A. The Law Commission of Ontario’s Project on Legal Capacity, Decision-making and Guardianship
The law of legal capacity, decision-making and guardianship has a profound impact on the lives of the individuals who fall within its scope. The opportunity to make decisions for ourselves is fundamental to our autonomy, our security and our conceptions of ourselves, and we generally think of the ability to choose for ourselves as a fundamental right that can only be restricted where well-justified.
Ontario has a relatively modern and sophisticated legal regime addressing situations where decisions are needed but decision-making abilities may be at issue. Ontario’s law on legal capacity, decision-making and guardianship is the result of extensive and thorough law reform work carried out in the late 1980s and early 1990s.
Nonetheless, during the Law Commission of Ontario’s (LCO) two projects on the law as it affects persons with disabilities and the law as it affects older adults, issues in this area were identified as a central priority for reconsideration and reform by people in both communities, reflecting considerable concern about how the law was operating in practice, and its impact on the autonomy, security, dignity and inclusion of older adults and persons with disabilities. As well, since the law reforms of the 1990s, there have been significant demographic, social and attitudinal changes, as well as important developments on the international stage. In recent years, many jurisdictions have re-examined their laws in this area, including the province of Alberta, the Yukon, Ireland, the Australian states of Victoria and Queensland, and others.
In September 2011, the LCO’s Board of Governors approved a project to review Ontario’s statutory framework related to legal capacity, decision-making and guardianship, with a view to developing recommendations for reform to law, policy and practice in this area. The project will take as its analytical foundation the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities, the final reports for which were released by the LCO in the latter half of 2012. Work on this project commenced very late in 2012, and the project was officially launched at the LCO’s Symposium in January 2013. This Discussion Paper is the first publication in this project, to be followed by Interim and Final Reports.
B. The Scope of the Project
The law related to legal capacity, decision-making and guardianship is very broad. As well as the statutory core of the Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA), law related to capacity and decision-making can be found in the common-law, health information and privacy laws, mental health law and many other areas. It touches on almost every area of life, including consent to treatment, financial matters, marriage, wills and estates, the ability to pursue litigation, participation in research, and more. The full scope of this area of the law is beyond what can be tackled in any one project. It was important in developing this project that the LCO focus on those areas where law reform is most urgent.
1. Determining the Project Scope
Therefore, following the approval of this project by the Board of Governors, the LCO conducted considerable preliminary research and consultation, including approximately 70 interviews with a wide range of organizations and individuals, to assist in the following:
- Understanding the key contexts in which the law operates and how the effects of the law differ for various populations and in different contexts;
- Identifying the areas where review and law reform would be most beneficial;
- Understanding the goals which law reform should attempt to promote; and
- Identifying other current initiatives that may in the near future impact on this area of the law and on the LCO’s project.
Based on the above, and the input of the LCO’s Advisory Group for this project, the LCO has defined the scope of this project.
The LCO’s project on legal capacity, decision-making and guardianship will concentrate on the provisions of the SDA and the HCCA. It will not address the common-law on legal capacity and decision-making, or the provisions of the Personal Health Information Protection Act (PHIPA).
The project will consider some specific aspects of the Mental Health Act (MHA). This is a complex statute that addresses a wide range of issues, only some of which directly relate to legal capacity and decision-making. It is in many ways integrally connected with the SDA and the HCCA. There are many individuals who fall within the ambit of all three statutes, and the experiences of those individuals cannot be properly understood without carefully considering the relationship between the three statutes. The focus of this project is on legal capacity and decision-making, and it is not its aim to reform the MHA in general. This project will not, for example, deal directly with the complex issues associated with involuntary admission under the MHA. However, the LCO will specifically examine those provisions of the MHA directly referencing legal capacity and decision-making, most importantly Part III relating to assessment of capacity to manage property. As well, in analyzing the impact of the SDA and HCCA, it will recognize the operation of the MHA as an important context for many individuals.
Within the ambit of the SDA and the HCCA, the LCO will focus on the following broad issues:
- The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the SDA, HCCA and MHA;
- Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
- Processes for appointments (for example of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
- The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
- Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
- Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.
