A.    Introduction

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.[729]

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,[730] 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.[731] 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.[732] Pro Bono Law Ontario facilitates pro bono legal services to low-income individuals for civil (non-family) legal issues not covered by legal aid.[733] 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.[734] 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”)[735] and the Report of the Advisory Committee on Substitute Decision Making for Mentally Incompetent Persons[736] (“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,[737] and that individuals should have access to rights advice or a patient advocate or both.[738] 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.[739]

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.

In some cases, these disputes arise out of or turn into protracted and bitter divisions between family members. Trusts and estates lawyers have sometimes analogized these to family law disputes, as family members may be competing for “custody” of an aging parent or sibling, with lifelong grievances and family dysfunctions arising to the surface. These situations may deteriorate into extended litigation, financed in part from the income and assets of the person they are nominally intended to benefit. Members of the Bar have pointed out that the legislation was not designed for these types of disputes:

When the Substitute Decisions Act and the Health Care Consent Act, 1996, were passed into law, they did not anticipate the degree to which these laws would be applied in the context of “high conflict” families. A significant number of court applications now involve substitute decision making for incapable adults and pit family members against each other. The legislation was never intended to address conflicts of this degree and type, and the current processes do not lend themselves to timely or appropriate resolutions.[740]

For example, in the long-running case of Abrams v Abrams, an aggressive family battle over a mother’s POA  that spanned several years of litigation and included numerous orders from the court,  DM Brown J commented that,

Based upon my review of the history of this proceeding and after reading the endorsements previously made by my colleagues, I have concluded that the applicant seems more interested in engaging in a war of attrition by motion than in moving to a final adjudication of the merits. At the same time, the record clearly shows that [the respondents’] conduct has contributed significantly to the delay in scheduling this matter for trial.[741]
…
[E]ach, in his or her own way, has bickered and delayed, leading me to believe that [the mother]’s best interests have been shoved to the back seat whilst other problems amongst these battling family members have been brought to the fore.[742]
…
Proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus – the assessment of the capacity and best interests of the person whose condition is in issue. This court, as the master of its own process and as the body responsible for protecting the interests of the vulnerable identified by the Legislature in the SDA, should not and will not tolerate family factions trying to twist SDA proceedings into arenas in which they can throw darts at each other and squabble over irrelevant side issues.[743]

The Toronto Star recently highlighted a bitter and protracted battle for guardianship of a middle-aged man with an intellectual disability between his sister and his long-term caregiver, involving tens of thousands of dollars in legal fees, allegations of kidnapping and criminal activity, a disputed POA for personal care, and a payout under the Huronia class action lawsuit. The dispute was ultimately settled on the eve of a hearing into the sister’s guardianship application, with the agreement including a provision requiring mediation, to be paid for by both parties, prior to the commencement of any future action, and one of the parties commenting that the judge “would not be happy to see either woman back in his court”.[744]

Challenging the Decisions of Substitute Decision-makers: The HCCA and the SDA set out principles and standards for decision-making by substitutes. These principles may not necessarily lead to a single possible outcome. As well, there may be concerns as to whether the legislative principles have actually been complied with. The person under guardianship or power of attorney may wish to challenge a decision by an SDM, as may third parties such as non-SDM family members, or service providers. For example, health care professionals may challenge whether a family member acting as an SDM has made a legally appropriate decision with respect to consent to treatment. Further, where there are multiple SDMs (commonly, where multiple family members have been appointed as attorneys under a POA), there may be a dispute between the SDMs as to the appropriate course of action in a particular circumstance. 

Failure to Comply with Legislative Requirements: As has been discussed throughout this Paper, a key concern with the current legal framework in this area is the “implementation gap”, in which the law on paper does not meaningfully translate into law on the ground. There are many reasons for this gap, including ignorance or misunderstanding of the law, practical challenges and resource limitations. One important element is inadequate rights enforcement mechanisms. Where individuals find it too difficult to raise concerns or seek remedies with respect to inappropriate or abusive actions on the part of SDMs, service providers or implementing institutions, this raises not only individual issues but systemic ones.

Concerns About Abuse or Neglect of Persons Lacking Capacity: Concerns about abuse or neglect of persons who may lack legal capacity and the avenues available for addressing these were addressed at some length in the previous Chapter. These issues may manifest in a number of ways, for example, through disputes about the appropriate SDM, challenges to a particular decision of an SDM, or allegations of failure to comply with legislative requirements. In any case, such concerns raise some of the most complex and grave issues in this area of the law.

 

Characteristics of Those Affected by This Area of the Law

Concerns regarding rights enforcement and dispute resolution under the SDA should be understood in light of the circumstances that disproportionately affect persons with disabilities and older adults attempting to access the law, as identified in the Framework projects.  These include factors such as the following:[745]

Lower average levels of education and literacy: For historical reasons, older persons and particularly older women, currently have relatively lower levels of literacy and education than younger persons. Persons with disabilities continue to experience barriers to education, and therefore also tend to have lower levels of education and literacy than persons without disabilities.

Fixed or low-income: For different reasons, older adults and persons with disabilities tend to be excluded from or marginalized in the labour force. Some older persons, particularly unattached older women, live in very low-income, but even those who are more financially secure frequently live on fixed incomes which limit their ability to afford legal services. Income levels for persons with disabilities, whether employed or not, are markedly lower than for those without disabilities.

