1. The Importance of Effective Dispute Resolution and Rights Enforcement Mechanisms
Dispute resolution and rights enforcement are closely connected to almost all of the other issues raised throughout this Paper. Without effective mechanisms to enforce the rights and responsibilities set out in the statutes and to resolve disputes between those falling within the scope of the law, the law amounts to little more than a statement of aspirations.
As has been noted throughout the Paper, many stakeholders (though certainly not all) find themselves in agreement with the essential approach of the current legislative regime, with its domain and time-specific understanding of capacity; its focus on safeguarding capable individuals from paternalistic interference; its requirement for substitute decision-makers to support the autonomy and inclusion of the persons for whom they act; and its careful provision of procedural rights. Their concern is that in practice, the legislation does not deliver on its promise. Some significant portion of the responsibility for that shortfall is attributed to gaps and shortcomings in the mechanisms for rights enforcement and dispute resolution. For those who advocate a more significant re-shaping of the fundamental premises of Ontario’s statutory framework, improved and accessible dispute resolution and rights enforcement mechanisms are identified as an important component in a new system.
Effective mechanisms for rights enforcement in particular are important, not only to ensure that individuals have meaningful access to the rights and protections accorded to them by the statute, but also for identifying and redressing systemic problems with the law itself or its implementation. Where rights enforcement and dispute resolution systems have no ability to identify and address systemic issues, problems with legislative drafting or approaches may never become sufficiently visible to spur change, major institutional actors may be able to disregard the requirements of the law with relative impunity, and the costs of ensuring compliance with the legislative scheme will fall on the shoulders of individuals who are relatively under-resourced.
Specific issues related to rights enforcement and dispute resolution are one aspect of the larger concern in this area regarding access to the law, which is the subject of this Part of the Paper. This Chapter will focus on the characteristics of decision-making forums, while the previous Chapter addresses options for preventing and identifying abuse by substitute decision-making powers (with a particular focus on administrative mechanisms); the following Chapter addresses supports needed to access the law, such as assistance with navigating through complex systems; and the final Chapter in this Part deals with provision of information and education.
2. Dispute Resolution and Rights Enforcement in the Context of Legal Capacity, Decision-making and Guardianship
In considering what might make for effective dispute resolution and rights enforcement for legal capacity, decision-making and guardianship laws, it is necessary to consider the particular context of these laws and the characteristics of those they affect.
Characteristics of this Area of the Law
In designing systems for dispute resolution and rights enforcement for this area of the law, the most important aspect to keep in mind is its effect on the fundamental rights of those who fall under it, and its far-reaching effects on the well-being of these citizens. All of the principles identified in the LCO’s Frameworks are profoundly implicated in these laws. Decisions as to whether a person has legal capacity, whether or not to appoint a guardian or to terminate a guardianship, who should act in the role of a substitute decision-maker, and whether that substitute decision-maker is adequately fulfilling her or his duties (for example, upon the passing of accounts) have life-altering implications.
It has been suggested that many aspects of this area of the law sit uneasily with the traditional adversarial model of dispute resolution. The Victorian Law Reform Commission, commenting on the processes of the administrative tribunal [VCAT] that addresses issues related to capacity, decision-making and guardianship in that jurisdiction, comments that these issues differ from most other issues dealt with by tribunals in that there is no dispute between litigants to resolve. Rather,
VCAT is being asked to act as the representative of the state in deciding whether a person is unable to make their own decisions because of a disability and whether another person should be appointed to make those decisions for them. This task is not well served by employing traditional – or even more modern – `dispute resolution` processes. The Commission believes that this task would be better served by acknowledging the unique nature of Guardianship List matters and by designing special processes for use in these cases that are as informal and accessible as possible.
As has been emphasized throughout this Paper, this area of the law must be understood in the broader context of the laws and supports available to older persons and persons with disabilities, including the interaction with mental health laws, income support programs, privacy and access to information laws, and the laws and structures related to health care, long-term care and social services. These are all areas of considerable legal and structural complexity, and in many cases under significant resource pressures.
Laws and systems related to legal capacity, decision-making and guardianship are complicated, perhaps unavoidably so, dealing as they do with concepts that are abstract but have profound practical implications; difficult trade-offs between accessibility, efficiency and procedural protections; and complex health and social service systems. This complexity makes the law difficult to navigate, creating additional difficulties in designing meaningful mechanisms for dispute resolution and rights enforcement.