2. Project Themes
Analysis of these issues will be informed by a number of overarching themes, in particular:
1. Diversity in the experiences and needs of those who are directly affected by this area of the law: While those who are directly affected by Ontario’s legal capacity, decision-making and guardianship laws will share some experiences and circumstances in common, there is considerable diversity as well. The differences in the life courses, support networks, and impairments of, for example, a young adult with an intellectual disability, a person who experiences a traumatic brain injury in mid-life, and older person who develops dementia will profoundly shape how they encounter this area of the law, and the needs that the law is expected to meet. As well, other forms of identity or life experience will also affect how the law is experienced. For example, the ways in which individuals demonstrate decision-making abilities (and therefore how their legal capacity is assessed) will be affected by cultural norms. This diversity will, on some issues, pose challenges in determining the most appropriate approach to law reform.
2. Attitudes, understanding and the role of education: the application of this area of the law is significantly influenced by the attitudes of individuals, families, professionals and institutions towards disability, aging, risk and autonomy, and the role of families, among other issues, as well as understanding of the purposes and provisions of the law. Law may both reflect and shape attitudes. Effective implementation of law reform may require a focus not only on the substance of the law, but on providing education and information to all those it touches.
3. Families and interdependent relationships: At the heart of many of the issues raised by the law in this area of the law are the families and other close personal relationships of those directly affected. Family dynamics are complex. The social supports that we provide to persons with disabilities rely heavily on the supports provided by families, but many individuals do not have such supports, for a variety of reasons. Families may be profound sources of support and empowerment; they may also be sources of mistreatment and abuse. It is also important to recognize that family members have their own needs, which may sometimes conflict with those of the individual with a disability. How we conceive of families, and what we think appropriate and realistic to expect of them will significantly affect the options available for law reform.
4. Public and private roles: Related to the previous theme, is the question of the appropriate role of public institutions with respect to providing supports, oversight or interventions. To what degree is this an area where individuals should be free to make ill-informed or ill-advised choices (e.g., in developing a power of attorney) and then to suffer the sometimes very serious consequences? In what circumstances is it appropriate for public institutions to intervene in private family dynamics? What is the responsibility of government for providing information and supports to ensure that individuals have appropriate options, and the resources to understand their options and to access them?
5. The implementation gap: In many aspects of the laws of capacity, decision-making and guardianship, concerns arise not so much from the specific wording of the statute, as from the way in which it has been implemented. This includes concerns regarding lack of sufficient information and education for those operating in the system, inadequate monitoring and oversight mechanisms, lack of coordination between different parts of the system, and a shortage of resources at a number of levels.
6. Access to advocacy and supports: Because this area of the law affects individuals who may be vulnerable or marginalized in a variety of ways, and because the law is extremely complex, many have pointed to a need for greater supports for affected individuals in understanding options, navigating systems and problem-solving.
7. Simplification and proportionality in process design: In attempting to respond to multi-dimensional issues and diverse experiences, systems may become complex, fragmented and cumbersome. Such complexity can be a significant barrier to accessing the law, a concern raised both with respect to assessment of capacity and for processes for entering and exiting guardianship. In designing laws and processes for addressing this area of the law, careful thought must be given to balancing the degree of process and procedural protections with the gravity of the issue at stake, and where possible and appropriate, to simplifying processes to make them more accessible and efficient.
8. Monitoring and evaluation of the legislation: It is important for the success of any law reform to include mechanisms for transparency, accountability and regular evaluation of the effectiveness of the law in achieving its purposes. This includes building opportunities for public feedback and for gathering meaningful data about the operation of the law.
3. Taking a System Perspective
The issues and themes identified above are all inter-related and interdependent. For example, the challenges related to processes for appointments have implications for monitoring, accountability and the prevention of abuse, and both are related to concerns regarding dispute resolution processes. Potential reforms to any one of these issues cannot be analyzed in isolation: they will have implications across legal capacity, decision-making and guardianship laws. That is, each issue or theme must be approached as one part of a larger system.
