A.    Introduction

1.     The Framework Principles and the Problem of Abuse of Substitute Decision-making Powers

Issues related to abuse and exploitation form a persistent theme in laws related to legal capacity, decision-making and guardianship, and in the debates about them. These laws have their inception, in part, in the desire to prevent abuse of persons who are at risk due to impairments in their cognitive abilities. The very nature of the impairments that result in the loss or diminishment of the “ability to understand and appreciate” and that thereby result in the appointment of substitute decision-makers (SDMs), may be considered to increase the risk that unscrupulous individuals will be able to abuse these individuals without being detected or without the victims being aware of and able to exercise avenues for recourse. As Community Living Manitoba commented in a research study on mistreatment of women with intellectual disabilities,

The cognitive limitations experienced by women with a severe level of intellectual disability can render them unaware that they are in harm’s way. That is, they are unable to read the cues in others’ behaviours as menacing, exploitative or as potentially dangerous. Moreover, after the fact they may not be able to appreciate that they have been mistreated.[618]

As well, as disability is often associated with marginalization, persons with disabilities that affect their legal capacity may be in positions of economic or social vulnerability, increasing their risk of abuse. As is stated in the Vulnerable Adults and Capability Issues in BC: Provincial Strategy Document (the Vanguard Project),

The higher the level of social vulnerability or incapability, the greater the dependence that adult has on someone else. The greater the dependence is, the greater the risk for abuse or mistreatment exists.[619]

However, because legal capacity, decision-making and guardianship laws give some people power over others, the laws themselves may create opportunities for abuse. As the Vanguard Project Report notes,

The corollary of trust and power is that it always creates a potential for abuse. Thus, ironically, the very instruments designed to protect a person from some forms of abuse also create an opportunity for mistreatment. [620]

Given the significant restrictions on autonomy associated with substitute decision-making, and the power imbalances that such an order creates between the individual and his or her SDM, it is essential that any legal capacity, decision-making and guardianship system include meaningful mechanisms for preventing and addressing abuse and misuse. The imposition of a substitute decision-making regime, and particularly of a guardianship regime, without sufficient safeguards would raise significant issues of fundamental human rights. Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) specifically addresses concerns regarding abuse of persons who fall within legal capacity and decision-making law. Paragraph 4 of that Article states that,

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating 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. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

The LCO’s Framework for the Law as It Affects Older Adults adopted a principle of recognizing the importance of security which recognizes “the right to be free from physical, psychological, sexual or financial abuse or exploitation”, as well as the right to access basic supports such as health, legal and social services. The Framework for the Law as it Affects Persons with Disabilities includes the principle of facilitating the right to live in safety, emphasizing the “right of persons with disabilities to live without fear of abuse or exploitation and where appropriate to receive support in making decisions that could have an impact on safety”. During discussions and public consultations leading to both Frameworks, a central tension was identified between the principles of safety andsecurity on the one hand, and the principle of fostering autonomy and independence on the other hand, with concerns raised that the principles of safety andsecurity not be employed to reduce the autonomy and independence of older persons and persons with disabilities, so that persons with disabilities and older persons may, as others do, choose to live with some degree of risk without undue interference from others.

As was noted above, abuse, neglect and exploitation of older persons and persons with disabilities have some roots in the marginalization and devaluation of members of these groups. Negative attitudes and stigma, social isolation, economic precarity that reduces choice – all of these can contribute to the risk of abuse. In this way, the problem of abuse of persons through capacity and guardianship law is closely connected to a broader societal failure to sufficiently advance the principles of dignity and respect, and of participation and inclusion.  This context also highlights that while good law is important to the prevention, identification and response to abuse and exploitation, law alone can only be a partial solution.

2.     Situating the Problem of Abuse in Capacity, Decision-making and Guardianship Law

The focus of this Chapter is on the misuse and abuse of substitute decision-making powers, safeguards against such abuse and misuse, and potential amendments to laws related to legal capacity, decision-making and guardianship in this regard.  The problem of abuse of vulnerable persons is tied to many broader issues in law and policy, including provision of adequate social services, oversight and enforcement mechanisms for public services, and the criminal justice system. It is not the purpose of this Chapter, or indeed of this project, to address these other areas of the law.

It should be remembered that the Substitute Decisions Act (SDA) and Consent to Treatment Act (the predecessor to the Health Care Consent Act) were initially drafted in tandem with the Advocacy Act, as described in Part One, Chapter I.  That Act provided a quite extensive publicly financed system for ensuring support and advocacy for those falling within the scope of capacity and guardianship laws. It is the opinion of some that the repeal of the Advocacy Act “unbalanced” the legislation, leading to some of the problems with implementation and abuse. The role of supports and advocacy for persons who have been determined to lack or may lack legal capacity to make decisions in a particular domain is an overarching issue that was strongly raised in both of the LCO’s Framework projects and will be dealt with in the following Chapter of this Paper. 

Issues of abuse through the law and of misuse of the law are connected to every aspect of legal capacity, decision-making and guardianship laws, and thus to many other aspects of this Discussion Paper. Concerns about opportunities for abuse and misuse motivate both advocacy for and many of the objections to new decision-making arrangements such as supported decision-making (Part Three, Chapter I), and are a significant factor in considering who may act in a decision-making role (Part Three, Chapter II). As appointment processes provide a key opportunity for screening out potential abusers and ensuring that SDMs understand their responsibilities, considerations related to abuse are a significant factor in the design of appointment processes (Part Three, Chapter III). Effective mechanisms for rights enforcement and dispute resolution, which are addressed in the remaining Chapters in Part Four, are vital for identifying and addressing abuse. The problem of abuse must thus be considered in weighing almost every aspect of law reform in this area.

In identifying options for reform, this Chapter will not repeat materials from these other Chapters; rather it will focus on how these overarching issues apply to the specific problems of abuse, with particular focus on administrative mechanisms for addressing these challenges. These options should be considered in light of the full range of issues and options presented throughout this Paper. For example, a very rigorous screening process for appointments might be balanced by less onerous reporting or oversight processes or vice versa, or a strong comp