III. Supports to Accessing the Law: Navigation, Problem-Solving and Voice

////III. Supports to Accessing the Law: Navigation, Problem-Solving and Voice
III. Supports to Accessing the Law: Navigation, Problem-Solving and Voice2017-03-03T21:48:26+00:00

A.    Introduction

As the LCO highlighted in the Frameworks, persons with disabilities and older persons, as well as those who represent, work with or advocate for these individuals, have frequently noted the challenges that they face in receiving services and securing their rights, even when dealing with legislation or services that are intended to benefit them. These challenges have a variety of sources, including

  • negative or stereotypical attitudes on the part of service providers or embedded in service systems;
  • the inherent difficulties in navigating large and complex bureaucracies, especially for individuals who are in any way vulnerable or marginalized;
  • power imbalances between those who provide services and those who receive them, again especially for vulnerable individuals;
  • challenges arising from the intersection of other types of diversities, such as language, culture, racialization, gender, or many others with their older age or disability; and
  • the inevitably occurring imperatives within large institutions, including resource constraints and conflicting institutional goals.

All of these barriers and challenges must be understood in the broader context that older adults and persons with disabilities may experience, in which they are more likely to be live in low-income and to experience social isolation and lack of opportunities for participation, and in which they may experience persistent silencing or stigmatization.

Consistent with this broader picture, during the LCO’s preliminary consultations, participants raised a number of linked concerns about the operation of Ontario’s capacity, decision-making and guardianship laws: the vulnerability of individuals falling within the system to violations of their statutory rights, sometimes with profound consequences; the challenges for individuals of navigating effectively through a very complex system; and the perceived shortfalls in dispute resolution mechanisms, enforcement and remedies. They pointed to a number of underlying causes for these problems, including lack of meaningful access to information for those falling under the laws, significant power imbalances between large institutional service providers and individuals who are often marginalized or disempowered, and a lack of effective accountability mechanisms for institutions involved in implementing the law. These concerns have been highlighted throughout this Paper.

As has been emphasized throughout this Paper, concerns about access to the law are all the more pressing in this area because of the profound effect of legal capacity, decision-making and guardianship laws on many aspects of the lives of those they touch.

As a result, one of the key priorities for reform identified during the LCO`s preliminary consultations was the provision of supports to enable individuals to more effectively access their rights under the law. Particular emphasis was placed on developing systems, policies or practices that would ensure that:

  • individuals whose rights were potentially affected by these laws had meaningful access to information about the law, its potential impact on them, and their options for pursuing their rights;
  • both individuals directly affected and those who provide them with supports receive assistance in navigating the often complex systems for capacity assessment, entering or exiting guardianship, or challenging the activities decisions or activities of SDMs;
  • individuals with disabilities that affect their abilities to identify or articulate their needs and wishes receive supports and accommodations to assist them in this respect; and
  • where individuals must deal with lengthy, procedurally demanding or multi-layered legal structures in order to resolve disputes or enforce their rights, that they receive the assistance necessary to ensure that they can meaningfully advocate for their rights.

These issues are the focus of this Chapter.

This Chapter focuses on formal supports. It is important to acknowledge the very extensive and vital informal supports that are provided by family and friends. As the O’Sullivan Review emphasized,

There can be many benefits to this type of [informal] advocacy relationship. As the advocates in this case are likely to know the vulnerable adult very well, including his or her personal history, special needs and circumstances, they are particularly able to understand the vulnerable adult’s needs and desires. Further, the relationship between these individuals is likely to be ongoing, which lends stability to the advocacy relationship. In addition, it is difficult to replace the bonds of love and trust that normally exist in family relationships and friendships which foster well intentioned and zealous advocacy.[818]

However, the challenges that have been identified with access to the law in this area highlight the inherent limitations of placing so much responsibility for supports and advocacy on family and friends. It has been pointed out that there may be tensions between the role of informal advocate and the non-advocacy roles that friends and family members play, including informal caregiving.[819] Further, as was discussed in Part Three, Chapter II, the responsibilities that are already placed on family and friends are enormous, and very challenging in the context of limited existing resources. Many family and friends who have struggled to advocate for and support their loved ones would benefit enormously from assistance in carrying out this role.                           

Issues related to supports are clearly closely connected to those addressed in the chapters on capacity assessment, appointment processes, dispute resolution, and information and education. Certainly the simpler and more transparent are the systems for rights enforcement, appointments and assessments, the more likely that those affected will be able to access them without extensive supports. More comprehensive systems for proactive monitoring and oversight of SDMs or regular reassessment of capacity will reduce the need for individuals to independently navigate dispute resolution and rights enforcement systems. One must view the system as a whole. Ontario’s current system is one of very considerable complexity: it has many procedural safeguards and mechanisms for challenging decisions, but has few proactive or supervisory mechanisms, and levels of support and advocacy available to individuals vary considerably across the system.

 

  • QUESTION FOR CONSIDERATION: What types of supports are most important for assisting persons falling within this area of the law to understand and assert their rights? Should the focus of supports be on provision of accessible, timely and appropriate information; assistance in navigating complex systems; supporting affected individuals to articulate their values and wishes; support to advocate for their rights; or some other needs?


B.    A Little History: Advocacy, Law Reform and the Current Legislative Scheme

As has been noted elsewhere in this Paper, the need for supports to ensure effective access to the law was identified during the development of the current legislative framework, and was initially addressed through the Advocacy Act and accompanying provisions in the Substitute Decisions Act (SDA) and the predecessor statute to the Health Care Consent Act (HCCA). A review of this legislative history illuminates both the current challenges with the legislation, and the difficulties in designing and implementing effective supports in this area.

 

1.     The Fram Report and the O’Sullivan Review

In late 1986, the Attorney General of Ontario announced a Review of Advocacy for Vulnerable Adults, responding to concerns regarding “an unmet need for non-legal advocacy for vulnerable adults living in institutional care settings and the community”. Advocacy has been variously defined, but at its most basic, it is a mechanism for ensuring respect for rights; promoting participation, empowerment and accountability; and facilitating creative and practical problem-solving in laws or systems that address vulnerable and marginalized groups, including persons with disabilities and older adults. As such, it is connected with broader notions of access to justice, and a consideration of the elements of advocacy can make an important contribution to reform of laws, policies and practices affecting these groups.