Health and activity limitations: Older persons and persons with disabilities tend to disproportionately experience health and activity limitations that may affect their physical or psychological ability to pursue complaints and seek redress. While progress is being made, accessibility barriers remain and may impede the ability of older persons and persons with disabilities to access justice system services.

Congregate living environments: Those who reside in congregate settings, such as long-term care homes and psychiatric facilities face special barriers in accessing information and resources, and will particularly face challenges in pursuing complaints related to their living environments or the professionals who provide them with services.

Power imbalances: persons with disabilities and older adults may find themselves dependent on the continued supports either of institutional service providers or informal carers. These power imbalances may make it very difficult for them to raise concerns about abuse, exploitation or neglect.

As well, persons with disabilities that affect their memory or understanding of information will face particular challenges in accessing the law. These types of disabilities may make it harder to individuals to find about their rights and the available mechanisms for enforcing them, and to navigate complex systems, particularly without effective supports. As well, persons with these types of disabilities may be considered to be unreliable witnesses and therefore have difficulty in having their concerns taken seriously. For example, concerns about financial abuse by a family member may be dismissed as simply being the result of confusion or misunderstanding on the part of the complainant. 

And of course where older age or disability intersect with other aspects of diversity, such as gender, sexual orientation, language, culture or others, there may be additional barriers to accessing the law. Persons from minority language communities, for example, may have difficulty finding information about their rights or options, or in communicating their concerns.

These characteristics have significant implications for how older persons and persons with disabilities access the law. They may face barriers in accessing information about their rights, independently navigating complex systems, pursuing options that have significant costs attached, or seeking redress against persons on whom they depend for vital supports. Systems that do not address such barriers may be practically inaccessible for these groups.

 

3.     Goals for Effective Dispute Resolution and Rights Enforcement

ARCH Disability Law Centre has suggested that effective dispute resolution systems in the area of legal capacity and decision-making must satisfy certain requirements, including:

  • Respecting the principle of accessibility, including the provision of supports to assist persons with capacity issues to access and use dispute resolution mechanisms;
  • Respecting the principle of inherent dignity and worth, which requires meaningful mechanisms for raising concerns about abuse or mistreatment;
  • Being effective, in that they are timely, navigable, and provided at no-cost to persons who live in low-income; and
  • Being performed by an independent, impartial body with knowledge of the law and of the context of legal capacity and decision-making.[746]

The Frameworks recommend that, in order to ensure that complaint and enforcement mechanisms respect the principles, those designing them consider whether

  • The law includes access to a complaint and enforcement mechanism that clearly and meaningfully identifies, addresses and remedies both individual and systemic violations of the law, including for those individuals who are particularly disadvantaged or at heightened risk;
  • The complaint and enforcement mechanisms are designed in a way that addresses power imbalances and prevents potential retaliation against those who raise issues;
  • The complaint and enforcement mechanisms are accessible, including respecting the Human Rights Code and Accessibility for Ontarians with Disabilities Act, providing appropriate accommodations, addressing barriers related to low-income, and recognizing intersectional identities;
  • The complaint and enforcement mechanisms are navigable, whether through their simplicity and transparency or through provision of navigational assistance;
  • Those affected are provided with meaningful and accessible information about their rights and how to enforce them; and
  • Supports are available to empower individuals to understand their rights and advocate for themselves.[747]

Considering the particular contexts of this area of the law, dispute resolution and rights enforcement mechanisms must be adapted to the gravity of the issues, as well as to the nature of the relationships in which many of the issues occur.

 

  • QUESTION FOR CONSIDERATION: What goals should be the priorities in considering reforms to Ontario’s dispute resolution and rights enforcement mechanisms for this area of the law?

 

4.     Avenues of Recourse Outside of the SDA and HCCA

In addition to the avenues of redress specifically identified under the SDA and HCCA, there are some general venues through which persons falling under legal capacity, decision-making and guardianship laws may seek assistance or remedies. The most important of these are the complaints procedures for the regulated professional colleges, as this is the mandated method of oversight and recourse related to formal capacity assessments. As well, individuals may have resort to ombuds-type services and internal institutional complaints procedures. It is not within the scope of this project to recommend changes to the internal processes of the regulatory colleges or of service provider institutions in general; however, it is important to understand the strengths and limitations of these pathways as part of the context for dispute resolution and rights enforcement in this area.

 

Internal Institutional Policies and Procedures

Many institutions have created internal mechanisms for addressing concerns or complaints. Part Four, Chapter I described how both the Social Inclusion Act and the Long-term Care Homes Act mandate and set standards for internal processes for addressing abuse. As is detailed at some length in the LCO’s Final Report on the Framework for the Law as it Affects Older Adults, agencies providing home care and other service under Home Care and Community Services Act are required to establish processes for receiving and reviewing complaints regarding eligibility, level and quality of services.[748]  Most hospitals have internal complaint procedures, and many have created Patient Advocacy Offices whose functions are to assist patients or residents. 

These procedures can offer low-cost, non-adversarial and accessible means of raising and resolving issues. However, they are generally not independent processes, so that the individual who is raising issues may have concerns about bias or reprisal. Depending on the level of formality of the institutional procedure, there may also be concerns about transparency and accountability.      

