One of the dominant issues throughout this Paper is the effect of the pervasive lack of knowledge and understanding of this area of the law on its meaningful and effective implementation. This affects every aspect of the law, and every group that comes into contact with it. This Chapter gathers together material from throughout the Paper to provide a focussed examination of this problem.
There are four groups who must understand the law in order for it to be implemented as envisioned:
- Those who are directly affected (those who may or have been determined to lack legal capacity, or who are attempting to create authorizations, such as powers of attorney, to address future decision-making arrangements);
- Those who act for others who have been determined to lack legal capacity: as described in Part Three, Chapter II, these are mostly family and friends, but may include others;
- Those who provide information, advice and support to those who interact with Ontario’s legal capacity and guardianship system, such as advocates, community agencies and social service providers;
- Those professionals who are responsible for implementing the law, such as professionals who assess capacity, obtain consent, or are responsible for ensuring compliance with the law.
Each of these groups has different information needs, and will face different opportunities and barriers in accessing information and education.
As noted throughout this Paper, the range of those affected or potentially affected by this area of the law is very wide. For example, any person may decide that it is advisable to create planning documents such as powers of attorney, as part planning for contingencies. Thus, in addition to education and information targeted to particular groups, a broader public education strategy may be essential. Certainly there were extensive public education efforts at the time that the current laws came into effect.
It should be noted that provision of information is not a panacea for all of the issues affecting this area of the law. Information on its own does not create the ability to act on it. Reforms related to access to information should be considered in conjunction with other potential reforms, such as improved dispute resolution, simplified or more flexible processes or additional mechanisms for monitoring and oversight.
- QUESTION FOR CONSIDERATION: How could information, education and training related to legal capacity, decision-making and guardianship be better coordinated and made more accessible to the general public and all those seeking it?
B. Persons Directly Affected by the Law
1. Older Adults and Persons with Disabilities, and Access to Information
The importance of – and barriers to – access to information about the law was a recurrent theme in both Framework projects. As the Framework for the Law as it Affects Persons with Disabilities comments, where there is a lack of access to information about rights and recourse under the law, “the autonomy of persons with disabilities may be undermined, as they are unable to make informed choices about laws, policies and programs that may affect them”.
During the consultations for the Framework for the Law as it Affects Older Adults, many older adults expressed that they felt poorly informed about their rights and legal options: in focus groups, many participants had difficulty identifying where they might go to find information about rights and responsibilities. This was particular true for some groups, such as newcomer older adults.
A range of barriers to accessing information were identified for both older adults and persons with disabilities. These include a lack of disability-accessible information and heavy reliance on online forms of information, particularly since older adults and persons with disabilities are more likely, for different reasons, to have limited access to technology. As well, those who live in low-income may have more challenges in locating accurate and comprehensive information that relates to them, and both persons with disabilities and older adults are more likely to live in low-income. Further, needs for information often arise at a point when individuals are in crisis, and at such times, these individuals will have additional difficulties in navigating complex systems and multi-layered bureaucracies.
2. Provision of Information to Affected Individuals under the Law
To ensure that those directly affected by this area of the law are able to effectively access their rights, they need to receive information about:
- the relevant provisions of the law;
- the potential impact of the law on their particular circumstances;
- the options available for challenging a decision or proceeding; and
- the resources available to assist them in doing so.
For this information to be meaningful, it must be
- accessible in the broadest sense of the term, taking into account disability-related accommodation needs, the diversity among those affected by the law (including cultural and linguistic diversity), the circumstances of those living in congregate settings and remote or rural areas, and the barriers faced by those living in low-income;
- timely, so that individuals receive the information at the key transition points when they are able to make use of it;
- appropriate in terms of the kind of information that is provided; and
- trustworthy, in that it is free of bias or conflict of interest.
The means by which individuals are able to access information will differ depending on the particular point in the legal capacity, decision-making and guardianship system at which they find themselves. That is, the best mechanisms for providing information to individuals who are considering creating a POA will differ from those for persons who are subject to a guardianship application, or for persons who are concerned that their guardians are not respecting the limits of their authority. Key points at which individuals may require information about rights and recourse include
- assessment of capacity;
- appointment or termination of an appointment of a substitute decision-maker (SDM), whether through a personal appointment, a public appointment or an automatic appointment (e.g., the HCCA’s hierarchical list);
- when an SDM makes key decisions affecting significant rights;
- when there are concerns relating to misuse or abuse of powers under the legislation.