Father Sean O’Sullivan was asked to report back, within six months, on the best method or methods for delivering advocacy services, including considering ways in which advocacy might be co-ordinated with existing case management and other service delivery systems, as well as existing community legal and volunteer advocates.[820]

Interestingly, the issue of advocacy had initially been referred to the Fram Committee, which was considering reforms to substitute decision-making laws, highlighting the importance of the connection between this area of the law, and advocacy. When that Committee had difficulty reaching consensus over a number of months and it appeared that progress on the original mandate was being delayed, the independent review was struck. Nevertheless, the Fram Committee did important preliminary work in identifying principles and objectives for advocacy, as well as identifying key points where advocacy was required. The Fram Committee identified the role of advocates as explaining the significance of the legal step that was being taken and the legal options available to the individual, and where appropriate putting the individual in touch with legal resources. The Committee recommended the provision of advocates to affected individuals at a number of points in the processes surrounding capacity assessment and substitute decision-making, as follows:

1)     court appointment of guardians or conservators;

2)     termination of conservatorship or guardianship;

3)     order for assessment and enforcement; 

4)     prior to an assessment of capacity for statutory conservatorship or powers of attorney for personal care; 

5)     refusal of substitute decisions about treatment; and

6)     annual visit to all persons under guardianship or a POA for personal care.[821]

The Fram Committee recommended that, given the importance of advocacy to the effective implementation of the SDA, the SDA not come into force until the Advocacy Act had been implemented.

The O’Sullivan Review focussed on social rather than legal advocacy, and on formal rather than informal advocates. It identified four basic principles for advocacy:[822]

1)     It must be client directed: the actions of the advocate must be guided by the instructions of the client and the advocate must serve the client on a voluntary and consensual basis. The advocate should not substitute a “best interests” approach for the instructions of the client.

2)     It should be independent: in order to avoid any potential or perceived conflicts of interest, advocates should be administratively and financially independent of the human service delivery systems that they must advocate within.

3)     It should be accessible: clients must be able to access advocacy both from within institutions and from the community, and advocates must be able to freely communicate with clients without interference from others. Accessibility also includes protections for client confidentiality, and the ability of advocates to access (with client consent) necessary records and individuals.

4)     It should be neither adversarial nor passive: the concept of advocacy has sometimes been resisted as embodying an overly adversarial approach, and as a threat to traditional interpersonal and professional relationships. Appropriate advocacy should not have the effect of polarizing relationships, but nor should it be overly passive and compliant, avoiding sensitive, difficult or unpopular issues. It should be seen as a way to achieve co-operation, with more adversarial approaches available as a last resort.

The Review identified a number of goals for an advocacy system for Ontario. Such a system should provide safeguards against unnecessary guardianship; be independent; encourage self-advocacy (self-determination) where possible; enhance the role of family and friends; educate, delabel and destigmatize; be flexible; be responsive; promote cooperation with Providers and Ministries; be accessible; be reformative (seek improvements in programs); have clout; and be accountable.[823]

The Review considered a number of models of advocacy systems, including a publicly funded, independent “Advocacy Ombudsman”; a volunteer-based citizen advocacy program; development of mechanisms to educate, coordinate and empower those already acting as advocates; and an Advocacy Commission, which would develop standards and procedures, as well as regional offices which would be directed by community-based boards and staffed by advocacy coordinators. The Review ultimately recommended the adoption of this latter “Advocacy Commission” approach. 

 

2.     The Advocacy Act, 1992 and the Advocacy Provisions of the Substitute Decisions Act and Consent to Treatment Act

As is described in Part One of this Paper, in 1992 the legislature of Ontario passed a package of legislation that made sweeping changes to the law relating to legal capacity, decision-making and guardianship. This legislation was the culmination of a lengthy and intensive law reform process that included the O’Sullivan Review, the Fram Report and the Weisstub Enquiry on mental competence. The issue of advocacy was central to the three central statutes, the Advocacy Act, the SDA and the Consent to Treatment Act.

 

The Advocacy Act

While the Advocacy Act was closely linked to the reform of capacity and guardianship laws, it had a much broader purpose, and was intended to have an impact on the lives of many individuals who did not fall within the ambit of legal capacity and guardianship law. The purposes of the Advocacy Act were as follows:

(a)              to contribute to the empowerment of vulnerable persons and to promote respect for their rights, freedoms, autonomy and dignity;

(b)              to provide advocacy services,

               (i)            to help individual vulnerable persons express and act on their wishes, ascertain and exercise their rights, speak on their own behalf, engage in mutual aid and form organizations to advance their interests,

               (ii)           to help individual vulnerable persons who are incapable of instructing an advocate, if there are reasonable grounds to believe that there is a risk of serious harm to the health or safety of those persons, and

               (iii)          to help vulnerable persons to bring about systemic changes at the governmental, legal, social, economic and institutional levels;

(c)           to ensure that community development strategies are applied in the provision of advocacy services;

(d)          to take into account the religion, culture and traditions of vulnerable persons;

(e)           to ensure that aboriginal communities are enabled to provide their own advocacy services whenever possible;

(f)           to acknowledge, encourage and enhance individual, family and community support for the security and well-being of vulnerable persons.[824]

The Act applied to “vulnerable persons” age 16 and older, who were defined as persons who, “because of a moderate to severe mental or physical disability, illness or infirmity, whether temporary or permanent and whether actual or perceived (a) is unable to express or act on his or her wishes or to ascertain or exercise his or her rights, or (b) has difficulty in expressing or acting on his or her wishes or in ascertaining his or her rights”.[825] It also applied for the purposes of the provision of rights advice and other advocacy services under the Mental Health Act, the SDA and the Consent to Treatment Act.[826]

The Act created an Advocacy Commission. The functions of the Advocacy Commission were expansive and included promoting respect for vulnerable persons and their rights; providing both individual and systemic advocacy services, providing rights advice and other advocacy services required under capacity and guardianship laws, providing training for advocates, ensuring that community development strategies were applied to the provision of advocacy services, encouraging and enhancing individual, family and community support for the security and well-being of vulnerable persons, establishing minimum qualifications and standards for advocates, conducting programs of public information and education, and others.[827]

Advocates were not substitute decision-makers, and did not have authority to make decisions in place of or on behalf of a vulnerable person.[828] Advocates were prohibited from doing anything that was inconsistent with the instructions or wishes that the person expressed while capable of instructing the advocate. A person was considered capable of instructing the advocate if the person was able to indicate a desire for advocacy services and the purpose for which he or she desired to receive the services, and was able to express in some manner his or her instructions or wishes. However, the advocate could also act where the vulnerable person was incapable of providing instruction, if there was a risk of serious harm to the health or safety of the vulnerable person; prior to such action, the advocate was required to take all reasonable steps necessary to determine whether the individual was really incapable of instructing the advocate.[829]

Where a vulnerable person was incapable or agreed, an advocate could take instructions from a substitute decision-maker, including a guardian or person acting under power of attorney.[830]

Advocates were provided with rights of entry and access to records, and were bound by duties of confidentiality, with specific requirements for disclosure in limited circumstances.