 

Sectoral Complaints Mechanisms

Some sectors have complaint mechanisms that can be used to address concerns related to decisions regarding legal capacity and decision-making. For example, the Ombudsman for Banking Services and Investments (OBSI) provides an independent service for resolving disputes related to participating banking services and investments, which is free of charge to consumers. Positioned as an alternative to the legal system, OBSI will receive complaints where internal dispute resolution mechanisms have not proved successful. OBSI will accept complaints within 180 days of the final response to an internal process, or after the firm has had at least 90 days to respond through its internal processes. The service is confidential, and the approach informal. OBSI cannot issue binding orders, but its recommendations for resolving disputes are generally respected. Where either party decides not to accept a recommendation, the complainant may still have recourse to legal action.[749] In this role, OBSI addresses disputes related to capacity, substitute decision-making and abuse – for example, situations where a bank blocks a transaction by an SDM due to concerns about abuse, and a dispute develops.


Complaints to the Colleges

As is described in Part Two, Chapter II, those who formally assess legal capacity, whether through examinations under the Mental Health Act, assessments under the SDA, or evaluations under the HCCA, must be members of specified professions, and therefore fall under the regulatory control of their professional colleges. Complaints about failure to comply with ethical or statutory requirements for capacity assessment may be made to the assessor’s professional college. The Regulated Health Professions Act and the accompanying Health Professions Procedural Code set time frames for addressing complaints, as well as substantive and procedural rights for complainants. In practice, this appears to be a rare occurrence. 

The Advocacy Centre for the Elderly (ACE) has commented with respect to complaints against regulated health professionals that

It is ACE’s experience that the complaints process is lengthy and, if legal counsel is retained, expensive. Some of our clients opt not to make a complaint because it will take too long to address a problem that needs to be addressed immediately.[750]

ACE further raised concerns that Colleges may fail to promote compliance with or enforcement of the existing laws, citing a case in which a College upheld a physician practice of making treatment decisions and having nursing staff inform families of the treatment only after the fact, which ACE argued was blatant disregard for the requirements for consent under the HCCA.[751] 


B.    The Consent and Capacity Board

1.     Introduction to the CCB

The Consent and Capacity Board (CCB) is established under the HCCA as an independent, expert administrative tribunal,[752] with jurisdiction over issues raised by the HCCA, PHIPA, the MHA and determinations of capacity under the SDA. It describes its mission as providing “fair, timely, effective and respectful hearings that balance legal and medical considerations while protecting individual rights and ensuring the safety of the community”,[753] a mandate which emphasizes the multidimensional nature of its role, and the careful balance it must strike between competing principles and policy goals.

In particular, the CCB may hear the following applications:

  • To review a finding of incapacity, whether by a health professional with respect to treatment,[754] an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home,[755] or by a Capacity Assessor with respect to property;[756]
  • To appoint a decision-making representative with respect to decisions to be made under the HCCA;[757]
  • For permission for an SDM to depart from the prior capable wishes of a person who lacks capacity;[758]
  • To determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made;[759]
  • For directions when the appropriate application of the HCCA with respect to a required decision is not clear; and[760]
  • For review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility and admission to a secure unit in a care facility.[761]

In practice, the vast majority of the applications that the CCB addresses are reviews of determinations that a person is incapable with respect to treatment, or findings that an individual should be admitted or remain admitted at a psychiatric facility on an involuntary basis.[762]

The disputes before the CCB are somewhat unusual in that both parties to an application are likely to agree on the ultimate goal, “to see the patient out of hospital and moving forward in his or her life”.[763] Physicians are not advocates for intervention, per se, but rather aim to restore or improve the patient’s, so that their aims are not cleanly opposed to those of patient counsel who are aiming to protect the autonomy and liberty interests of their clients. However, it certainly may be true that the physician and the patient may have quite different understandings of how to achieve a good outcome, and may prefer a very different balance between safety and autonomy.

Members of the CCB may hear applications alone or in panels of three or five. The legislation gives priority to expeditious resolutions: hearings must commence within seven days of an application and decisions rendered within one day of the conclusion of the hearing. Decisions of the CCB may be appealed to the Superior Court of Justice on questions of both fact and law.[764]

The effectiveness of the CCB is supported by the requirements for rights advice under the MHA, and the widespread provision by Legal Aid Ontario (LAO) of counsel without cost for individuals who appear before the CCB. 

The CCB is unique among Canadian jurisdictions, and is a model for dispute resolution that appears to have strong support among stakeholders. In Cuthbertson v Rasouli, the Supreme Court of Canada remarked on the strengths of the CCB as a venue for the resolution of disputes related to treatment and consent, commenting on its “strong track record”, its expertise in balancing the objectives of the HCCA, and its ability to “bring consistency and certainty to the application of the statute”.[765] During the LCO’s preliminary consultations, the LCO stakeholders emphasized the value of the independent, expert, flexible, relatively non-adversarial and expeditious dispute resolution provided by the CCB.

 

2.     Concerns and Critiques

Concerns related to the CCB amount to a desire for adjustments, rather than whole-sale reform. Not surprisingly considering its mandate and the often very different experiences and perspectives of the usual parties to an application, the patient and the physician concerns related to the operation of the CCB vary significantly.

