A. The Law Commission of Ontario’s Project on Legal Capacity, Decision-Making and Guardianship
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, CH I
The Law Commission of Ontario (LCO) has undertaken a project to examine and recommend reforms to Ontario’s legal capacity, decision-making and guardianship laws, and in particular the Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA).
In doing so, the LCO will apply the principles and considerations identified in its Framework for the Law as It Affects Older Adults and Framework for the Law as it Affects Persons with Disabilities. These are available on the LCO’s website at http://www.lco-cdo.org/en/older-adults-final-report-framework and http://www.lco-cdo.org/en/disabilities-final-report.
This Summary of Consultation Issues is part of the LCO’s broad public consultations aimed at identifying reforms to this area of the law that will advance equality for older adults and persons with disabilities, and that will be practical and implementable. It is important for the LCO to hear from all those affected by this area of the law, including experts, government, service providers, advocates, individuals and families. This Summary of Consultation Issues is accompanied by a thorough Discussion Paper, which reviews the current state of the law, examines issues and identifies some options for reform. Those seeking more information about the issues and options raised in this Summary of Consultation Issues are encouraged to refer to that document. Through these consultations, the LCO will develop an Interim Report containing draft recommendations for changes to the law, policy and practice in this area. This will be circulated for comment prior to the development of a Final Report.
This Summary of Consultation Issues and the Discussion Paper were developed through extensive preliminary consultations and research. Through this process, the LCO identified six key issues:
- “Legal capacity”: This concept is fundamental to this area of the law, and the project will consider how the standard for legal capacity should be defined and assessed.
- Alternatives to substitute decision-making: Currently, where individuals are found to lack legal capacity to make a particular type of decision, those decisions are made by “substitute decision-makers”. The project will consider whether other approaches, such as co-decision-making or supported-decision-making should be formally included in legislation, and if so, what approaches should be adopted, and how they should be structured in the legislation.
- Processes for appointment and termination of substitute decision-makers: The project will consider whether the processes through which substitute decision-makers (or potentially supporters or co-decision-makers) are appointed or terminated can be made more efficient, accessible, transparent or accountable.
- Roles and responsibilities of those acting for persons who require assistance with decision-making: The project will re-examine the roles and responsibilities of those who act for those who require assistance with decision-making, such as guardians and those acting under powers of attorney, as well as the scope of individuals or organizations who should be able to take on these roles and responsibilities.
- Addressing abuse: The project will consider improvements in law, policy and practice to prevent, identify and address abuse or inappropriate activity by substitute decision-makers, or potentially supporters or co-decision-makers (however appointed), as well as misuse of the law by third-party service providers.
- Dispute resolution and rights enforcement: The project will examine potential improvements to dispute resolution and rights enforcement for this area of the law.
Please share your thoughts on any or all of these questions:
1. Within the identified scope of this Project, are there additional issues or themes that should be considered?
2. What constraints and opportunities should the LCO be aware of to ensure that law reform proposals in this area will be practical and implementable?
B. The Context for Reform of Ontario’s Legal Capacity, Decision-Making and Guardianship Laws
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART ONE, CH I
The SDA and HCCA are the result of extensive and thorough law reform efforts in the late 1980s and early 1990s. These reforms marked a profound shift in this area of the law. While many of the fundamental underpinnings of the current law remain sound, there are concerns that implementation of the SDA and HCCA has been flawed in some key areas, so that the law has never achieved its full intended effect. As well, there have been some significant changes since the reforms, including demographic shifts and a deeper understanding of the rights of persons with disabilities and older adults. This is therefore an appropriate time to re-evaluate the SDA and HCCA.
The SDA and HCCA touch on many areas of life, including finances and the management of property, decisions about where to live, treatment decisions and others. A very wide range of individuals are affected or potentially affected by the SDA and HCCA, including older persons who develop dementia or other cognitive disabilities as they age, persons with mental health disabilities, those living with acquired brain injuries, persons with intellectual or developmental disabilities, and those for whom acute illness temporarily affects their ability to make decisions. Thus there is considerable diversity in how individuals experience this area of the law, and in the needs and aspirations that they bring to it. A key challenge for the law is to meaningfully address this diversity of needs and circumstances.
The SDA and HCCA have been seen as performing a number of important roles, including:
- Facilitating, where necessary, decision-making for persons who have been determined to lack legal capacity;
- Preventing undue interference in the lives and decisions of persons who have legal capacity;
- Recognizing and promoting the role of supportive family and friends in the lives of persons who have been determined to lack legal capacity, as well as providing last resort decision-making assistance for those who do not have supportive family or friends;
- Supporting individuals in planning for the possibility that they may need assistance with decision-making at some point in the future;
- Providing safeguards against abuse of persons who require assistance with decision-making;
- Providing rules and principles for substitute decision-making that are clear and that promote both the autonomy and the basic security of persons who have been determined to lack legal capacity;
- Ensuring basic procedural protections for persons whose legal capacity is in question or has been determined to be lacking.
It will be important to this project to consider, in light of current needs and approaches, what the core purpose or purposes of this area of the law should be.
Commentators have identified a number of principles that underlie or should underlie the purposes of the law, including the promotion of autonomy and independence; respect for dignity and worth; recognition of a right to basic safety and security; and promotion of participation and inclusion in the broader community. These are in keeping with the principles identified in the LCO’s Framework projects. In developing and interpreting this area of the law, consideration should be given to such fundamental legal documents as the Charter of Rights and Freedoms, the Convention on the Rights of Persons with Disabilities (CRPD), the Ontario Human Rights Code, and the Accessibility for Ontarians with Disabilities Act (AODA).
The SDA and HCCA must be understood as part of a larger web of laws affecting persons with disabilities and older adults, including the Mental Health Act (MHA), income support laws, laws relating to social supports, privacy laws and others. There are complex relationships between these laws, and some have suggested that these could be better coordinated.
Please share your thoughts on any or all of these questions:
1. What should be the primary purpose or purposes of this area of the law?
2. What do the principles and commitments found in the CRPD, Charter, Human Rights Code and AODA tell us about the key elements of reforms to Ontario’s legal capacity, decision-making and guardianship laws? How might they affect the interpretation and application of these laws?
3. Are there specific reforms to the SDA or HCCA that would support better coordination with other laws, such as the Mental Health Act, privacy laws, income or social support laws, or others?
4. How does the experience of this area of the law differ depending on gender, sexual orientation, gender identity, racialization, immigration status, Aboriginal identity, family or marital status, place of residence, geographic location, language, various forms of disability, or other forms of diversity? What reforms to the law in this area are needed to ensure that it takes into account the characteristics of affected older persons and persons with disabilities?
5. What do the Framework principles tell us about designing effective reform for this area of the law?
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