 

Substitute Decisions Act and Consent to Treatment Act

The recommendations of the Fram Committee with respect to advocacy and substitute decision-making were briefly described above. The legislation as passed in 1992 closely hewed to these recommendations. Under the SDA and Consent to Treatment Act, advocates were given a role at key transition points in the lives of persons affected by the law, where important rights were at stake. At these points, advocates were generally made responsible for

  • notifying the individual of the decision or determination that had been made with respect to her or him;
  • explaining the significance of the decision or determination in a way that took into account the special needs of that person;
  • explaining the rights that the individual had in that circumstance, such as a right to appeal the decision or determination;
  • in some cases, the advocate was required to ascertain the wishes of the individual (e.g., whether he or she wished to challenge the decision or determination) and to convey those wishes to the appropriate body (e.g., the PGT).

Action on these decisions or determinations could not be taken until the advocate had carried out these duties, or had made efforts to do so and had been prevented.

The advocacy envisioned was therefore of a relatively restricted (though important) type: the advocate was not to speak on behalf of the individual, to undertake negotiations or make representations. The core focus of the advocate’s role was to ensure that the individual was aware of his or her situation, understood her or his rights, and had the information necessary to exercise those rights. In this way, the role of the advocate under these statutes was very similar to that of current-day rights advisers.

The situations in which advocates (referred to as “rights advisers” in the context of the Consent to Treatment Act, although they were to be authorized advocates under the Advocacy Act) were required to act included the following:

  • the appointment of a statutory guardian of property following an examination under the Mental Health Act;
  • the appointment of the PGT as a temporary guardian following an investigation into serious adverse effects;
  • applications for validation or registration of powers of attorney for personal care;
  • applications for court-appointed guardianships;
  • court orders for assessment of capacity, including orders for apprehension of the individual to enforce assessments;
  • findings of incapacity with respect to treatment made within a psychiatric facility;
  • findings of incapacity with respect to “controlled acts” in a non-psychiatric facility;
  • applications to the CCB for directions regarding the prior expressed wishes of an individual; and
  • applications to the CCB for permission to depart from the prior expressed wishes of an individual.

 

3.     The Repeal of the Advocacy Act and Amendments to Capacity and Guardianship Laws

The Advocacy Act was repealed in 1996, immediately following upon an election that resulted in a change of government, and prior to any extensive implementation. (Despite passage of the legislation in 1992, it was only proclaimed in spring 1995, a few months prior to the election.) The repeal of the Advocacy Act was accompanied by amendments to the SDA and the Consent to Treatment Act (which was ultimately replaced by the HCCA). All references to “advocates” were removed from the SDA, and the role of rights advisers under the Consent to Treatment Act replaced by much more limited provision for “rights information” in a restricted set of circumstances.

It has been argued that the decisive defeat of this initiative was the result of an attempt to do “too much, too late”.  The Act was the target of a wide range of criticism that focussed, not only on its costliness, but also its perceived intrusion on families and private rights and what was believed to be a potential for undermining existing professional and community groups that worked in the area. It has been commented that the legislation was premised on an understanding that the interests of vulnerable adults were not necessarily identical with those of their families and service providers and that they therefore needed an independent voice; however, the government “did not recognize (at the outset, at least) that its actions were, in effect, setting up families, professionals, housing providers – indeed, all the ‘others’ in the life of a vulnerable person – as potential adversaries”.[831] As a result, while there was widespread support for the concept of advocacy, there was difficulty in garnering wide stakeholder support for this particular legislation, and the process for implementation was delayed to such a late point that there was little chance of developing public support through implementation.

 

  • QUESTION FOR CONSIDERATION: What can be learned from the history of the Advocacy Act to guide reforms to the provision of supports for persons falling within this area of the law?

 

C.    Existing Supports for Accessing Ontario’s Capacity, Decision-making and Guardianship Laws

This section details the formal, professional  mechanisms for supporting access to the law by those directly affected that are currently found within or surrounding Ontario’s legal capacity, decision-making and guardianship laws. It should be noted that this is not a comprehensive description of all the means of support currently accessed by persons directly affected by these laws. As noted above, family and friends often act as informal advocates. Individuals may receive supports through volunteer or other efforts by consumer or advocacy organizations. Some individuals are able to access private legal service providers to act for them. These are all important sources of support for individuals navigating Ontario’s laws related to legal capacity, decision-making and guardianship, and will remain so under any foreseeable circumstances. Rather, this section addresses formal support mechanisms that are specifically targeted to this area of the law.

 

1.     Rights Advisers and the Psychiatric Patient Advocate Office

Rights Advisers

The Mental Health Act creates a class of designated rights advisers, who provide rights advice to individuals in a number of specific circumstances. These rights advisers are found in psychiatric facilities designated under the MHA, and are also designated with respect to the issuance or renewal of community treatment orders outside of psychiatric facilities.[832] The vast majority of rights advisers in Ontario are provided by the Psychiatric Patient Advocate Office (PPAO), which supplies rights advisers to all ten specialty or tertiary care psychiatric facilities and 71 of 74 community or general hospitals with psychiatric units (Schedule 1 hospitals).[833] As well, rights advice is provided to those individuals (and their SDMs if any) who are being considered for the issuance or renewal of a CTO. In addition, the PPAO trains all other rights advisers.[834] In 2011, the PPAO reported providing rights advice to 350 patients in tertiary care facilities who had been certified as incapable of managing property and 322 whose incapacity to manage property had been continued, together making up 9.1 per cent of rights advice visits to tertiary care facilities.[835] They provided rights advice to 646 patients in community hospital psychiatric facilities who had been certified as incapable of managing property and 353 whose incapacity had been continued, making up 4.2 per cent of these visits.[836]

The PPAO writes:

Rights Advice ensures that mental health patients who have had their legal status changed as an involuntary or incapable patient are afforded the same protection under the Canadian Charter of Rights and Freedoms as any other citizen, including the right to life, liberty and security of the person; the right not to be arbitrarily detained or imprisoned; and the right upon detention to be informed of the reasons for detention, to retain legal counsel without delay, and to challenge the reasons for their detention.[837]

The situations under which rights advice is required include when a person is found incapable with respect to the management of property under Part III of the MHA.[838] As described in more detail in Part Three, Chapter II, when a physician issues either a certificate of incapacity or a certificate of continuance under the MHA, she or he must promptly notify both the patient and a rights adviser. The rights adviser must then meet with the patient, unless the patient refuses to do so, and explain the significance of the certificate and the right to have the issue of incapacity to manage property reviewed by the Consent and Capacity Board (CCB). If the patient so requests, the rights adviser must assist the patient in making an application to the CCB and in obtaining legal services. The duty to provide an explanation is met so long as the rights adviser “explains [the] matter to the best of his or her ability and in a manner that addresses the person’s special needs, even if the person does not understand the explanation”.[839]

The role of rights advisers therefore does not include representing or negotiating for the individual. This is at least in part because those accessing rights advice will in most cases have access to legal advocacy either through Legal Aid Ontario funding or the private bar: it is part of the role of the rights adviser to connect individuals to legal services if they so desire.