 

Respondent Concerns

Undermining the long-term well-being of patients: In most applications, the respondent will be a physician whose determinations are challenged by a patient. From the perspective of some respondents, the CCB’s strong orientation towards procedural rights detracts from the central goal of caring for and protecting people who cannot do so for themselves. In this view, an excessive preoccupation with rights and process during the hearing process may avert immediate minor infringements of rights but may ultimately lead to more serious and sustained rights infringements down the road.[766] That is, necessary interventions may not take place, with negative long-term consequences for the patient. Psychiatrist Richard O’Reilly argues that, for example, in a situation where an applicant is discharged following a CCB decision to rescind his involuntary status (and therefore his compulsory admission to a psychiatric facility) based on a procedural defect, the applicant regains his liberty at that time but the risk to his liberty remains: if the applicant harms someone as a function of his illness, a subsequent criminal conviction or a Not Criminally Responsible (NCR) finding will infringe that liberty interest all the same.[767]

Resource implications for over-burdened systems: Respondents also raise concerns that the CCB’s procedural focus drains resources from an already overburdened system, leading to significant costs in terms of both financial and human resources”.[768] Although respondents are more likely to be self-represented at a hearing, when they do obtain counsel that cost comes at the expense of limited clinical care dollars.[769] As well, time spent by healthcare professionals on CCB processes is time taken away from patient-focussed activities.

Anti-therapeutic effects: There are also criticisms that CCB hearings lead to “anti-therapeutic results”. As noted above, it is argued that time required for CCB processes may affect the time available for clinical activities, as well as delaying needed treatment.[770] Further, hearing processes may in themselves create strain for the parties.[771] It should be noted, however, that the anti-therapeutic effects of legal proceedings are disputed: in fact, some argue that access to due process for patients can actually support therapeutic outcomes by increasing the accountability for the treatment team,[772] increasing compliance on the part of patients with the ultimate decision,[773] and assisting applicants in understanding what is happening to them and why.[774]

Appeals and “warehousing”: A widely raised concern that exemplifies many of the above themes, relates to processes for appeals from CCB decisions. While Legal Aid counsel are commonly provided for applications to the CCB, they are much less commonly provided for appeals to the Superior Court of Justice. Following a negative decision for an applicant to the CCB, counsel may assist the applicant to file a notice of appeal; however, without counsel to move the appeal forward, the matter may linger. This is a particular concern for treatment decisions for persons who are involuntarily admitted to a psychiatric facility. While the matter is pending, which may in some cases be a period of some months, the individual is neither at liberty nor being treated: the psychiatric facility is simply “holding” the person pending resolution, an unsatisfactory situation from all perspectives.

 

  • QUESTION FOR CONSIDERATION: Are there practical reforms to law, policy or practice that would promote more timely resolution of appeals from decisions of the Consent and Capacity Board?

 

Applicant Concerns

Insufficient attention to procedural protections: Contrary to the arguments made from the respondent perspective, applicants and their advocates often perceive the CCB as being insufficiently attentive to due process and fundamental rights. Lora Patton has raised concerns about routine disregard for procedural requirements and a lack of remedies for violations.[775] A stakeholder survey by current CCB Chair Justice Ormston’s found that counsel for applicants felt that CCB members often failed to understand the enabling legislation or the role that counsel plays in advancing and protecting the rights of applicants.[776]

Bias in favour of medical expertise: Connected to the above is a concern that in practice, the CCB is excessively deferential to medical expertise, so that the rights underlying the statute are in practice insufficiently realized. Professor Aaron Dhir raises concerns that adjudicators, clinicians and even patient’s counsel may fall into the trap of conflating the presence of mental disability with lack of capacity, so that the tribunal hearing in regards to capacity may become a “mere ceremonial act, devoid of real meaning”, and urges patient counsel to develop expertise in pharmacology and psychiatric diagnostics so as to be able to challenge these assumptions and educate tribunal members.[777]

Disempowering processes: Applicants may find the CCB process disempowering, with its implicit acceptance of a medicalized approach that positions the issues as problems to be both defined and resolved by “expert[s]”, an approach that strips applicants of the ability to define their own experience.[778] A related concern is the lack of a role for consumers as members of the CCB.[779] The results of a study into the experience of ethno-racial consumers showed that applicants felt that the Board was inaccessible, and failed to recognize their distinct (cultural) experiences.[780] Justice Ormston’s report also noted the view that Board members “were insensitive to the patients’ needs.”[781]

 

3.     Options for Reform

Suggestions for reforming the CCB’s processes often focus on means of improving their responsiveness to the particular context of these decisions. This reflects the comment of the Victorian Law Reform Commission, reproduced earlier in this Chapter, that the nature of these issues are distinctive, that they are not necessarily well suited to traditional adversarial approaches, and that decision-making bodies should have latitude to adopt flexible and innovative approaches to dispute resolution. Two such potential approaches are considered below.

Increased access to mediation: In recent years, many administrative tribunals have incorporated pre-hearing mediation into their processes in an effort to manage caseloads and promote responsive resolutions. Mediation may, of course, take on many different forms.