Current Information Requirements
As is described in more detail elsewhere in this Paper, the Substitute Decisions Act (SDA), Part III of the Mental Health Act (MHA) and the Health Care Consent Act (HCCA) include some requirements for information to be provided to affected individuals at key transition points.
Assessing Capacity: Part Three, Chapter II of this Paper outlined the statutory requirements for provision of information to individuals undergoing an assessment of capacity. Because an assessment of capacity can in a number of circumstances have very significant automatic effects on the individual’s status and choices, information about the legal effect of the assessment, the rights of the individual and the options available is crucial.
- Mental Health Act (MHA) examinations of capacity to manage property: those undergoing these examinations have a right to notice of the issuance of a certificate of incapacity, and to timely provision of rights advice by a specialized Rights Adviser. The Rights Adviser will provide information to the patient about the significance of the certificate and the right of appeal.
- HCCA assessments of capacity to consent to treatment: a finding of lack of capacity must be communicated to the individual. Outside of psychiatric facilities, the form and content of the notice depends on the guidelines of the regulating professional college.
- HCCA evaluations of capacity to consent to admission to long-term care or to personal assistance services: the HCCA does not require provision of information to the affected individual; however, the mandated form for evaluators includes an information sheet that must be provided to the individual and a box to tick to indicate that the individual has been informed about the finding and the right to appeal.
- SDA assessments by designated Capacity Assessors: the individual must be provided with information about the purpose, significance and potential effect of the assessment, as well as written notice of the findings of the assessment. Where a statutory guardianship results, the PGT must inform the individual that it has become the guardian and that there is a right to apply for review of the finding.
The level of access to information at this stage, and the independence and oversight of the accuracy and thoroughness of that information, therefore varies considerably.
Roles and responsibilities of SDMs: the SDA requires all SDMs, whether appointed through a power of attorney (POA) or a guardianship, to explain their powers and duties to the affected individual. There is no formal mechanism for ensuring that this step is carried out. Further, while the PGT can of course be expected to thoroughly understand the “powers and duties” of an SDM, as is discussed below in many cases, the family and friends who are acting as SDMs are not conversant with their statutory responsibilities: they will neither be aware of their duty to explain them, or in a position to accurately describe them. And of course, there will be some minority of SDMs who are abusive, neglectful or exploitive. In these situations, which are precisely the ones where the individual will most require understanding of legal rights and recourse, the SDM is very unlikely to detail them.
As well as the formal requirements under the statutes, community agencies, service providers and advocacy organizations may provide information at various points, either through public education activities or in response to requests for assistance.
There is, for example, a plethora of material available on the nature and effect of powers of attorney (POAs), for those that search it out. Notably, the Ministry of the Attorney General’s POA “kit” contains considerable practical information about the requirements for, and benefits and risks of POAs. Community Legal Education Ontario provides online resources about POAs, as does the Advocacy Centre for the Elderly (ACE), the Ontario Seniors Secretariat, and the National Initiative for the Care of the Elderly. Similar information is available about health care consent, guardianship and other issues related to this area of the law.
3. Improving Access to Information for Those Directly Affected
Throughout this Paper, options have been identified for improving access to information about the law at various key points. These include
- more stringent requirements for the creation of a power of attorney, including use of mandatory forms or a requirement to seek legal advice (Part Three, Chapter III);
- expanded use of “rights advice” services, particularly in situations where currently requirements are for rights information (Part Four, Chapter III);
- expanded supports for navigating the law, including various types of advocates or support workers (Part Four, Chapter III).
- QUESTION FOR CONSIDERATION: What are the priorities for reforms to law, policy or practice to ensure that individuals who encounter the capacity, decision-making and guardianship system have meaningful access to the information that they need to preserve their autonomy to the greatest extent possible and to understand and enforce their rights?