Rights advisers must not be themselves service providers: they may not be persons involved directly in the clinical care of the person receiving the advice, or a person providing treatment or care and supervision under the community treatment order (CTO).[840] Rights advisers must

  • be knowledgeable about the rights to apply to the CCB under the MHA, the HCCA and the Personal Health Information Protection Act;
  • be knowledgeable about the CCB’s workings, its application procedures and how to contact it;
  • be knowledgeable about how to obtain legal services;
  • have the necessary communication skills to effectively perform the functions of a rights adviser; and
  • have successfully completed an approved training course for rights advisers and have received certification for such.[841]

While at the outset, there were concerns that the rights adviser system would be overly adversarial or would interfere with the ability of health care professionals to carry out their responsibilities, rights advisers are now a well-established and well-regarded element of Ontario’s capacity and guardianship system.

Critiques of rights advice generally focus two issues. The first is the limited role that rights advisers have, restricted as it is to certain decisions under the MHA. Rights information requirements under the SDA and HCCA are frequently criticized as insufficiently effective. Under the HCCA, instead of rights advice upon a finding of lack of legal apacity, rights information is provided by the professional assessing capacity. ACE has commented that,

Rights information does not require any specific paperwork to be completed. Unfortunately, many health care practitioners fail to satisfy the minimal requirement of providing rights information to individuals meaning they are unaware of their statutory rights and the procedures necessary to exercise these rights.
****
There are also problems with the policies respecting rights information of the various health colleges …. By requiring health practitioners to follow the policies of their Colleges, they could be subject to discipline proceedings if they failed to provide rights information. However, the policies of the Colleges did not necessarily ensure that the patient would have the information for the purpose of due process. As well, it is questioned whether the Colleges enforce this requirement for rights information and discipline practitioners who fail to comply.[842]<

As well, under the SDA it is the guardian or attorney acting under a POA whose task it is to explain roles and responsibilities of the SDM to the person under substitute decision-making: not only does this potentially raise problems of conflicts of interest, but since many if not most attorneys and guardians only imperfectly understand the law, it is not likely to be an effective means of providing information.[843] It has been suggested that at least some of the situations where “rights information” is currently provided would benefit from the provision of something that is similar to rights advice. 

ARCH Disability Law Centre supports an expansion of rights advice services to all those who are determined to be incapable, potentially through a “Visitor” system in which professionals or trained volunteers visit all persons deemed to lack legal capacity, to provide rights advice and answer any questions the individual may have about the decision-making arrangement.[844] ARCH observes that

Providing rights advice to ‘incapable’ persons is one practical way in which to promote individual autonomy and independence, and full and effective participation. The first principle requires that people with disabilities have access to information needed to understand and enforce their rights. The provision of rights advice will contribute to ensuring that ‘incapable’ persons are aware that they can participate in decisions that affect them or challenge the actions of their decision-makers. Knowledge of their rights and mechanisms to assert those rights would provide some degree of empowerment to ‘incapable’ persons. The provision of rights advice to every person who is subject to some form of decision-making is a basic step towards protecting and promoting the rights of ‘incapable’ persons.[845]

Other criticisms related to implementation issues, most importantly challenges in ensuring that the role of rights advisers is fully respected so that they are able to effectively carry out their mandate. It has been suggested that more effective mechanisms are needed to ensure that health professionals understand, respect and support the statutory requirements for rights advice.

 

The Psychiatric Patient Advocate Office

As described above, the PPAO plays a vital role in providing sustained, independent and consistent individual advocacy through its rights advice function. Importantly, this individually focussed function is combined with a systemic role. The mandate of the PPAO sets out the following functions:

  • To advance the legal and civil rights of patients by means of both individual case work and systemic advocacy;
  • To inform the patient, family, hospital staff, and the community about patients’ legal and civil rights;
  • To assist, facilitate (self-advocacy), and help resolve the complaints made by psychiatric patients by providing an avenue for resolution through negotiation according to the patient’s instructions;
  • To investigate alleged incidents and to assess institutional and systemic responses to these instances;
  • To refer patients, when necessary, to outside community advocacy resources such as community organizations, lawyers, or physicians who may offer a second opinion.

The PPAO provides plain language materials related to patient rights and conducts public education activities. It has been involved in a wide range of law reform initiatives related to its mandate, as well as media involvement to raise public awareness about patient rights’ issues, and sharing its expertise with other institutions in a number of jurisdictions. The PPAO has had some significant impact through its systemic advocacy, including campaigns to increase the Personal Needs Allowance, ensure access to voting rights, develop patient councils in provincial psychiatric hospitals and address police disclosure of non-criminal, mental health related contacts as part of police records checks.[846]

 

2.     Section 3 Counsel

Under the SDA (and therefore, for the purposes of capacity to manage property or to make decisions about personal care), where the legal capacity of an individual is in issue in a proceeding under the SDA and that person does not have legal representation, the court may arrange for legal representation to be provided, and the person will be deemed to have capacity to retain and instruct counsel for that purpose.

In some of these cases, the person may be eligible for legal aid, and a certificate may be issued. If not, the person is responsible for their own legal fees. Either the person or his or her guardian of property orpower of attorney for property may seek review of the legal fees charged by counsel appointed under this section.

Section 3 counsel play a vital role in ensuring that the rights of persons alleged to be lacking legal capacity are recognized and advanced. However, lawyers acting as section 3 counsel have pointed out to the LCO that in a not inconsiderable number of cases, the person currently acting as guardian or exercising a POA for the person at issue is opposed in interest to that person, and that these SDMs have considerable opportunity and incentive to attempt to thwart effective representation by section 3 counsel. If they have physical custody of the individual, they may attempt to block or limit access by the counsel, or may attempt to monitor or eavesdrop on conversations between the lawyer and client. They may use their control over the finances of the individual to unreasonably block or delay payment of legal fees. These difficulties may undermine the ability of section 3 counsel to perform their roles effectively, and may dissuade lawyers from taking on section 3 clients. It has been suggested that reforms are required to reduce the opportunities for SDMs to improperly thwart the intent of the section 3 provisions.