Greater use of mediation by the CCB could recognize both greater self-determination by applicants, and the on-going nature of the relationships between the parties in most applications.  However, mediation processes may raise concerns because the patient is inherently in a vulnerable position: there is a clear imbalance of power between the parties, especially since the physician is in a position of authority over the patient. As a result, there is a risk that mediation may tilt the process towards excessive intervention. Much of the usefulness of mediation in this context would depend on high levels of specialized knowledge and skill among the mediators. Further, as the issue is one of fundamental rights, it may clearly be argued that it is not amenable to mediation: rights are not negotiable. It is notable that the Canadian Centre for Elder Law (CCEL) reports that in its consultation with experts and stakeholders it found a universal rejection on the question of mediating capacity.[782]

Further, one of the hallmarks of the CCB’s process is its focus on timely, efficient resolution of disputes, an important attribute in a context where decisions may be urgent and fundamental liberties at stake. The current statutory time limitations inherently constrain opportunities for pre-hearing mediation.


  • QUESTION FOR CONSIDERATION: Are there effective and practical means of further incorporating alternative dispute resolution mechanisms into the processes of the Consent and Capacity Board that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?

 

Active adjudication: Active adjudication has been characterized as a “mid-point between adversarial and inquisitorial models of legal process, and one focused on the policy context rather than the judicial model of the neutral arbiter or inquest model of the judge-led inquiry”.[783] It generally involves a more hands-on and flexible approach by the adjudicator, as opposed to the traditional adversarial model. The reformed Ontario Human Rights Tribunal provides a notable example of the use of active adjudication in a rights-based context.[784] The greater control over proceedings awarded to the adjudicator through this approach may assist in focussing the issues, evening the playing field between unequally matched adversaries, and encouraging a truth-seeking process rather than a choice between warring positions.[785] There are concerns that active adjudication, if poorly implemented, may undermine the principles of natural justice or lead to concerns of bias; for successful use of active adjudication, it is necessary to have decision-makers who are skilled, expert and able to discern where such an approach is appropriate.

 

  • QUESTION FOR CONSIDERATION: Are there effective and practical means of amending the hearing processes of the Consent and Capacity Board, such as for example incorporating active adjudication, that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?

 

C.    The Superior Court of Justice

1.     Jurisdiction of the Court

Ontario’s Superior Court of Justice has jurisdiction over a number of issues related to legal capacity, decision-making and guardianship.

As noted above, the Court hears appeals of decisions made by the CCB. Part Three, Chapter III of this Paper detailed the role of the Court in the appointment, variation and termination of guardianships, including directly through the court-appointed guardianship process (either through hearing or the summary disposition process), and by hearing applications related to a refusal by the PGT to issue a replacement certificate for a statutory guardianship. As was noted above, decisions about who should or should not act as guardian to a person determined to legal capacity may be the venue for high-conflict family disputes.

The Court also has an important role in providing oversight of the activities of SDMs and resolving questions of interpretation. Notably, the Court may hear applications for the passing of all or part of the accounts of either a guardian or attorney for property. The Court also has broad powers to “give directions on any question arising in connection with the guardianship or power of attorney” [italics added] for either property or personal care.[786]

Significantly, the Court has broad remedial powers when addressing applications for directions or for the passing of accounts. Upon an application for directions, the Court may “give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with this Act”.[787] Upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian, or terminate the guardianship.[788]

 

2.     Concerns and Critiques

During the LCO’s preliminary interviews, a number of concerns were raised regarding current dispute resolution mechanisms under the SDA.

Warring families:  As described earlier in this Chapter, in some cases, proceedings related to powers of attorney or guardianship become venues for (or have their sources in) bitter personal disputes that have less to do with the application of the law or the well-being of the individual who is supposedly at the centre, than with longstanding family divisions. These types of cases raise difficulties similar to those at the heart of some family law disputes. A court room may not be the best place to address tangled family dynamics. Exacerbating the problem is that such litigation may be funded, not by the feuding parties, but from the assets of the “incapable” individual, and may have the end result of undermining or ending relationships that are of significant importance to that individual.

Adversarialism: Related to the above point, where individuals who are or alleged to be legally incapable wish to raise concerns related to the need for guardianship or misuse of funds, for example, the adversarial nature of the process may make that an unappealing option, because they may be proceeding against family members or other persons with whom they have a personal relationship, or on whom they have some dependency for care or support.

There are clear barriers to pursuing litigation to resolve conflicts with a statutory guardian, such as the cost and complexity associated with the legal process. When the guardian is also a family member there are further concerns such as the impact litigation may have on family relationships. This is especially worrisome when the ‘incapable’ person may depend upon the support of the family member guardian…. [L]itigation or termination of the guardianship may be an extreme and inappropriate measure to deal with problems that may be resolved through mechanisms that may allow the guardianship to remain intact.[789]

Cost:  The cost of legal advice and representation for an application to court can be beyond the reach of many families. As one consultee remarked unhappily, “Every door leads to a lawyer’s office”. Practically speaking, redress is unavailable because it is beyond the individual’s resources. This practical inaccessibility of redress was a dominating theme in discussions of abuse and misuse of powers of attorney and guardianship. As ARCH Disability Law Centre has observed, this issue is exacerbated because the SDM has easier access to the funds of the individual than does the individual him or herself. ARCH provided an example from its own experiences serving such clients.