C. Those Acting as Substitute Decision-makers
Part Three, Chapter II of this Paper examined the very high level of responsibility entailed in acting as an SDM, and the challenges faced by those individuals, mostly family and friends, who take on this demanding role. As that Chapter noted, there is a great need for supports and resources to enable these family members and friends to carry out these roles as intended by the statutes. Information and education may not deter negatively motivated individuals from abusing their roles as SDMs. However, the vast majority of SDMs, including those who are currently failing to abide by statutory requirements, are not intentionally misusing their powers. Rather, they do not understand the nature of their responsibilities, or do not have the skills or supports to carry out those responsibilities adequately. Better information and education for SDMs can assist individuals in meeting their responsibilities as well as contributing to holding them accountable when they fail to do so: it is difficult to hold individuals to account for failure to carry out duties of which they were not aware.
Despite the importance of informed SDMs, the currently statutory regime provides little in the way of formal requirements to inform or support them. For example, persons appointed under a POA need not even be informed that they have been appointed, and there are no mechanisms for ensuring that attorneys understand their role. While the process for becoming a guardian is more rigorous than that for a personal appointment, there are no requirements or formal supports to assist them with gaining the information and developing the skills that are necessary. While a variety of organizations and institutions have voluntarily developed information resources for SDMs, these are fragmented and most frequently require the SDM to seek them out.
Part Four, Chapter I, dealing with abuse and misuse of SDM powers, described the voluntary training sessions provided to guardians and administrators in the Australian state of Victoria, as well as the recommendation of that state’s Law Reform Commission that the Tribunal that deals with legal capacity and guardianship matters be empowered to order training as a condition of appointment. ARCH Disability Law Centre, in their paper on protecting the rights of persons under guardianship, recommended the institution of mandatory training programs, which would include
- information about legal obligations under the SDA;
- information about the scope and limitations of the powers of a guardian’s decision-making authority;
- education on how to carry out SDM responsibilities in a way that respects the rights of the individual.
As noted in Part Three, Chapter II, SDMs would also benefit from information connecting them with resources that are available to assist them with the practical, ethical and emotional challenges associated with their responsibilities.
The Victorian Law Reform Commission further recommended that guardians and administrators, at the time of their appointment, be required to sign an undertaking to comply with their responsibilities, as a means of ensuring that they are aware of the seriousness of the obligation they are undertaking and the nature of their statutory duties.
- QUESTION FOR CONSIDERATION: What are the priorities for reforms to law, policy or practice to ensure that persons appointed as substitute decision-makers adequately understand their roles and responsibilities, and have the skills necessary to effectively perform their often challenging roles?
D. Those Providing Services to Persons Directly Affected
Beyond those organizations or professionals who are directly responsible for implementing the law, which are discussed below, there are a wide variety of service providers, community agencies and advocacy organizations that regularly interact with groups of individuals who are directly affected with the law, such as family caregivers; persons with developmental, intellectual, cognitive or psycho-social disabilities; or older persons. These organizations may find themselves attempting to provide informational or navigational assistance to individuals who interact with this area of the law, or confronted with concerns about abuse.
These organizations may be large or small; may be public, private or non-profit; and may be found across a wide range of sectors. While they will have a better ability to locate resources than most private individuals, in most cases, they will not have easy access to expertise in the area. To some degree, access to information and advice exists on an informal basis: many of the experts that the LCO spoke to during the preliminary consultations described themselves as regularly providing assistance and advice to colleagues and others in understanding and interpreting law and appropriate practice in this area. Such advice relies, however, on informal networks of contacts and on the goodwill and dedication of those providing such advice beyond the scope of their regular duties.
During the LCO’s preliminary consultations, we heard from a number of organizations, particularly smaller social services providers, about the challenges they face in addressing these needs; they urged the LCO to identify ways to improve access to expertise and advice on complex issues related to this area of the law for these organizations. Such assistance might take the form, as one person suggested, of a telephone advice line. In the Australian state of Victoria, the Office of the Public Advocate includes as part of its role the provision of information to professionals who come into contact with the legal capacity, decision-making and guardianship system, such as healthcare professionals and financial services providers.
- QUESTION FOR CONSIDERATION: What are the priorities for reforms to law, policy or practice to ensure that service providers adequately understand their roles and responsibilities under the law, have a meaningful understanding of the circumstances and experiences of the individuals affected by these laws, and have the skills necessary to effectively interpret and apply the law?
