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 S