This is true for efforts to understand the operation of Ontario’s current law, and the potential impact of any particular change on the law as a whole. It is also true for analyzing other capacity and guardianship systems as sources of ideas for potential reforms to Ontario’s laws. In considering the United Kingdom’s thorough registry system for all substitute decision-makers, or the operation of the Australian state of Victoria’s Visitor programs, it is important to understand how these particular features fit into the overall picture of their jurisdiction’s legislation in the area, as well as into that jurisdiction’s broader scheme for providing services and supports for those who are disproportionately affected by legal capacity and decision-making laws, such as persons with mental health disabilities, intellectual disabilities or cognitive disabilities associated with aging.
In considering Ontario’s laws in this area as a system, one might think of it as having two components. At the core are a set of approaches to the central issues: what is “capacity” and what should the role of this concept be with respect to decision-making? Who should determine whether a particular individual has this quality of “capacity” and how should this be done? Who should be able to assist persons who face challenges in making decisions, and what should their role be? What type of legal arrangement should be required to formalize these assistive roles? Surrounding this core are mechanisms for implementing these approaches: systems for oversight, for education and training, for supports and for dispute resolution. Underlying all of this are assumptions about the fundamental principles and priorities that should guide the system, the relative roles of families and the state in providing supports, the nature of disability and aging, for example. These underlying assumptions will differ to some degree in every system, and will reflect the history, economy, culture and social structures of that jurisdiction.
In considering Ontario’s laws related to legal capacity, decision-making and guardianship, then, one must consider not only how particular aspects of the law operate, whether effectively or ineffectively, appropriately or inappropriately, one must consider how the system operates as a whole. This is a broad concern, going beyond any particular issue, although it will affect the way in which particular issues can be analyzed and addressed. Some important questions to consider when analyzing Ontario’s system for legal capacity, decision-making and guardianship are briefly identified below.
1. How well are we able to examine the system? Is the system as a whole transparent and accountable, so that users and stakeholders are able to determine, relatively effectively, whether it is meeting its goals and whether it is doing so appropriately and efficiently? For example, are there “feedback mechanisms” within the law, so that the operation of the system can be assessed? Are there means for gathering data about the particular functions of the system? Is information about the functioning of the system available to stakeholders and the public?
2. How well does the law operate as a system? Is it internally coordinated? Are there effective means of sharing skills and information across various parts of the system? Are there ways of identifying problems that cut across various parts of the system and enabling cooperative efforts to address those problems? That is, are there mechanisms to promote the efficient and effective functioning of the law as a coordinated whole?
3. Are there mechanisms for ongoing monitoring and evaluation of the law, so as to address problems affecting the system as a whole? Is there capacity or are there mechanisms to monitor the system, both in terms of its effectiveness in meeting its goals and in terms of the continued appropriateness of those goals?
These questions are briefly considered at the close of the Paper, in Part Five.
- QUESTION FOR CONSIDERATION: Within the identified scope of this Project, are there additional issues or themes that should be considered?
C. Applying the LCO Frameworks
As was noted above, this project grew out of the LCO’s two “framework” projects on the law as it affects older persons and the law as it affects persons with disabilities, which were completed in 2012. These two sister projects aimed, not to create specific recommendations for changes to particular laws, but to develop approaches to law reform relating to these two groups. These projects resulted in comprehensive Reports, as well as the Frameworks, which set out step-by-step approaches to evaluating laws, policies, practices and law reform proposals related to the two groups, based on a set of principles and considerations.