E. Those Implementing the Legislation
The effective implementation of Ontario’s legal capacity, decision-making and guardianship regime depends on the knowledge, skills and efforts of a wide range of organizations and professionals. Some, such as those professionals who assess capacity under the SDA, MHA or HCCA, are directly assigned important statutory responsibilities. Others are responsible for setting policies or developing practices through which the legislation is implemented, such as health or long-term care institutions. Some, such as the relevant professional colleges, are responsible for receiving complaints related to certain duties under the law.
It is important to emphasize that service providers are, by and large, well-intentioned in their efforts to serve their clients, and that they may be operating in contexts of considerable constraint and difficulty. There may be no simple solutions to the ethical, practical or resource challenges that these institutions or professionals may face in providing services to what may at times be their most vulnerable clients. However, this very vulnerability and the centrality of the rights at issue makes it essential to ensure that service providers have the information, skills and resources to effectively fulfil their responsibilities.
The problem of the “implementation gap” was identified as a very significant issue during the preliminary consultation. One substantial element of this gap arises from insufficient or incorrect application of the law by these professionals and organizations, a problem which has roots in misunderstandings or lack of awareness of the law. Service providers may find the law related to legal capacity and decision-making complex and confusing, or may lack sufficient training or supports to properly apply it.
1. Needs for Education and Information
Both Frameworks emphasize the importance of education and training for those charged with implementing law in ensuring that processes under the law respect the principles. Education and training should be ongoing, and should address the substance of the law (including the application of the Human Rights Code, the Charter and the Accessibility for Ontarians with Disabilities Act), and anti-ageist and anti-ableist education, including common stereotypes and negative attitudes, systemic barriers, and access and accommodation issues.
As was extensively discussed in the Framework projects, both older adults and persons with disabilities have historically been subjected to paternalistic attitudes and limiting assumptions about their capabilities, including their ability to make decisions for themselves. Well-intentioned service providers may restrict the rights of persons with disabilities and older adults with the purpose of protecting them from harm or discomfort, and this may overlap with assumptions about the capacity of older persons or persons with certain disabilities. Bach and Kerzner have commented that,
Service provision in the disability and older adult sectors is often based on charity and protection models, and an assumption that because people need supports and care, other should make decisions on their behalf. Often service providers also require that they are provided decision-making authority on behalf of those they are supporting so they can more efficiently manage the range of individual decisions related to care, medications, activities, etc.
The Advocacy Centre for the Elderly (ACE) has similarly noted that,
A simple example of ageism is the automatic assumption that older people are incapable of making a decision due to their age. Although there is a presumption in the Health Care Consent Act that a person is capable, the onus is often on the older person to prove their capacity. Another common example of ageism is the attitude that seniors must be ‘protected’ by restricting their activities because it is in their ‘best interests’.
For example, some long-term care homes have policies preventing all residents, whether legally capable or incapable, of leaving the home without an escort; in other cases, the long-term care home may improperly defer to family members to prevent capable persons from leaving or may prevent capable residents from leaving because they are concerned that they are likely to fall, drink alcohol or otherwise come to harm.
These kinds of attitudes may significantly affect how service providers implement the law. Those adopting a paternalistic or “best interests” approach to older persons and persons with disability may, whether consciously or unconsciously, fail to respect the central tenets of the legislation, such as the presumption of capacity, the understanding of capacity as decision-specific, and the importance of procedural rights in protecting individual autonomy.
As has been noted elsewhere throughout this Paper, because of the diversity of Ontario’s population, it is particularly important that those implementing the law in this area, including those who assess capacity (across multiple systems), understand how multiple forms of diversity may intersect with disability or older age, how they may impact on access to services and supports, and how they may affect the expression of decision-making abilities.
Lack of knowledge or understanding of the law
During the preliminary consultations, the LCO heard widespread concerns about gaps in the knowledge or understanding of those who are responsible for implementing the law. For example, the LCO has heard from many individuals that service providers are commonly confused as to what constitutes a proper authorization of an SDM, or the scope of powers afforded by guardianship or a POA. SDMs are often misunderstood as having plenary powers over individuals: service providers may inappropriately allow a person holding a power of attorney for property to make decisions regarding personal care, for example.
