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