A.    Introduction

Among the most significant issues raised in the LCO’s preliminary consultations for this project are those related to newly developing approaches to decision-making, such as supported and co-decision-making. These approaches represent a fundamental shift in approaches to the law, and have significant implications for almost every aspect of this area of the law. Advocates for these forms of decision-making would like to see one or both of them included in Ontario’s laws, whether as one option among a number, as a preferential option, or as replacing substitute decision-making altogether.

This chapter will examine the basic elements of supported and co-decision-making approaches, drawing some comparisons with substitute decision-making; outline some specific models for these forms of decision-making; and consider some implications and implementation challenges.

These newer approaches to decision-making are closely related to the shifts in conceptions of capacity that were outlined in Part Two, Chapter I, and have their basis in a social model of disability and human rights critique of existing approaches to legal capacity, decision-making and guardianship.

The various approaches to decision-making are based in differing assumptions and experiences about the nature of decision-making, the role of law, the characteristics of intimate relationships, and the nature of disability and aging. Those who spend much time on issues related to disability, aging and legal capacity tend to share a strong commitment to the principles of dignity, autonomy, inclusion and participation, and the right to be free from exploitation and abuse. However, in practice there may be profound differences in how these principles are understood and on the best way to achieve them.       

Some of these differences in approach are rooted in the divergences in experience and circumstance among those affected by the law of legal capacity, decision-making and guardianship. The needs and aspirations of a young adult with an intellectual disability in this area will be very different from those of a widow who is living with mid-stage Alzheimer’s Disease and residing in a long-term care home, and these will differ again from those of a person who has been living for a number of years with a severe and recurring mental health disability that has significantly affected his or her social and economic resources. The nature of an impairment, the life stage at which it occurs and the point in the life course at which resort must be made to legal capacity and decision-making laws will have very significant implications for the extent and nature of a person’s relationships, the financial resources available (and the resultant temptations to abuse), and the nature and availability of appropriate supports and resources. All of these will in turn have significant implications for the way in which individuals will encounter the laws in this area. It is essential, then, that thoughtful and respectful attention be paid to these differences in perspective and experience in considering approaches in decision-making, and that the possibility be explored that one size may not, in fact, fit all those who fall under these laws.

It is also very important to take into account the grounded experience of those who provide daily supports to those whose disabilities may have affected their ability to access, retain, assess and communicate information. While laws play a fundamental role in expressing and shaping values and norms, those who are providing decision-making supports of various kinds are not likely to have an in-depth awareness of the legislation or to regularly resort to it in resolving their practical challenges. Often, they will be guided by their own values and set of ethics, the practicalities of the situation, the skills they have and the nature of their relationships,. And of course, their own contexts will shape how they understand and carry out these roles: their cultures, their socio-economic status, the family and social supports they themselves have, the resources available in the communities in which they lives, and many other factors. Many family and friends who are acting under a power of attorney or as a guardian will in practice be carrying out their role in a way that looks very like what is envisioned by advocates of supported decision-making; equally, those acting as supporters may at times find themselves performing their roles in ways that functionally differ very little from those of substitutes. In considering particular law reforms, a key consideration should be the practical impact on the lives of persons who lack legal capacity and those surrounding them.

Finally, Part One, Chapter I of this Paper included a brief discussion of the multiple aspects of decision-making. Decision-making includes both processes and outcomes, and both a public and a private aspect. In theory, an ideal approach to decision-making would maximize all of these aspects; in practice, they are not always so easily reconciled. Different approaches to decision-making will balance and prioritize these aspects differently.

These new forms of decision-making are still evolving. Terminology varies, sometimes widely: multiple terms are often used to describe the same concept and conversely, the same terms are frequently used to refer to approaches that have very different practical implications. There are ongoing conceptual and philosophical debates. The role of the LCO is to develop practical, implementable and forward-looking proposals for law reform in this particular context, in light of the principles and considerations in the Frameworks. The purpose of this Chapter is not to exhaustively explore the concepts of supported and co-decision-making and the philosophy underlying them, but to consider potential practical implications for reform to Ontario’s law, a law which is grounded in a particular history and which operates in the context of a specific set of institutions, resources and constraints.