In some settings, misunderstandings of the law may be extensive and systemic. A research paper commission by the LCO from ACE and Dykeman, Dewhirst O’Brien LLP (DDO) (“the ACE/DDO Paper”) highlights extensive confusion among health care service providers about the status of various “advance care planning” documents (referred to by some as “advance directives”), such as “Do Not Resuscitate” (DNR) orders, “levels of care” forms, and other health care documentation of patient wishes. Providers frequently misunderstand such documents as themselves providing valid consent to treatment and as “speaking” directly to health care practitioners, rather than as statements of capable wishes that may guide the SDM should the patient become legally incapable. That is, these documents may be treated as authorizations when they do not have such a status in Ontario law. These misunderstandings may be crystallized in forms, policies and procedures which guide the work of health care practitioners on a day-to-day basis.
Similarly, in research on access to justice in congregate settings, ACE found, “The failure of health practitioners to obtain informed consent for medical treatment was rampant in both retirement and long-term care homes”. Furthermore, lack of knowledge combined with pervasive “paternalistic and infantilising attitudes” on the part of staff may lead to systemic violations of the rights of residents of long-term care homes.
Access to information about the law or support in its application may be challenging for professionals for a variety of reasons. Some examples are listed below.
- Insufficient institutional supports: In some cases, the professionals who are responsible for implementing or overseeing the implementation of the law have limited access to information and advice due to institutional constraints. For example, in some long-term care homes, there may be only one registered nurse for the facility: he or she is dealing with quite complex requirements under the Long Term Care Homes Act (LTCHA) and the HCCA, and may not have colleagues to provide mentoring or to ask for advice.
- Irregular exposure to the area: Some professionals may work in the area only rarely, and so may not develop adequate expertise to fully appreciate the ramifications of their work. For example, during the LCO’s work on the Framework for the Law as It Affects Older Adults, the LCO repeatedly heard concerns about lawyers inappropriately assuming legal incapacity on the part of older adults and improperly consulting with the older adult’s family or friends rather than their actual client, or of lawyers providing incorrect advice about this area of the law. Similar issues have been raised with respect to legal services related to mental health issues outside of large urban areas: because the cases are few, lawyers may not have the opportunity to develop an in-depth understanding of this area of the law.
- Law at the front-lines: As well, in some institutions, it is front-line workers who will be directly encountering issues related to legal capacity and decision-making, and who will be assigned the responsibility for identifying potential issues and applying correct procedures. It is also at the front-lines where pressures related to limited resources, competing needs and the tension between standardization and responsiveness to individual needs will be most acute. High turnover may exacerbate difficulties related to attitudinal barriers and lack of understanding of the law: service providers may find it difficult to keep staff training up-to-date and there is less opportunity for staff to develop skill and confidence in dealing with these issues.
2. Current Sources of Information, Education and Training
Those responsible for implementing the statutory framework may have access to information, education and training from a variety of sources. These are briefly described below.
Many of the service providers or professionals charged with implementing or supporting the implementation of the law must meet certain educational requirements prior to entering their professionals. This is true for social workers, health professionals and lawyers, for example. Educational institutions may provide information related to this area of the law, either as mandatory or voluntary course material. Lawyers, for example, may encounter information about issues related to legal capacity, decision-making and guardianship through a variety of coursework, including courses on mental health law, elder law, health law, disability law, or trusts and estates law. Information about this area is not required of law school graduates, however, and many lawyers will not encounter this area until later in their careers or at all.
Professional Regulatory Bodies
Professional regulatory colleges play an important role in providing information and education to their members across a wide range of subject areas. Professional regulatory bodies, such as the regulated health colleges, may require practitioners to demonstrate specific knowledge or skills in order to become accredited, may develop policies or guidelines that are binding on their members and may be the subject of complaints where there is non-compliance, and may provide ongoing education and training opportunities.
For example, health practitioners are required to comply with the policies of their own regulatory health colleges, which in a number of cases have issued policies, codes of practice, or guidelines relevant to legal capacity, decision-making and guardianship. The College of Nurses of Ontario, for example, has issued a Practice Guideline on consent, while the College of Physicians and Surgeons has a policy statement on consent to medical treatment and the College of Occupational Therapists of Ontario has issued a guide to the legislation for its members.