3.     Legal Aid

The Legal Aid Services Act, 1998 requires Legal Aid Ontario (LAO) to provide services in the area of mental health law.[847] In particular, LAO provides legal aid certificates to clients in the civil mental health system who are exercising rights to review by the CCB under the MHA and HCCA. The qualifications for a legal aid certificate for a CCB hearing are relaxed compared to those for other issues. In the fiscal year 2010-11, LAO expended $2.8 million on certificates for CCB applications, which included the issuance of 2,836 certificates and 2,566 hearings conducted. To place this number in context, in that year, there were a total of 5,216 applications filed with the CCB.

Section 81 of the HCCA states that where an individual who is party to a proceeding before the CCB may be incapable and does not have counsel, the CCB may direct LAO to arrange for legal representation. It should be noted that this does not require LAO to issue a certificate for that legal representation if the individual is not otherwise eligible, and the individual will be responsible for the resultant legal fees.

LAO maintains a Panel Standard that governs lawyers who represent clients before the CCB. This requires lawyers who are admitted to the CCB Panel to

  • undertake mandatory training on advocacy before the CCB,
  • observe at least one CCB hearing prior to representing an LAO client before the CCB;
  • maintain a minimum level of experience (generally three retainers every two years);
  • comply with the “LAO Expectations for CCB Panel Members”, which includes requirements related to client contact, accommodation of client needs, appropriate preparation for hearings, and responsiveness, among others.

About 100 lawyers actively provide legal aid services in mental health law (including hearings before the Ontario Review Board as well as CCB hearings).

LAO does not generally fund appeals from the CCB to the Superior Court. As noted in the previous Chapter, the lack of access to representation for individuals appealing from CCB decisions and the resultant delays in final settlements of pressing issues was a point of significant concern for a number of stakeholders during the LCO’s preliminary consultations.

Legal Aid Ontario is currently developing a comprehensive Mental Health Strategy, a number of aspects of which may have a significant impact on individuals who fall under legal capacity, decision-making and guardianship law The goal of the Strategy is to expand and improve on current LAO services while dedicating new programs and resources to clients with mental health and addictions issues. LAO has released a Consultation Paper on the Strategy, and expects to formally release the Strategy for comment later in 2014.[848]

 

4.     Specialty Legal Clinics

Specialty legal clinics provide both systemic and individual advocacy around a range of issues facing marginalized groups of Ontario. Two of these clinics, ARCH Disability Law Centre (ARCH) and the Advocacy Centre for the Elderly (ACE), have devoted considerable portions of their resources to issues related to legal capacity, decision-making and guardianship. It should be noted, however, that both clinics have limited resources and small staff complements, and cannot provide direct legal representation to all those who might need it and be unable to afford it.

In operation since 1984, ACE provides legal services to low-income seniors across Ontario. These services include individual and group client advice and representation, public legal education, community development and law reform activities. Because laws related to legal capacity, decision-making and guardianship have a disproportionate impact on older Ontarians, this has been an area of core focus for ACE. ACE provides advice and information on issues related to capacity, health care consent and advance care planning, and engages in strategic litigation, recently including a joint intervention with ARCH in the case of Cuthbertson v Rasouli, a decision of the Supreme Court of Canada related to consent to withdrawal of treatment.[849] ACE has engaged in considerable public education on issues related to capacity and substitute decision-making, as well as the development of an extensive range of publications on the topic, including webinars, plain language materials and a tool for health professionals produced in collaboration with the National Initiative for the Care of the Elderly (NICE). ACE is also active in law reform efforts in the area, including the preparation of submissions.

ARCH provides a similar range of services to persons with disabilities, and has considerable experience in working with individuals who have capacity issues or are erroneously assumed to have capacity issues due to their disability or their medication. ARCH has identified legal capacity as a priority area of work. ARCH has completed policy papers on issues related to capacity, such as addressing capacity of parties before administrative tribunals, has provided workshops on capacity law for individuals with disabilities and for workers who support people with intellectual disabilities. On an individual basis, ARCH provides advice to people with disabilities who are subject to guardianship or other forms of substitute decision-making, assist clients in negotiations with the PGT or other substitute decision-makers, helps clients to obtain and prepare for capacity assessments, and assist clients in terminating guardianships. ARCH has been involved in a number of significant cases related to capacity and consent law, recently including Zheng v Zheng, an important case on orders for capacity assessment in the context of applications for termination of guardianship.[850]

 

5.     Some General Comments

As the above demonstrates, Ontario’s legal capacity, decision-making and guardianship system is not without advocacy and support mechanisms. There are a number of individuals and organizations that aim to provide both formal and informal supports in order to empower individuals and protect rights, and these are rightly viewed as vital elements of Ontario’s legal capacity, decision-making and guardianship laws. 

However, it is also true to say that the current system does not differ substantially from that described and found inadequate at the time of the Fram Committee Report and the O’Sullivan Review. Many individuals who are vulnerable due to disability, isolation, power imbalances or other factors are navigating a complex legal and service delivery system without access to formal supports in doing so. The services and supports that exist are fragmented and limited in scope.

As was referenced earlier in this Chapter, two of the major concerns identified during the preliminary consultations were the difficulties individuals face in navigating systems and the challenges that service providers face in assisting them in doing so, together with concerns that the system lacks effective mechanisms for ensuring that the rights set out in the legislation are respected. These concerns may be considered as directly linked to the lack of access to independent, knowledgeable information, advice and navigational assistance targeted to those who are directly affected by the law and their supporters.

The Advocacy Act and the accompanying measures in the SDA and Consent to Treatment Act were unsuccessful due to perceptions of costliness, concerns about excessive adversarialism, and the hope that informal supporters such as family and friends could successfully perform this role. While the Advocacy Act may or may not have proved a viable mechanism for meeting the need identified, its repeal did not obviate the need for some mechanisms to fill this role, however they might be labelled.

A review of other jurisdictions and of other areas of Ontario law addressing vulnerable populations reveals that a number of systems include mechanisms, variously constituted, aimed at filling this role. The following sections identify some potential models. This is not a comprehensive review, but is simply intended to outline some existing options. While it is unlikely that any of these models could be simply transferred intact into Ontario’s legal capacity and guardianship system to effectively fill the need, they may assist in identifying the elements of some options that could be considered in designing an Ontario-appropriate mechanism. 

 

  • QUESTION FOR CONSIDERATION: Are there ways to strengthen existing supports for accessing rights under legal capacity, decision-making and guardianship laws, including rights advice, section 3 counsel and legal aid services for persons falling within this area of the law? Are there ways in which these supports could be expanded to reach a broader range of needs?