As a starting point for the discussion of alternative approaches, this Chapter will discuss the provisions of the Convention on the Rights of Persons with Disabilities (CRPD) related to approaches to decision-making, and then will briefly outline the key aspects of Ontario’s current substitute decision-making approach, prior to more in-depth examinations of supported and co-decision-making.

 

B.    The Convention on the Rights of Persons with Disabilities

Central to this discussion is the CRPD which Canada has ratified, and in particular Article 12, which has been reproduced and discussed in Part One, Chapters I and Part Two, Chapter I. Article 12 requires States Parties to:

  • Recognize persons with disabilities as persons before the law;
  • Recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life;
  • Take appropriate measures to provide access for persons with disabilities to the supports they may require in exercising their legal capacity;
  • Ensure that all measures related to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse.  These safeguards must ensure that measures related to the exercise of legal capacity respect the rights, will and preferences of the person; are free of conflict of interest and undue influence; are proportional and tailored to the person’s circumstances; apply for the shortest time possible; and are subject to regular review by a competent, independent and impartial authority or judicial body.
  • Take all appropriate and effective measures, subject to the provisions of the Article, to ensure the equal rights of persons with disabilities in a range of areas, including owning or inheriting property; controlling their own financial affairs; having equal access to bank loans, mortgages and other forms of financial credit; and ensuring that persons with disabilities are not arbitrarily deprived of their property.

There has been considerable debate about the implications of Article 12 for approaches to decision-making. For the purposes of this Chapter, the key issue is whether the CRPD is best understood as recognizing an inalienable and non-derogable right for persons with disabilities to be considered legally capable at all times, or whether it protects them from discriminatory determinations of incapacity based on disability status. The consequences arising from these two interpretations are quite different. The first interpretation would eliminate substitute decision-making as a valid approach. A person would retain the ultimate legal authority to make decisions in all circumstances and the receipt of supports would be premised on consent.[308] The second interpretation would require governments to design and apply capacity laws in a non-discriminatory manner.[309] Opinions differ as to what specifically this second approach entails, although at minimum it would seem to include protection of specified equality rights, access to supports to decision-making, and provision of appropriate safeguards against abuse related to the exercise of legal capacity.

Canada’s Declaration and Reservation on the CRPD states that “Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”.[310] It declares Canada’s understanding that Article 12 permits substitute decision-making arrangements as well as those based on the provision of supports “in appropriate circumstances and in accordance with the law”,[311] and reserves the right for Canada “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”.[312]

 

C.    Substitute Decision-Making in Ontario

1.     Approaches to Substitute Decision-making in Ontario

Substitute decision-making remains the most common approach to decision-making in common-law jurisdictions. However, it varies quite significantly between jurisdictions. Due to the thorough law reform efforts of the 1980s and 1990s, Ontario’s approach to substitute decision-making is relatively modern, coherent and progressive. The key elements of Ontario’s system, for the purpose of this Chapter, are outlined below. As they are discussed in detail in other chapters, these elements are referred to in summary fashion here.

Cognitive capacity threshold: As is outlined in Part Three, Chapter I, the threshold for legal capacity is based on the individual’s ability to “understand and appreciate” the information relevant to a particular decision. While legal capacity may evolve or fluctuate, and while it is specific to particular decisions or types of decisions (i.e., it is not “plenary”), it is an all-or-nothing quality. A person either has legal capacity to make a particular decision or does not. Where an individual does not have legal capacity to make a particular decision or type of decision, a surrogate (the “substitute decision-maker” or SDM) will make the decision on behalf of that person, taking with it related responsibilities.

Procedural protections for persons who may lack legal capacity: While protections may not be complete or ideal, as is described in Part Three, Chapter II, Ontario’s statutory scheme pays considerable attention to procedural protections for persons who may lack capacity, including mechanisms for providing information to the individual and for challenging decisions about legal capacity.

Opportunities for individuals to choose or have input in the selection of a substitute: Part Three, Chapter II describes the process of identification of an SDM. Ontario’s legislation aims to make it relatively simple and inexpensive for individuals who are legally capable to select their own SDM for property, personal care or treatment decisions through the creation of powers of attorney (POA). Ontario places relatively few restrictions on the content of POAs or requirements for their valid creation. As well, when guardians are identified, either through the statutory guardianship process’s replacemen