The application of the Frameworks to the LCO’s project on legal capacity, decision-making and guardianship has a number of implications for this project:
- The Frameworks are based on the recognition that persons with disabilities and older adults, in their different ways, face marginalization, discrimination and barriers to accessing justice; and that these realities must be taken into account in developing law reform proposals;
- The Frameworks are founded on a overarching value of substantive equality that applies to a set of principles; this project will evaluate the current law and proposals for reform against these principles with this overarching value in mind;
- The “implementation gap” between laws as written and as they are implemented was a key theme for both Frameworks, and the LCO’s research and consultations to date indicate that this is an important factor for this project as well; this highlights the importance of considering not only the law as written, but also the policies and practices through which it is implemented;
- The application of both Frameworks will assist in focussing attention on how the law in this area is experienced differently by affected individuals depending on the nature of the disability and the point along the life-course at which it is incurred, reflecting the importance of a life-course analysis;
- The Frameworks recognize that the process of law reform is itself important, and will significantly shape the outcome; the process for this project will be guided by the recommendations of the Frameworks.
While the Frameworks will form the analytical foundation for this project, it is important to keep in mind that there are a significant number of individuals directly affected by capacity and decision-making laws who are neither older persons nor persons with disabilities – they are individuals who have temporarily lost legal capacity due to a short-term illness or medical crisis that does not result in a disability. The experiences of individuals in this group may tend to be obscured by the use of the Frameworks as an analytical lens: it will be important not to lose sight of them.
Appendix A of this Paper sets out the Principles and Considerations for Implementation of each of the Frameworks for easy reference. The full Frameworks also contain a step-by-step process for evaluating laws, policies and practices, including a set of questions that assist in identifying and analyzing the application of the principles and considerations to the law. It should be noted that this project will seek to apply all aspects of the Frameworks, and not only the elements summarized in the Appendix. The full Frameworks can be accessed through the LCO website at www.lco-cdo.org.
It is also important to recollect that neither older adults nor persons with disabilities are subject to capacity and guardianship laws merely by those characteristics. These laws will disproportionately affect certain groups of older adults and persons with disabilities whose capacity is in question. As well, a broader group of older adults and persons with disabilities may be affected by the assumption that they may lack legal capacity and may fall within the ambit of the legislation. However, it is crucial that older age or disability not be conflated with a lack of legal capacity.
Finally, this project brings into focus the intersection between older age and persons with disabilities. As was discussed at length in both Framework projects, there are continuing differences of opinion as to who is or should be included in the definition of an “older adult” or a “person with a disability”. The LCO recognizes that definitions have different purposes in different contexts. The Framework projects adopted broad and inclusive definitions of “older adult” and “person with a disability” and the LCO will continue to do so for the purposes of this project. There is thus considerable overlap between the two groups, and the intersection will have important consequences for the experiences of individuals. For example, for a person who develops dementia later in life, their older age will have a significant impact on the way in which they experience their disability.
D. Project Methodology
In keeping with the approaches adopted in the Framework projects and in response to the issues and contexts raised by this project, the LCO has adopted the following approaches for this project:
1. Principles-based: in keeping with the approach of the Frameworks, the issues raised by various aspects of the law of legal capacity, decision-making and guardianship will be analyzed on the basis of the principles identified in the Frameworks, with a view to advancing substantive equality and with attention to the concept of progressive realization.
2. Attention to lived experience: the experiences of those who are directly affected by the current legal framework are essential to understanding the strengths and weaknesses of the current system and the options and goals for reform.
3. Interdisciplinarity: given the complex human problems and experiences at the core of this area of the law, the LCO will look, not only to legal sources and literature, but broadly to other disciplines, including medicine and other health sciences, philosophy, ethics, social sciences, and critical gerontology and disability studies.
4. Practicality and implementability: in view of the significance of the “implementation gap” in this area of the law and of the reality of constrained resources at multiple levels, the LCO will focus on developing recommendations that while forward-looking, are practical and implementable. It will also consider how existing resources and skills can be most efficiently and effectively used, for example through improved coordination.
5. Supporting connection and discussion: while the issues raised in this project apply in many contexts and affect many different individuals and organizations, there have been relatively few opportunities for discussion across contexts and groups. The LCO will be aim to facilitate conversations across disciplines, contexts and perspectives.
6. Inclusivity and accessibility: recognizing the great diversity among those affected by this area of the law and that significant groups of those so affected may face barriers in access to justice, the LCO will strive to carry out this project in a way that is accessible and inclusive of many kinds of diversity.