 

D.    Models for Provision of Supports to Accessing the Law

Supports for accessing the law may be provided in a number of different ways. The following are examples of supports provided through specialized independent public institutions, through services embedded within institutions that come into contact with those who may need assistance, and through funding of community agencies. These examples are not set out as specific proposals for reforms to Ontario laws and systems, but rather are intended to provide starting points for consideration of potential approaches to supports in the Ontario context.

 

1.     Specialized Public Advocacy Institutions

Provisions of supports through an independent, publicly funded advocacy organization is intended to create a specialized, centralized and expert organization, able to develop a deep understanding of the issues and the population served, and to connect individual and systemic issues. Two examples are provided below. The Australian state of Victoria has, as part of its legal capacity, decision-making and guardianship system, a specialized “Public Advocate” which provides a range of services and supports, including individual supports for accessing rights under the law. In Ontario, the Provincial Advocate for Children and Youth provides a central point for advocacy for a population that experiences significant restrictions on voice and access to the law.

 

The State of Victoria: Public Advocate Office  

Australia’s “Public Advocate” institutions provide a model of holistic, independent, institutional public advocacy in the context of capacity and guardianship law. Several Australian states, including Queensland, Victoria and South Australia, have “Public Advocates” or bodies performing a similar function.

Since the mid-1980s, Victoria has had an independent statutory official called the “Public Advocate”, which has a broad responsibility for promoting and safeguarding the rights and interests of persons with disabilities. The Public Advocate has a dual role as both a guardian of last resort and an “official watchdog” for the rights of persons with disabilities in general. The roles of the Public Advocate are

(a)    to promote, facilitate and encourage the provision, development and co-ordination of services and facilities provided by government, community and voluntary organizations for persons with a disability  with a view to promoting the development of the ability and capacity of persons with a disability to act independently; minimizing the restrictions on the rights of persons with a disability; ensuring the maximum utilization by persons with a disability of those services and facilities; and encouraging the involvement of voluntary organizations and relatives, guardians and friends in the provision and management of those services and facilities;

(b)    to support the establishment of organizations involved with persons with a disability, relatives, guardians and friends for the purpose of  instituting citizen advocacy programs and other advocacy programs; undertaking community education projects; and promoting family and community responsibility for guardianship;

(c)     to arrange, co-ordinate and promote informed public awareness and understanding by the dissemination of information with respect to  the provisions of the Guardianship and Administration Act and any other legislation dealing with or affecting persons with a disability;

(d)    to investigate, report and make recommendations to the Minister on any aspect of the operation of the Act referred to the Public Advocate by the Minister.[851]

The functions of the Public Advocate with respect to individual supports include seeking assistance for a person with a disability from any department, institution, “welfare organization” or service provider; making representations on behalf of or acting for a person with a disability; and giving advice to any person about the Act.[852]

The Victorian Law Reform Commission states that:

The Public Advocate engages in both individual and systemic advocacy. These terms tend to be used in different ways throughout the community. Advocacy can, however, be understood in broad terms as ‘essentially the very ordinary process of standing up for the rights of people who are being treated unfairly’. The Public Advocate describes its advocacy work as a ‘last resort’ service that ‘focuses on the best interests of the person with a disability who is at risk of abuse, exploitation or neglect’.[853]

Individual advocacy may involve phone calls, writing letters, arranging meetings, or help with making formal complaints, mediation or legal cases. Systemic advocacy flows from the Public Advocate’s policy work, and includes research, submissions and reports.

In the fiscal year 2012-2013, the Public Advocate provided advocacy services to 394 individuals,[854] in addition to systemic activities such as submissions to draft laws, policies, regulations and guidelines. Advocacy cases may be referred from the Victorian Civil and Administrative Tribunal (VCAT) (described in the previous Chapter), may be the result of direct requests to the Office, or may be taken up of the Public Advocate’s own initiative. The Public Advocate also notes the “intent[ion] of the office to maintain an advocacy focus for all individuals with a disability”.[855] Individual advocacy services may address both short and long-term or complex issues. The Public Advocate has recently initiated a Secure Extended Care Unit advocacy project, which identifies individuals who have been residents in these units for extended periods of time in order to speak with them and their care providers and clarify the issues leading to extended residence in these units. In some cases this may lead to changes in residence status.[856]

In the Victorian Law Reform Commission’s consultations on reforms to guardianship law, the advocacy functions of the Public Advocate received strong support, although there were suggestions that it would be beneficial to clarify and strengthen the legislative provisions relating to this role. Concerns were expressed that because of the dual role of the Public Advocate as both advocate and guardian of last resort, the advocacy functions were neglected in favour of the Public Advocate’s guardianship responsibilities.

The Public Advocate suggested that its advocacy functions (particularly individual advocacy) should be based on a set of principles, in particular that advocacy must

  • be provided in a way that promotes the personal and social wellbeing of the person;
  • give effect, wherever possible, to the wishes of the person;
  • be carried out, wherever possible, in consultation with the person;
  • be provided in a manner that is least restrictive of the person’s freedom of decision and action as is possible in the  circumstances;
  • assist the person to live in safety and security and free from abuse, exploitation and neglect; and
  • allow the person to participate in a contribute to the community to the maximum extent possible in the circumstances.[857]

The Victorian Law Reform Commission has recommended amendments to clarify the Public Advocate’s advocacy role, including its ability to engage in both individual and systemic advocacy and an ability to intervene in court or tribunal proceedings as part of this role, and that the advocacy role should be guided by a set of principles in harmony with those for guardianship legislation as whole.[858]

The Public Advocate system, while broader in reach than persons found to lack legal capacity, is closely tied to the capacity and guardianship system. It is responsive in approach (there are no requirements to involve advocates) and for the most part, ad hoc. The scale of its advocacy activities is relatively small, but these activities are integrated with its activities as a guardian, investigator, and overall centre point for issues of persons with disabilities. It is able to undertake both individual and systemic advocacy, and in some cases the two are linked, as in the Extended Secure Care Unit initiative mentioned above.

