood as one thread, albeit a vital one, in a larger conversation about the rights and roles of persons with disabilities and older persons; the responsibilities of families, communities and government to provide supports; and the level and type of risk that we are comfortable with individuals, particularly vulnerable individuals, assuming.
The application of laws will be influenced by social norms and attitudes, in this case related to disability, aging and risk. As the LCO’s Framework projects emphasized, both older adults and persons with disabilities have been the subject of persistent paternalism and limiting attitudes with respect to their abilities to do and choose for themselves. These attitudes may influence the application of laws related to capacity, decision-making and guardianship, limiting the effectiveness of some of the provisions aimed at protecting the autonomy of those who fall within its reach. While law can have some effect in shifting norms, it cannot by itself transform them. The implementation of new laws will also likely be affected by the attitudes that currently shape the application of existing ones.
- QUESTION FOR CONSIDERATION: What should be the primary purpose or purposes of this area of the law?
B. A Little Legislative History
Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Ontario’s laws at that point, as found in the Mental Incompetency Act, the Mental Health Act, the Powers of Attorney Act and the Public Hospitals Act, were generally considered to be fragmented, dated, unwieldy, and unsuited to modern realities. Three separate law reform initiatives were undertaken during this time. As is evident from the current legislation, outlined in Section C of this Chapter, while this work profoundly influenced Ontario’s current laws, not all aspects of the recommendations of the various committees were finally adopted. In particular the final legislation contained much more minimal mechanisms for advocacy, supports and oversight.
1. The Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (“Fram Committee”): In 1984, the Attorney General appointed a committee, headed by Stephen Fram, to “review all aspects of the law governing, and related to, substitute decision making for mentally incapacitated persons and to recommend revision of this law where appropriate”. The Final Report of this Committee (“the Fram Report”), released in 1987, identified as underlying values for this area of the law freedom from unnecessary intervention; self-determination; and community living through access to support. Key approaches included:
- An understanding of the role of substitute decision-maker that aimed to maximize the autonomy of those determined to be incapable, including requirements related to respect for prior capable wishes, and a duty to support the participation of those found incapable in the decision-making process;
- Greater emphasis on and empowerment of family members as substitute decision-makers, particularly through reforms to the law related to powers of attorney, with guardianship as a last resort;
- Provision of advocacy and supports for those falling under the law, including rights advice in a wide range of circumstances and access to publicly funded advocacy services, with the intent to ensure that the values underlying the law were upheld; and
- A role for the Public Guardian and Trustee (PGT) as a “public safety net” that would have supervisory powers over attorneys and private guardians, act as a decision-maker of last resort, undertake an educative function, and have the power to act in emergency situations involving neglect, abuse or exploitation of persons lacking capacity.
2. Committee on the Enquiry on Mental Competency (“Weisstub Enquiry”): In 1988, the Ministry of Health created an Enquiry on Mental Competency, with Professor David N. Weisstub as its Chair. The Committee was given the task of developing a set of recommended standards for determining the mental competence of individuals to make decisions with respect to health care, management of financial affairs and appointment of a substitute decision-maker. The Final Report of the Weisstub Enquiry concluded that the process for testing capacity must respect both the principle of autonomy and that of best interests, as well as reflecting the importance of proportionality, administrative simplicity and relevance. The Final Report recommended codification of a presumption of capacity, a cognitive approach to the nature of capacity, situation-specific tests for capacity, time limitations on capacity assessments, and procedural protections for individual in the capacity assessment process.
3. Review of Advocacy for Vulnerable Adults (“the O’Sullivan Report”): In late 1986, the Attorney General of Ontario announced a Review of Advocacy for Vulnerable Adults, to be chaired by Father Sean O’Sullivan, to respond to concerns regarding “an unmet need for non-legal advocacy for vulnerable adults living in institutional care settings and in the community”. The Review identified a number of goals for an advocacy system for Ontario, including: providing safeguards against unnecessary guardianship; being independent; encouraging self-advocacy (self-determination) where possible; enhancing the role of family and friends; educating, delabeling and destigmatizing; being flexible; being responsive; promoting cooperation with providers and Ministries; being accessible; being reformative (seek improvements in programs); having clout; and being accountable. The O’Sullivan Report recommended the development of an Advocacy Commission, which would develop standards and procedures, as well as regional offices which would be directed by community-based boards and staffed by advocacy coordinators. These regional offices would assist in the development and appropriate funding of local programs tailored to the needs of the vulnerable adults in their particular communities.
This thorough law reform work provided the foundation for Ontario’s legislative reforms in the early 1990s, and as a result, Ontario has one of the most comprehensive and coherent schemes of the law governing capacity and decision-making in Canada. It has been described as “modern, internally coordinated and fairly thorough”.
In 1991, three new statutes governing legal capacity, decision-making and guardianship were introduced by the Ontario government: the Consent to Treatment Act, the Substitute Decisions Act (SDA), and the Advocacy Act. The Consent to Treatment Act and the Advocacy Act were both subjects of considerable debate and controversy. Critics expressed concerns that the advocacy initiative was “a bureaucratic mess, costly (in a time of increasing fiscal restraint), and intrusive into both the private lives of families and the prerogatives and competencies of professional groups”. The Advocacy Act was repealed in 1995 following a change in government, and the Consent to Treatment Act replaced by the current Health Care Consent Act (HCCA). Some aspects of the current legislative scheme are better understood if one takes into consideration that originally it was envisioned as including the ambitious and comprehensive advocacy scheme set out in the Advocacy Act. The Advocacy Act provided extensive entitlement to rights advice, as well as creating a publicly funded Advocacy Commission mandated to provide both individual and systemic advocacy on behalf of adults whose mental or physical difficulties created barriers for them in expressing or acting on their wishes, or in determining or accessing their rights. That is, the system was predicated on the provision of significant resources aimed at supporting the autonomy of persons with disabilities and safeguarding their rights.
The resulting statutory scheme, consisting of the SDA, the HCCA and Part III of the Mental Health Act (MHA) is described briefly in the following section.
C. Ontario’s Current Legal Context
It is not the purpose of this section to give a detailed overview of Ontario’s statutory regime for capacity, decision-making and guardianship. Rather, it aims to provide an overview of the foundational elements of the key statutes and its general approaches. Specific provisions are detailed in the relevant chapters where necessary to understand particular law reform issues and potential approaches to reform.
1. Foundational Law
Ontario’s statutory regime for legal capacity, decision-making and guardianship must be understood in the light of several foundational domestic laws and international instruments that govern the law or shape its interpretation and application.
The Convention on the Rights of Persons with Disabilities
The most significant of the instruments that the international legal community has created to advance the rights of persons with disabilities is the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD codified the commitments of the international community with respect to the rights of persons with disabilities, detailing the rights that all persons with disabilities enjoy and outlining the obligations of States Parties to protect those rights. Its purpose is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. It reflects social and human rights models of disability and therefore highlights the need for society to adapt to the specific circumstances and realities of persons with disabilities in order to ensure respect and inclusion. It r