[T]he SDA permits guardians to use the ‘incapable’ person’s funds to pay for legal counsel to challenge the ‘incapable’ person’s attempts to assert his/her autonomy. This is exactly what happened in Hazel’s case: her guardian used Hazel’s money to pay his own legal counsel, while at the same time refusing her access to her own funds, which she needed in order to defend herself. The guardian’s access to Hazel’s funds was automatic, while her ability to recoup costs if he ‘overspent’ would be based on her being able to convince a court to issue a costs award against the guardian. This latter process would impose further costs upon Hazel. Even if she was successful in obtaining an order from the court, there is no guarantee that her guardian would have had the resources to honour the order.[790]

Complexity:  The processes for seeking redress under the SDA are legally complex and are intimidating for individuals, particularly since there are no formal mechanisms available to provide information or supports. There are no parallels under the SDA to the provisions for rights advice or rights information under the HCCA. While guardians and persons acting under a power of attorney are responsible for providing information about their roles and responsibilities to the individual, there is no mechanism for ensuring that they do so, and where the concerns are related to the conduct of the SDM, that substitute is hardly likely to be a reliable source of information. ARCH Disability Law Centre sums up its review of Ontario’s mechanisms for right enforcement for persons with disabilities under guardianship as follows:

In many cases, the SDA does technically contain mechanisms for monitoring and redress, but these mechanisms are practically ineffective because they are not accessible to many ‘incapable’ persons. For example, the SDA provides for several court-based processes to enable guardians to seek directions or allow ‘incapable’ persons to challenge the appointment or continued role of a guardian. Such processes are inaccessible due to the costs required to initiate litigation and retain counsel, the fact that they are time consuming, legally complex, and rely on the initiative of the ‘incapable’ person. No support is available to assist ‘incapable’ persons to access legal processes.[791]

It was pointed out to the LCO that many of these problems can be traced to the repeal of the Advocacy Act and the complementary provisions of the SDA, which would have provided individuals with rights advice at a number of key points, including appointments of statutory guardians, applications for court-appointed guardianships, court orders for assessments of capacity, and appointments of the PGT as a temporary guardian following an “serious adverse effects” investigation. The provision of advocacy services at these points would have ensured informational and navigational supports at those points where significant rights were at issue. Issues related to advocacy and similar supports are dealt with more thoroughly in the following Chapter, but must be kept in mind as part of the context of law reform in this area.

 

3.     Options for Reform

Based on the above, it appears that reform to the dispute resolution processes under the SDA needs to focus on increasing accessibility, broadly understood, as well as the ability to effectively address the nature of the family dynamics at play in this area of the law and to bring a holistic approach to the issues at stake. A review of other jurisdictions indicates two main approaches to such reform: adding services and supports to existing court-based processes, or moving some or all issues to an administrative tribunal system. Within either approach, there are multiple design options. The following Chapter explores advocacy and other types of supports for persons attempting to access the law, while Chapter IV of this Part explores issues related to access to information: any recommendations for reform to dispute resolution and rights enforcement processes must be considered in the light of those materials.

 

Creating Additional Supports or Services for Court Processes

Ontario has created a number of specialized courts that are able to provide expert, targeted and holistic services, to better address their particular context. The Unified Family Courts and the Mental Health Court are two well-regarded examples of such an approach to justice. The Mental Health Court was formed in 1998, in response to the strains placed on the Ontario Court of Justice by the increasing numbers of mentally disordered accused at Toronto’s Old City Hall location. Toronto’s Mental Health Court provides diversion services, accommodates the needs of mentally ill accused, expeditiously deals with issues of “fitness to stand trial” and attempts to “slow down the ‘revolving door’”. It provides expert and holistic services: the Crown Attorneys are dedicated, permanent staff, there are nine Mental Health Workers attached to the Court, a psychiatrist from the Centre for Addiction and Mental Health attends daily to perform “stand down assessments”, and court clerks have specialized knowledge of the system.[792]

The United Kingdom’s Court of Protection (CoP) provides an example of such a specialized court in the context of legal capacity decision-making law. It is a court that has a specific mandate to address this area of the law, and that has a broader range of tools at its disposal for addressing the issues. The CoP has broad jurisdiction, which includes

  • making determinations of capacity;
  • making declarations, decisions or orders on financial or welfare matters affecting persons who have been found to lack capacity;
  • appointing and removing deputies to make ongoing decisions for persons who have been found to lack capacity;
  • determining the validity of powers of attorney;
  • considering objections to the registration of a power of attorney.[793]

The volume of applications dealt with by the COP is very large. In 2010, the COP received over 18,000 applications related to property and financial affairs, the vast majority of which were related to applications to appoint a deputy.[794]

The processes and powers of the CoP are specialized in a number of respects:

  • Tailored rules of procedure: The COP has the power to make its own Rules dealing with the manner and form of proceedings, notice, evidence, the enforcement of orders, and other matters.[795]
  • Codes of practice: for the guidance of those who act in connection with the MCA, comprehensive, plain language and authoritative “Codes of Practice” must be developed and revised as required.[796]
  • Assistance to applicants: The application process is fairly complex, with a series of deadlines and notice requirements. For example, the “application pack” for an application related to financial and property matters that does not require permission from the CoP to proceed, includes ten different documents, including both forms and directions. CoP staff will provide general information about the CoP’s processes, as well as basic guidance in relation to the application and forms.
  • The Visitor system: The CoP has the power to request a report from a “Visitor”. These visitors, some of whom are designated “special visitors” with expertise in capacity-related disabilities, may be ordered by the CoP to visit deputies, attorneys or the individuals for whom these persons are acting and to prepare reports for the COP or the Public Guardian on issues as directed.[797]
  • Requests for reports: The COP may also request a report from the Public Guardian, a local authority, or a National Health Service body. The report may be made in writing or orally, as directed.[798]
  • Appointment of public counsel: The COP may appoint a “suitable person” or the Official Solicitor (with consent) to act in the name of, represent or act on behalf of the individual to whom proceedings relate.[799]

It should be noted that the legal capacity and decision-making system in which the CoP functions differs in many significant respects from Ontario’s, including the presence of a comprehensive public registry system for both deputies and attorneys, the institution of “Mental Capacity Advocates” for particularly vulnerable individuals (as is described in Part Four, Chapter III of this Paper) and a Public Guardian with broad responsibilities to monitor SDMs, including through registries, receipt of reports, Visitor programs and a complaint mechanism. The broad jurisdiction and heavy caseload of the CoP makes it possible for it to operate as a specialized court, and to develop expertise and specialized services accordingly.