 

Ontario:  Provincial Advocate for Children and Youth

Ontario’s Provincial Advocate for Children and Youth provides an Ontario example of a formal advocacy program operating out of a specialized institutional structure. The Provincial Advocate has a lengthy history dating back to the creation of a “Child Advocate” in 1978. The office was situated within the Ministry of Community and Social Services, and reported to the Deputy Minister and focussed on providing individual advocacy for “hard to serve” or “incorrigible” children. The position was given a legislative foundation in the 1982 Child and Family Services Act as the Office of Child and Family Service Advocacy, and over time, gradually began to take on systemic as well as individual advocacy.[859]

In 2007, the Provincial Advocate for Children and Youth Act was passed in the Ontario Legislature with all-party support. The Advocate is appointed by the Lieutenant Governor in Council for a period of five years,[860] on the recommendation of an all-party committee, and reports directly to the Legislature, rather than to any Ministry. The Advocate is required to table an annual report to the Legislature. The Advocate provides advocacy for children under the Child and Family Services Act, to children in provincial or demonstration schools, and to children and youth with respect to issues arising in (or transportation to and from) court holding cells.[861] The Advocate has adopted as its Mission Statement: “The Office of the Provincial Advocate for Children and Youth serves youth in state care and the margins of state care through individual, systemic and policy advocacy. The Office strives, at every level of its operation to be an exemplar of youth participation.”[862]

The Advocate is provided with broad powers to carry out its function. It can receive complaints; represent the views and preferences of individuals to service providers and agencies; provide informal dispute resolution between individuals and service providers; conduct reviews (either in response to complaints or of its own initiative); make reports, provide advice and make recommendations; provide information on how to access approved services; and engage in systemic reviews; among other activities. It may not represent individuals before a court or tribunal.[863]

The Advocate has described its work as positioned across three areas: individual advocacy, systemic advocacy and community development.[864] In 2011-2012, the Advocate received close to 3500 calls for assistance, and undertook a wide range of activities, including assisting First Nations children and youth to prepare an alternative report to the United Nations Committee on the Rights of the Child regarding inequities in education funding; the creation of My REAL Life Book which provides an account of the child welfare system from the perspective of children and youth in that system; the Our Voice, Our Turn report and roadshow on children transitioning out of care, the development of a submission to the Social Assistance Review Committee, the creation of an Inquest Database to inform advocacy around the deaths of children who fall within the Advocate’s mandate, regular group home reviews, and many others.

Service providers and agencies are required to inform children in care of the existence and role of the Advocate. They must also provide information about how to contact the Advocate, and where a child or youth wishes to do so, must afford means to do so privately and without delay.[865] The legislation also provides for access to information and protection of confidentiality.[866]

Reflecting a broad and principled approach to the mandate, the Act specifies that in its interpretation and application, regard must be had to the principles of the United Nations Convention on the Rights of the Child, and to the desirability of the Advocate being “an exemplar for meaningful participation of children and youth through all aspects of its advocacy services”.[867]


2.     Embedded Institutional Supports

As a contrast to the provision of responsive supports through a specialized institution, supports and advocacy may also be embedded within broader institutional structures, with a mandate to provide proactive universal supports at identified points where rights are at stake. This is the model under which Ontario’s Rights Advisers currently operate. As was noted in the discussion of Rights Advisers, this program has strong stakeholder support, and it has been suggested that it, or a similar program, be expanded to other areas or populations. Two examples are set out below of support and advocacy programs in this area of the law that operate in different or broader contexts than the Rights Adviser program. The Independent Mental Capacity Advocates (IMCA) of the United Kingdom operate through that jurisdiction’s National Health Service to provide advocacy in the treatment and long-term care context to individuals who lack legal capacity and are without supporting family and friends. Review Officers in Alberta provide services and supports to persons in the process of court appointments related to legal capacity and decision-making.


United Kingdom: Independent Mental Capacity Advocates

The Mental Capacity Act 2005 includes a framework of legal rights to advocacy in specified circumstances.  It creates an Independent Mental Capacity Advocacy (IMCA) service, which is responsible for helping “particularly vulnerable people who lack the capacity to make important decisions about serious medical treatment and changes of accommodation, and who have no family or friends that it would be appropriate to consult about those decisions”.[868] An IMCA must be involved with a person who lacks legal capacity and has no one to support them, whenever a serious medical treatment is proposed, or long-term residential accommodation is under contemplation.[869] IMCAs may be involved in case reviews and adult protection cases.[870] The local authorities or National Health Service (as relevant) (“the responsible party”) are responsible for arranging for an IMCA intervention where required or appropriate.

The IMCA’s role is to support and represent the individual. To facilitate this role, they have a legal right to access the necessary healthcare or social care reports as well as to meet with the individual in private. Any information or reports that the IMCA provides must be taken into account in determining the decision at issue. The duties of the IMCA are defined in the Code of Practice as to

  • be independent of the person making the decision;
  • provide support for the person who lacks capacity;
  • represent the person without capacity in discussions to work out whether the proposed decision is in the person’s “best interests” as defined by the Act;
  • provide information to help work out what is in the person’s best interests; and
  • raise questions or challenge decisions which appear not to be in the best interests of the person.[871]

The Code of Practice under the Mental Capacity Act 2005 emphasizes the duty of the IMCA to ascertain the wishes, values and preferences of the individual:

The IMCA needs to try and find out what the person’s wishes and feelings might be, and what their underlying beliefs and values might also be. The IMCA should try to communicate both verbally and non-verbally with the person who may lack capacity, as appropriate. For example, this might mean using pictures or photographs. But there will be cases where the person cannot communicate at all (for example, if they are unconscious). The IMCA may also talk to other professionals or paid carers directly involved in providing present or past care or treatment. The IMCA might also need to examine health and social care records and any written statements of preferences the person may have made while they still had capacity to do so.[872]

IMCAs are required to have specific experience, have completed IMCA training, have integrity and a good character, and be able to act independently.[873] The “responsible bodies” should put into place dispute resolution procedures, as well as procedures, training and awareness programmes to ensure that staff know when they need to instruct an IMCA and have the relevant information for doing so; keep relevant records related to the activities of the IMCA’s activities; record how the service provider has taken into account the IMCA’s report and information as part of the process of working out the person’s best interests; give access to relevant records as requested and share relevant information; let all relevant persons know that an IMCA has been instructed; and inform the IMCA about the ultimate decision and the reasons for it. [874]

Like Rights Advisers, the activities of IMCAs are

  • legislatively mandated, with a responsibility placed on the part of relevant institutions to facilitate their work:
  • focused on specific decisions or turning points where individuals are particularly vulnerable: and
  • focused mainly on individual advocacy.

The role of IMCAs differs from that of Rights Advisers in some important ways. Support is targeted to a broader range of situations, including those that, in Ontario, are addressed by rights information rather than rights advice. However, supports are targeted only to those who are most vulnerable – that is, those who have no informal supports available.

Secondly, IMCAs are tasked not only with providing information and facilitating a challenge to a decision, but more broadly with representing the person. 

This role of the IMCAs must be understood in the context of the legal capacity and guardianship regime of England and Wales, which differs sharply from Ontario’s in several key respects. First, the law explicitly recognizes the role that supporters may play in assisting individuals to make a decision: one of the key principles of the MCA is that people must be supported as much as possible to make a decision prior to reaching a conclusion that they lack the capacity to make the decision. Support may include provision of information in alternative formats, ensuring appropriate contexts and times for discussions, or allowing relatives or friends to provide help or support.  In this context, the IMCA might be considered as playing the role of a supporter for a person who lacks informal supports. 