7. Evidence-based: in formulating recommendations, the LCO will be attentive to the qualitative and quantitative evidence available relating not only to Ontario’s experience, but to that in other jurisdictions in Canada and around the world.
This Discussion Paper marks a third phase for this project, following a project scoping phase that involved considerable preliminary research and consultation, and an intensive research phase that included the commissioning of five research papers. A list of consultees to-date and of the commissioned papers may be found in Appendix B to this Paper. This Discussion Paper will be followed by intensive public consultation. Information about the LCO’s public consultations and opportunities for input can be found in Ch XIII, “Participating in the Law Reform Process: the LCO’s Public Consultationss”. The response to these consultations, together with further research by the LCO, will provide the foundation for an interim report, which will set out draft analysis and recommendations. That interim report will be circulated for further feedback, prior to the development of a final report with recommendations.
- QUESTION FOR CONSIDERATION: What considerations should the LCO be aware of to ensure that law reform proposals in this area will be practical and implementable?
E. This Discussion Paper
1. The Contents of This Paper
This Discussion Paper is based on the research and public consultation that the LCO has completed to-date, including the completed commissioned papers, as well as preliminary consultations with a diverse group of stakeholders.
The Paper synthesizes the information gathered to this point, identifies key issues in this area of the law, and sets out some potential directions for reform, based on a review of laws in other jurisdictions, recommendations from other law reform initiatives, and the analysis of experts and advocates. It is intended as a foundation for public consultation and discussion on the issues identified. It is accompanied by a set of shorter, simplified documents intended to support the consultation process.
Part I of the Discussion Paper provides background about the project and about Ontario’s laws regarding capacity, decision-making and guardianship. Part II focuses on the concept of capacity, examining approaches to and tests for legal capacity, as well as mechanisms for carrying out capacity assessments. Part III explores issues related to decision-making, including questions regarding who may act in situations where a person is determined to lack legal capacity, alternative approaches to decision-making, and processes for appointing decision-makers. Part IV considers issues related to how the law is meaningfully accessed, including concerns about information, education and training; rights enforcement and dispute resolution; and identifying and addressing abuse. Finally, Part V highlights issues for ensuring effective law reform in this area, including how to incorporate monitoring and accountability mechanisms into new laws, and information on how to participate in the LCO’s public consultations.
2. How to Use This Paper
This Paper is one of a number of documents released by the LCO to support public consultations on reforms to Ontario’s laws on legal capacity, decision-making and guardianship.
It is accompanied by a much shorter Summary of Consultation Issues, which summarizes the key issues identified by the LCO through its research and preliminary consultation and includes questions to guide consultation. The Summary of Consultation Issues may be used to orient readers to the structure and topics of this extensive Paper.
The structure of this Discussion Paper mirrors that of the Summary of Consultation Issues. However, it examines the issues in considerably more depth, providing in each chapter a summary of the current law, an outline of the issues of concern along with background and context related to those issues, some analysis of the issues in light of the LCO’s Frameworks, and a description of options for reform that includes comparable programs from other jurisdictions. This material is intended to assist in identifying and weighing priorities and options for reform.
This area of the law is broad and raises many issues. Many readers will be interested in only selected topics, rather than the entire range of issues raised. It is not necessary to read this Paper in order or completely to respond to it. Each Chapter can be read as a standalone piece; however, since the issues are interconnected, there are also many references to other Chapters.
Each Chapter includes Questions for Consideration. These are intended to promote and guide discussion. In responding to this Paper, readers not need understand these questions narrowly, or understand them as exhausting all possible responses to the contents of the Paper. Questions are situated in the text of the Chapters, close to the discussion to which they are related. For convenience, they are also gathered at the end of each Chapter and in an Appendix at the end of this Paper.
F. Questions for Consideration
- Within the identified scope of this Project, are there additional issues or themes that should be considered?
- What constraints and opportunities should the LCO be aware of to ensure that law reform proposals in this area will be practical and implementable?
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