The regulated health colleges may also provide education and training opportunities for health practitioners, as part of their mandate to “develop, establish and maintain standards of knowledge and skill and programs to promote continuing evaluation, competence and improvement among the members”.
For professionals working in large institutions, such as hospitals, long-term care homes, Community Care Access Centres, or large social service agencies, their implementation of the law will be significantly shaped by their employer. Institutions may develop internal policies dictating how the law is to be interpreted and applied, create internal training programs or resources, or provide access to information and advice through internal legal or ethics departments.
For example, health practitioners working in larger institutions often have issues related to legal capacity and decision-making structured through the use of institutional forms and procedures. These are intended to standardize process, simplify complex issues into manageable formats, and ensure compliance with law and policy. Unfortunately, in some cases these forms and procedures may themselves fail to comply with the law. A review of a sample of materials from hospitals and long-term care homes by ACE and DDO revealed that many of these documents incorporated significant misunderstandings of the law: for example, several documents incorrectly suggested that SDMs could engage in advance care planning on behalf of individuals lacking legal capacity, and several institutions were using materials from other jurisdictions without adaptations to ensure compliance with Ontario law. This is of particular concern because focus groups with health practitioners indicated that “health care organizations’ forms drive practice”.
The ACE/DDO Paper provides extensive illustrations of this issue in the context of the provision of healthcare. The Paper reviews a number of advance care planning and consent forms and systems, as well as several institutional policies and practices, and concludes that these documents not uncommonly contain errors with respect to the law. For example, the paper notes that “[ACE has] frequently come across long-term care home documents that provide that a resident must consent to any treatment proposed by a health practitioner at the long-term care home … Consents to treatment given pursuant to such blanket agreements are plainly unlawful and ineffective.”[emphasis added] As another example, seven of the thirteen sets of institutional policies and forms reviewed as part of this research project incorrectly either stated or appeared to assume that substitute decision-makers could express wishes, values and beliefs on behalf of incapable patients. The ACE/DDO Paper states that,
What these examples of policies and forms show is that health care organizations appear to have different understandings of how the requirement to obtain informed consent to treatment relates to advance care planning, advance directives and other level of care forms. In many of the advance care planning forms that we reviewed, it is very difficult to determine if the form was meant to record patient wishes, new wishes created by the SDM, informed consent to treatment, or some combination…. While imperfect and generic forms would not be a concern if health practitioners consistently and correctly understood and applied the law, as we set out below in our discussion of our health care practitioner focus groups, the use of these forms appears to cause confusion.
Government Mandated Training and Education
The current statutory regime requires those carrying out the various forms of formal capacity assessments to be members of specified professions, and thereby to have completed the requisite education and met accreditation standards. Beyond that, specific training is not mandated, with the notable exception of Capacity Assessors who are designated under the SDA, who must have completed the requisite training and requirements to maintain qualification. This includes a qualifying course approved by the Attorney General that includes instruction in the SDA, best practices for completing forms and reports under the Act, standards for the performance of capacity assessments, and procedures for determining if a person needs decisions made on their behalf. They must be evaluated on their mastery of the training. An approved capacity assessor must also complete continuing education courses every two years. In addition to the continuing education course, an approved capacity assessor must provide the PGT with copies of two recent assessments (with personal information removed) every two years and must perform a minimum of five assessments in every two-year period in order to maintain their approved status.
Professional associations may also provide materials or continuing education opportunities. For example, the Canadian Medical Association’s Code of Ethics includes provisions related to respecting the right to accept or reject treatment, ascertaining wishes and provision of information to patients. The Ontario Bar Association’s Trusts and Estates Section regularly provides Continuing Professional Development related to powers of attorney, as does the Health Law Section with respect to capacity and consent.
A wide variety of organizations and professionals also provide information, resources and training aimed at supporting effective and appropriate implementation of this area of the law, including
Government bodies: The Consent and Capacity Board (CCB) and the Public Guardian and Trustee (PGT) both provide informational materials and conduct presentations aimed at the professionals and institutions with which they interact.