ARCH Disability Law Centre, in its review of Ontario’s current system for protecting the rights of persons with disabilities who are subject to guardianship, pursues this approach to reform, recommending that current dispute resolution systems under the SDA be supplemented by

  • a comprehensive mandatory system of independent rights advice for those falling under guardianship law, potentially by a “Visitor” system as is described in Part Four, Chapter II;
  • provision of advocacy supports to persons wishing to challenge a finding of incapacity under the SDA;
  • measures to limit the imposition of guardianship and require its regular review, such as periodic capacity assessments and time-limited decision-making arrangements;
  • mandatory education and training programs for guardians;
  • regular mandatory reporting requirements for guardians; and
  • the establishment of a Monitoring and Advocacy Office that would, among other functions, receive complaints and informally resolve them where possible.[800]

Specific recommendations by ARCH are reviewed in more detail at the relevant points in this Paper.

 

  • QUESTION FOR CONSIDERATION: Are there additional powers for the court or specialized supports or services for persons attempting to access their rights or resolve disputes under the Substitute Decisions Act that would improve the accessibility or effectiveness of current dispute resolution processes in this area? If so, what reforms would be most appropriate and how could they best be implemented?

 

Tribunal Systems

In its Report prior to the reforms that lead to the Mental Capacity Act 2005 (MCA), the Law Commission of England and Wales considered the creation of an administrative tribunal to deal with rights enforcement and dispute resolution in this area of the law, but ultimately recommended a specialized court because of the seriousness and complexity of the issues that would form the majority of the workload for the responsible judicial forum.

Some Canadian commentators have, however, suggested that legal capacity and guardianship issues currently falling under the jurisdiction of the Superior Court of Justice might be effectively addressed through an administrative tribunal, pointing to the success of the CCB within its mandate. For example, in its commissioned research paper on supported decision-making, the Canadian Centre for Elder Law commented that,

Administrative tribunals were considered more accessible, less intimidating, and more expert in their deliberations around issues such as decision-making, least intrusive approaches and community linkages. The Ontario Consent and Capacity Board seems well-placed to oversee supported decision-making challenges, with an appeal to Superior Court. [italics in the original][801]

Similarly, Michael Bach and Lana Kerzner, in their work on supported decision-making, have recommended dispute resolution and rights enforcement through an administrative tribunal with exclusive focus on decision-making.[802]

During the 1980s, as part of a wave of guardianship reform, a number of Australian states innovated the use of administrative tribunals to address matters related to legal capacity, decision-making and guardianship. The tribunal model is now firmly entrenched in those jurisdictions. A comprehensive review of the use of tribunals in this context, conducted by Carney and Tait, found that they had been notably successful along a number of benchmarks. Using a mix of cross-jurisdictional file reviews, case studies, observations of hearings, and in-depth interviews, the authors concluded that:

  • Courts appeared to be more likely than tribunals to defer to professional advice and were less likely to use hearings to test out evidence or seek out new information, and perhaps consequently to appoint SDMs with extensive powers;[803]
  • Tribunals appeared to be more likely focus on institutional practices and to act in a proactive and systemic way, as well as to attempt to divert cases; [804]  and
  • Tribunals appeared to be more likely to attempt to include the person for whom an application was made as a participant in the process. [805]

Carney and Tait concluded that,

Tribunals tend to pay more attention to social context and functioning, and are less likely to appoint proxies. This may have something to do with the tribunal form or the more inquisitorial style of hearing. But it also reflects a different narrative, a different vision of what the jurisdiction is about. They need social information to identify socio-legal crises. They may be reluctant to appoint substitutes, but they are more interventionist than courts in addressing systemic issues. The tribunals also pay more attention to incorporating the person for whom the application was made into an alliance.[806]

As one example of such a tribunal, the Australian state of Victoria has created a “Super-Tribunal”, the Victorian Civil and Administrative Tribunal (VCAT). Its jurisdiction is broad, including matters related to legal capacity and guardianship as well as human rights, consumer matters, residential and retail tenancies, freedom of information issues, and many other matters. Its purpose is to be “an innovative, flexible and accountable organisation which is accessible and delivers a fair and efficient dispute resolution service”.[807]

VCAT members include the President, who is a judge of Victoria’s Supreme Court; Vice-Presidents, who must be judges of the County Court, Deputy Presidents (who are full-time appointments); Senior Members and ordinary members (who may be full-time, part-time or sessional appointments. All must have been admitted to legal practice.[808] VCAT has three divisions or “lists”: civil, administrative, and human rights, the latter being the locus of capacity and guardianship decisions. VCAT has locations across the state, and in guardianship issues, may conduct hearings at hospital bedsides or in homes to avoid the need to transport ill or frail individuals to hearing centres.