Secondly, where a person is found to lack capacity, and does not have a lasting power of attorney or a court-appointed deputy, the health care or social care worker will make the decision in the best interests of the person involved. As a result, the role of the IMCA becomes a vital counterbalance to the power of professionals who will decide on their clients’ behalf. The IMCA is a last protection for the rights of the person found to be legally incapable: their role in representing the individual and challenging decisions is a fundamental procedural safeguard. 

 

Alberta: Review Officers

As part of its system for applications for co-decision-making, guardianship and trusteeship orders, Alberta’s new Adult Guardianship and Trusteeship Act creates a position of Review Officer within the Public Guardian and Trustee. When the Court receives an application for the appointment of a co-decision-maker, guardian (for personal matters) or trustee (for financial matters) other than the Public Guardian and Trustee, a Review Officer must provide a written report to the Court that sets out

  • the views and wishes of the person who is the subject of the application;
  • the suitability of each proposed co-decision-maker, guardian or trustee, as well as of any proposed alternatives;[875]
  • in the case of  ‘desk applications’, the compliance of the Review Officer with a number of procedural duties;[876] and
  • any other comments that the Review Officer considers relevant to the application.[877]

The Court is required to consider these reports when reaching its decision,[878] unless the application is an urgent one.[879]

Applicants for a co-decision-making, guardianship or trusteeship order must submit a comprehensive package of documentation in the required formats to the Review Officer. These include personal references, consent to a criminal records check, and for guardianships or trusteeships, a detailed plan.[880]

The Review Officer has a duty to

  • meet in person with the individual who is the subject of the application;
  • explain the nature and the purpose of the application, and that the individual has a right to request a hearing and to attend and make representations at such a hearing; and
  • ascertain the views and wishes of the person regarding the application.[881]

The role of the Review Officer is in some ways analogous to that of a Rights Adviser, in that the Officer is focussed on individual issues; has a proactive role (that is, every person who is subject to a particular type of decision has mandated access); and is focussed on provision of information and communication of views rather than representation or negotiation.

Rights Advisers enter the process where a determination has already been made that changes the status of the individual. Review Officers play their part at the beginning of the process, prior to any determination being made. This has a number of important ramifications for their role in the overall legal capacity, decision-making and guardianship system. As well, there are important differences in the way the support role is envisioned, including the following;

  • The requirement to ascertain and report the views and wishes of the affected individual gives the Review Officer an important role in promoting the voice of the individual.
  • the Review Officer also has an evaluative function in assessing options that is quite different from that of a Rights Adviser.
  • As part of the PGT, the Review Officer function is not structurally independent.
  • The Review Officer function does not have the systemic element that the Psychiatric Patient Advocate Office provides in Ontario’s system.

 

3.     Agency-Provided Supports

Supports may also be provided in a decentralized fashion, through funding of community agencies that have connections to the affected communities. This allows supports to be provided as part of a more holistic approach to the needs of the affected individual, through organizations that may already have strong profiles and relationships with affected communities and individuals. Ontario`s Adult Protective Services Worker program provides an example of such a support service.


Ontario: Adult Protective Services Workers

The Adult Protective Service Worker (APSW) program has operated in Ontario since 1974. It currently operates under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 (SIPDDA), under the aegis of the Ministry of Community and Social Services (MCSS). Under SIPDDA, MCSS funds appropriate sponsoring agencies (usually generic service providers) to provide adult protective service worker programs to eligible individuals, without a fee. 

The APSW program aims to support adults with a developmental disability who are living on their own (with some exceptions) to live as “independently, safely and securely as possible in the community”. APSWs work directly with eligible individuals on a voluntary basis, with the individuals as active participants in all steps of the relationship.

APSWs provide the following services:

1)     Advocacy on the behalf of the individuals they serve, to assist with accessing and maintaining generic community supports, apply for government-funded services and otherwise assist with living safely and securely in the community;

2)     Support to individuals in identifying their own strengths and needs, and providing referrals and information;

3)     Coordination and case management of community resources, service plans, liaison with other service providers;

4)     Supports in other areas, such as problem-solving, life-skills development, general education and awareness building.

The MCSS 2012 Policy Guidelines for the Adult Protective Service Worker Program state that:

In the role of advocate, the APSW works with community-based services and agencies to:

  • Ensure, within the scope of the APSW’s mandate and authority, that the rights of the adult who has an developmental disability are acknowledged and respected, and
  • Inform the adult who has a developmental disability of their rights.

Before acting as an advocate, the APSW determines the level at which the individual who has a developmental disability understands a potentially harmful or complex situation and can speak on their own behalf.[882]

APSWs do not make decisions on behalf of individuals, or act as guardians or under power of attorney. The Policy Guidelines emphasize “While the APSW can assist people in making healthy and safe decisions, ultimately the final decision belongs to the adult who has a developmental disability and who is capable of making those decisions”.[883] In extraordinary circumstances, the APSW may temporarily act as a trustee for ODSP income supports, while other service alternatives are put into place.[884]

 

  • QUESTION FOR CONSIDERATION: What can be learned from supports to accessing the law in other jurisdictions or in other Ontario programs?

 

  • QUESTION FOR CONSIDERATION: Should supports be provided proactively, or upon the request of the individual? Does this differ at various points in the system?

 

  • QUESTION FOR CONSIDERATION: Who should deliver supports to accessing the law in this area? For example, should supports be provided through community agencies, a specialized public institution, or embedded institution-specific supports?

 

E.     Questions for Consideration

  1. What types of supports are most important for assisting persons falling within this area of the law to understand and assert their rights? Should the focus of supports be on provision of accessible, timely and appropriate information; assistance in navigating complex systems; supporting affected individuals to articulate their values and wishes; support to advocate for their rights; or some other needs?
  2. What can be learned from the history of the Advocacy Act to guide reforms to the provision of supports for persons falling within this area of the law?
  3. Are there ways to strengthen existing supports for accessing rights under legal capacity, decision-making and guardianship laws, including rights advice, section 3 counsel and legal aid services for persons falling within this area of the law? Are there ways in which these supports could be expanded to reach a broader range of needs?
  4. What can be learned from supports to accessing the law in other jurisdictions or in other Ontario programs?
  5. Should supports be provided proactively, or upon the request of the individual? Does this differ at various points in the system?
  6. Who should deliver supports to accessing the law in this area? For example, should supports be provided through community agencies, a specialized public institution, or embedded institution-specific supports?

 

 

 

 

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