Concerns about rights enforcement and dispute resolution in this area are exacerbated by perceived shortcomings elsewhere in the statutes. For example, in the absence of active monitoring or oversight mechanisms for persons acting under a power of attorney (POA) or as guardians, the provisions for passing of accounts or a request for directions from the Court take on an extra significance. For those who would advocate for reduced use of guardianships, inadequacies in procedural protections and reassessment mechanisms for capacity assessments raise additional concerns about the ability of the current system to respect fundamental autonomy rights. Pervasive concerns regarding lack of awareness and understanding of the law apply here as well: individuals and substitute decision-makers (SDMs) are frequently unaware not only of their rights and responsibilities under the law but of the avenues for raising and addressing issues. Dispute resolution and rights enforcement are best understood as one aspect of the inter-connected statutory framework.
As well, any discussion about access to capacity and guardianship law must be situated in the broader context of access to the law in Ontario in general. There have been, in recent years, many expressions of concern and calls for reform to Ontario’s civil justice and legal aid systems, as well as a number of initiatives aimed to ameliorate some of these concerns.
For example, one important aspect of access to the law is access to legal advice and representation, whether through lawyers or paralegals. The special provisions for representation under legal capacity and guardianship laws are discussed in the following Chapter, and include provision of Legal Aid funded counsel for certain applications to the CCB and “section 3” counsel for persons whose capacity is in issue under the SDA. In general, however, the high cost of legal services has frequently been identified as a significant barrier for middle and low income individuals, and the cost of legal services was repeatedly raised as a concern during the LCO’s public consultations for the Framework projects. Some very low-income individuals may have access to legal services through Legal Aid Ontario; however, income criteria are restrictive, as are the range of issues addressed. In 2006, Ontario became the first jurisdiction in North America to license paralegals, who can represent individuals and provide legal services related to tribunal hearings, Small Claims Court, traffic matters and minor criminal matters. The Law Society of Upper Canada administers a Lawyer Referral Service that provides individuals with a no-charge 30 minute consultation with a lawyer or paralegal. Pro Bono Law Ontario facilitates pro bono legal services to low-income individuals for civil (non-family) legal issues not covered by legal aid. As well, JusticeNet is a not-for-profit service helping people in need of legal expertise, whose income is too high to access legal aid and too low to afford standard legal fees. Despite these various initiatives to improve access to free or low-cost legal services, the cost of legal services remains a serious problem.
Common Types of Disputes
This section provides a very brief overview of the types of disputes and rights enforcement issues that commonly arise in this area of the law. Specific issues have been dealt with in the appropriate chapters, particularly those addressing capacity assessment mechanisms, the use of powers of attorneys and guardianships, and the appointment of SDMs. This section does not attempt to replicate that material, but simply to highlight aspects particular to concerns about dispute resolution and rights enforcement.
Challenging Findings Regarding to Capacity: A determination of a lack of legal capacity will have a transformative effective on an individual’s life. A finding of incapacity under the Substitute Decisions Act (SDA) can result in long-term removal of decision-making authority from the individual, whether through the activation of a POA or through the appointment of a guardian. While findings of incapacity under the Health Care Consent Act (HCCA) are for specific decisions only and do not result in the long-term appointment of an SDM, decisions about admission to long-term care or treatment can have long-term and profound impacts on an individual’s life. Given the central importance we place on individual autonomy, self-determination and the ability to participate in society, a determination that an individual lacks legal capacity, with all that it entails, is one that should not lightly be made.
Recognizing this, both the Enquiry on Mental Competency (“Weisstub Report”) and the Report of the Advisory Committee on Substitute Decision Making for Mentally Incompetent Persons (“Fram Report”) emphasized the importance of adequate procedural protections surrounding capacity assessments, to ensure that SDMs are only appointed for those who truly need them. The Weisstub Report recommended, alongside a number of important procedural protections, that a Review Board (rather than the courts) provide expert review of assessments through a hearing process, and that individuals should have access to rights advice or a patient advocate or both. The Fram Report emphasized the importance of safeguards to protect the rights of individuals who might not, without assistance, have the ability to oppose proceedings that remove fundamental rights.
Identifying the Appropriate Substitute Decision-maker: In some cases, following an assessment of incapacity there is confusion or dispute regarding the identification of the appropriate SDM. There may be dispute, for example, about the validity of a POA or in some cases competing POAs, or confusion as to the application of the HCCA’s hierarchical list of SDMs. Family members may disagree as to who should be appointed as guardian. Such disputes may entail allegations of exploitation, abuse or neglect.