Advocacy and consumer organizations: Organizations that work with and advocate for persons directly affected may develop education and training for professionals, as part of initiatives aimed at closing the implementation gap and promoting the rights of the individuals that they serve. For example, ARCH Disability Law Centre, ACE and Elder Abuse Ontario regularly engage in public education for professionals and institutional stakeholders.
Academics and experts: academics and experts may use their skills to develop tools for “knowledge translation”, aiming to turn complex issues of law and professional practice into practical tools or resources. For example, the National Initiative for the Care of the Elderly (NICE) has as its goals to help close the gap between evidence-based research and actual practice; improve the training of existing practitioners, geriatric educational curricula, and interest new students in specializing in geriatric care; and effect positive policy changes for the care of older adults. To this end, interdisciplinary teams review evidenced-based literature to develop and disseminate user-friendly, interdisciplinary, team-based tools, such as “Understanding the Legal Dimensions of Financial Literacy: Power of Attorney” and the “Tool on Capacity and Consent”.
All told, considerable effort has been invested into assisting professionals and institutions to understand the law in this area and their obligations under it. Despite these efforts, it is generally believed that much more is needed. As the executive director of one organization that puts significant resources into education and training in this area commented, the need in this area appears to be almost inexhaustible: the law is complex, the issues are difficult and personnel regularly change over.
As well, there is no central repository of information on this area of the law. For those looking for information or resources, there is no one obvious place to look. While many organizations identify information gaps based on their own experiences and attempt to fill them, there is no central mechanism for identifying needs on an ongoing basis.
Further, while many organizations provide information and education, no organization has a clear and specific mandate to do so. For example, while the regulatory health colleges are required under section 3 of the Regulated Health Professions Act to “develop, establish and maintain standards of knowledge and skill and programs to promote continuing evaluation, competence and improvement among the members”, there are no specific requirements to do so with respect to consent and capacity. While the PGT provides public information and education as resources permit, it is not specifically tasked by the legislation with doing so.
Finally, as the ACE/DDO Paper highlights, where resources exist, they may sometimes be misleading or inaccurate. ACE and DDO reviewed a number of resources available to health practitioners in understanding and applying the law related to legal capacity, consent and advance care planning, including policies and publications produced by regulatory colleges, and advance care planning forms and systems prepared by a variety of organizations, such as Cancer Care Ontario, the Resident Assessment Instrument (RAI) and others. While these documents had valuable components, they frequently contained misleading or incorrect information, such as assuming that a doctor could take direction from a planning document as opposed to a person or interpret a patient’s wishes, suggesting that wishes must be written, or suggesting that health practitioners in long-term care homes are required to obtain written advance directives from patients. Some difficulties arise because materials are prepared on a national level, and so do not adequately deal with Ontario law. It is important, therefore, that where resources are developed, they be legally accurate for the Ontario context: otherwise, they may actually further exacerbate the implementation gap, rather than reducing it.
- QUESTION FOR CONSIDERATION: What reforms to law, policy or practice could help to ensure that professionals carrying out core responsibilities under the SDA, MHA and HCCA have the skills and expertise required to perform their roles, and that this skill and expertise is kept current?
F. Questions for Consideration
- What are the priorities for reforms to law, policy or practice to ensure that individuals who encounter the capacity, decision-making and guardianship system have meaningful access to the information that they need to preserve their autonomy to the greatest extent possible and to understand and enforce their rights?
- What are the priorities for reforms to law, policy or practice to ensure that persons appointed as substitute decision-makers adequately understand their roles and responsibilities, and have the skills necessary to effectively perform their often challenging roles?
- What are the priorities for reforms to law, policy or practice to ensure that service providers adequately understand their roles and responsibilities under the law, have a meaningful understanding of the circumstances and experiences of the individuals affected by these laws, and have the skills necessary to effectively interpret and apply the law?
- What reforms to law, policy or practice could help to ensure that professionals carrying out core responsibilities under the SDA, MHA and HCCA have the skills and expertise required to perform their roles, and that this skill and expertise is kept current?
- How could information, education and training related to legal capacity, decision-making and guardianship be better coordinated and made more accessible to the general public and all those seeking it?
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