VCAT is a very busy Tribunal, dealing with over 90,000 applications in 2012-2013. The Guardianship List is one of the busiest, with almost 11,000 applications commenced during that time.[809] VCAT hears applications to appoint or to reassess guardians for personal care or administrators for financial matters; to revoke, vary or suspend a power of attorney for property; to revoke or suspend powers of attorney for medical treatment; or to consent to special procedures such as termination of a pregnancy. Because the legislation mandates regular reassessments of the appointments of guardians and administrators, these make up a considerable portion of VCAT’s work in this area (approximately two-thirds).[810]

The Victorian Law Commission explains that,

Because VCAT is a tribunal rather [than] a court, its members do not have the same tenure as judges and magistrates, and its procedures are designed to be less formal than those followed in courts. For example, VCAT is not bound by the rules of evidence. The VCAT Act directs that hearings must be conducted with ‘as little formality and technicality’ and ‘as much speed’ as the law and a proper consideration of the matter allows. However, VCAT is bound by the rules of natural justice. This means that the parties must be given a fair hearing and have their case determined by an impartial decision maker.[811]

The Commission further notes that VCAT employs an “inquisitorial” model.[812] Interestingly, currently none of the parties in Guardianship List matters, including the proposed represented person, has a right to legal representation during the hearing; rather the consent of VCAT or the agreement of all the parties is required before a professional advocate can represent a person at a hearing.[813] This restriction should be understood in light of the activities of Victoria’s “Public Advocate”, which provides no-cost individual and systemic advocacy related to capacity and guardianship issues, as is described in the following Chapter. The Victorian Law Reform Commission has recommended that the legislation be amended to provide all parties with a right to legal representation or to representation by another professional advocate with leave of VCAT.

Matters are dealt with expeditiously: the legislation requires VCAT to list guardianship and administration matters for hearing within 30 days of receipt of the application, and the median resolution time for applications in 2012-2013 was 4 weeks. VCAT includes mediation and compulsory conferences as part of its processes. In its Annual Report, VCAT states that it refers

matters to mediation or compulsory conference at an early stage, achieving significant success in terms of party satisfaction and reduced hearing times. Although presiding Members must make final orders, in appropriate cases ADR offers families the best opportunity to resolve their issues amicably. In a significant number of cases, following ADR, parties have withdrawn their applications without VCAT needing to make orders appointing administrators or guardians, or orders about enduring powers of attorney.[814]

VCAT hearing centres provide a range of services to applicants, including a duty lawyer to answer questions and provide assistance to unrepresented applicants, and a volunteer Court Network service that provides information and referrals.

VCAT also has some functions that go beyond dispute resolution. It receives annual accounts from private administrators, and provides public education sessions around the state for newly appointed guardians and administrators.[815] The role and operation of Victoria’s Public Advocate is described in Part Five: it suffices to say here that the operation of VCAT is best understood in the context of the existence of a separate, independent body performing both individual and systemic advocacy for individuals affected by guardianship laws. In particular, when VCAT receives an application, it may refer the matter to a Public Advocate Duty Officer, who may contact the applicant or proposed represented person to explain the process or make enquiries, may prepare a report on the views of the proposed represented person, or may conduct a formal investigation.[816] The Victorian Law Reform Commission noted the importance of a thorough pre-hearing process in these cases, and recommended an expanded role for VCAT in this area, so that it can effectively undertake

  • a thorough examination of the application to ensure that it is supported by material the tribunal needs to decide the matter;
  • an analysis of the application to determine whether it should proceed directly to hearing or be referred to an alternative process; and
  • liaison with the parties, particularly the applicant and the proposed represented person, to ensure that they are properly prepared for the hearing or for any alternative processes that are recommended.[817]

Some aspects of VCAT, such as the limited role currently allotted to legal counsel, would make an uneasy fit within the Ontario context; however, VCAT provides an example of a flexible, specialized administrative tribunal that places an emphasis on accessibility and efficiency. This approach is supported through the strong advocacy and systemic functions played by the Public Advocate.

 

  • QUESTION FOR CONSIDERATION: For dispute resolution and rights enforcement under the Substitute Decisions Act, are there lessons to be learned from tribunal systems in other jurisdictions?

 

D.    Questions for Consideration

  1. What goals should be the priorities in considering reforms to Ontario’s dispute resolution and rights enforcement mechanisms for this area of the law?
  2. Are there practical reforms to law, policy or practice that would promote more timely resolution of appeals from decisions of the Consent and Capacity Board?
  3. Are there practical and effective means of further incorporating alternative dispute resolution mechanisms into the processes of the Consent and Capacity Board that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?
  4. Are there practical and effective means of amending the hearing processes of the Consent and Capacity Board, such as for example incorporating active adjudication, that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?
  5. Are there additional powers for the court or specialized supports or services for persons attempting to access their rights or resolve disputes under the Substitute Decisions Act that would improve the accessibility or effectiveness of current dispute resolution processes in this area? If so, what reforms would be most appropriate and how could they best be implemented?
  6. For dispute resolution and rights enforcement under the Substitute Decisions Act, are there lessons to be learned from tribunal systems in other jurisdictions?

 

 

 

 

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