A. Preventing, Identifying and Addressing Abuse and Misuse of Powers by Substitutes
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART FOUR CH I
Substitute decision-makers, whether appointed through POAs, guardianship, or the hierarchical list in the HCCA, have significant statutory obligations, although the exact nature of these obligations differs depending on the decision-making domain (e.g., property, personal care, treatment decisions). For example, substitute decision-makers for property management are fiduciaries, and must carry out their duties diligently, in good faith, with honesty and integrity, for the benefit of the individual. The legislation sets out standards for decisions, as well as procedural duties that include explaining the substitute’s powers and duties to the individual; encouraging the individual’s participation in decision-making; and fostering regular personal contact between the individual and her or his supportive family members and friends. As well, guardians and persons acting under a power of attorney must maintain records of their decisions.
The LCO has heard widespread concerns that in practice, substitute decision-makers often have a poor understanding of their roles and responsibilities, so that the practice of substitute decision-making may fall far short of the intent of the legislation. As well, some substitutes may use the powers allocated to them under the law to abuse, exploit or neglect the individual whom they are supposed to serve in good faith.
Problems of misuse and abuse may be the result of a number of short-comings in the legislation itself, as well as in policy and practice.
- Education and information: The legislation does not provide any formal mechanisms for ensuring that substitutes are aware of the statutory requirements and understand their roles and responsibilities. While substitute decision-makers are obliged to explain their powers and duties to the individual, there are no mechanisms for ensuring this takes place.
- Individual monitoring: while guardians and persons acting under powers of attorney must keep records of their decisions, there is no proactive mechanism for regularly reviewing these accounts, and identifying and addressing potential issues.
- Investigation of abuse: The PGT has an obligation to investigate allegations that an individual is lacking legal capacity and that serious adverse effects are occurring as a result. Such investigations may result in the appointment of the PGT as a temporary guardian. While stakeholders support these investigative powers, concerns have been raised that greater resources and scope for investigation may be required for these powers to have their intended effect.
- Seeking redress: Available mechanisms for challenging the exercise of powers by a substitute decision-maker and holding substitutes accountable are not practically accessible for many individuals, due to the costs of taking action, the confusing nature of rights enforcement mechanisms, and power imbalances between individuals and their substitutes.
- Remedies: Even successful proceedings regarding abuse by substitute decision-makers may be able to provide only limited remedies to the victims. For example, once an individual’s assets have been misappropriated and spent, there is little that can be done to restore the victim to their original financial status.
In developing mechanisms for accountability for substitutes, it must be kept in mind that this role is most often undertaken by family members and friends, who do not necessarily have access to many resources or supports in carrying out this role and are not compensated for it. A careful balance is required to ensure that measures to prevent, identify and address abuse and misuse do not make this role unnecessarily difficult for those who are acting in good faith and attempting to comply with the law. Options for reform include mandatory information and education programs for substitute decision-makers; regular reporting requirements for guardians; proactive “visitor” or auditing programs; the provision of supervisory powers to the PGT or some type of monitoring office; expanded complaint and investigation systems; or greater restrictions on financial transactions by substitute decision-makers.
Please share your thoughts on any or all of these questions:
1. Are there ways in which laws, policies or practices for addressing abuse through legal capacity, decision-making and guardianship laws could be better coordinated with general provisions for addressing abuse of those who tend to fall within this area of the law?
2. Are there specific information, education or training initiatives that could be integrated into law, policy or practice to ensure that individuals and their substitute decision-makers better understand their rights, roles and responsibilities, and if so, how might these be implemented?
3. Are there mechanisms that could be added to law, policy or practice to improve monitoring and oversight of substitutes, such as enhanced duties to report or account, “visitor” programs for persons under substitute decision-making, or other types of supervisory powers? If so, which mechanisms would be most desirable and how might these be practically implemented?
4. Are there new mechanisms for complaints or enhancements to the PGT’s existing investigatory powers that would be effective and appropriate for addressing concerns regarding abuse or misuse of the powers of substitute decision-makers? If so, which mechanisms would be most desirable and how might these be practically implemented?
5. Are there mechanisms that could be put in place to reduce loss or damage to individuals through abuse of substitute powers, such as limits on conflict transactions, provision of authority to financial institutions to freeze accounts where abuse is suspected, or expanded requirements to post bonds or security? If so, which mechanisms would be most desirable, and how might they be practically implemented?
6. Are there other reforms to law, policy or practice that should be considered to prevent, identify and address abuse or misuse of the powers of substitute decision-makers?
B. Supports to Accessing the Law: Navigation, Problem-Solving and Voice
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART FOUR CH III
As was explored at length in the Framework projects, persons with disabilities and older persons often experience barriers in accessing their rights under the law. Challenges include attitudinal barriers 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; 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 light of the broader context in which older persons and persons with disabilities are more likely to live in low-income and experience social isolation and lack of opportunities for participation.
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 legal capacity and decision-making laws. This ambitious scheme was repealed prior to any extensive implementation, as being too costly and bureaucratic, and potential intruding on families and private rights.
Currently, there are a number of formal, professional mechanisms for providing supports and advocacy for those directly affected by this area of the law. This includes the designated rights advisers under the MHA and the Psychiatric Patient Advocate Office; “section 3 counsel” who may be appointed to represent persons whose legal capacity is at issue in a proceeding under the SDA and who does not have legal representation; legal aid services, particularly those provided to individuals in proceedings before the CCB; and specialty legal clinics like the Advocacy Centre for the Elderly and ARCH Disability Law Centre.
While the current system is not without advocacy and support mechanisms, it is also true to say that 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. The services and supports that exist are fragmented and limited in scope. Two of the major concerns identified during the LCO’s 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.
A review of some of the legal capacity decision-making systems of other jurisdictions, and of supports and advocacy provided to other vulnerable populations in Ontario reveals a wide array of approaches to the provision of supports. These include holistic, independent, institutional public advocacy programs, such as Ontario’s Provincial Advocate for Children and Youth; embedded institutional supports such as the Independent Mental Capacity Advocates that England and Wales employ to assist individuals who lack capacity to make important decisions about serious medical treatment or transition to long-term care and who do not have family or friends to assist them; or agency-provided supports, such as Ontario’s Adult Protective Services Workers.
Please share your thoughts on any or all of these questions:
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?
C. Information, Education and Training
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART FOUR CH IV
The SDA and HCCA are complicated statutes, reflecting the diversity both of the contexts in which they operate and the individuals that they affect, as well as the complexity of the issues they address. The statutes take a nuanced approach to “capacity” and attempt to balance competing needs, such as accessibility with procedural protections, and promotion of autonomy with protection of fundamental security. The result is a system that can be difficult to understand, not only for individuals who are often encountering it in moments of significant stress and difficulty, but for professionals who are expected to apply the law effectively.
The SDA and HCCA currently include some requirements and supports for information, education and training. Capacity assessors under the SDA must meet education and training requirements prior to designation, as well as fulfilling ongoing training requirements. Persons who are identified as legally incapable through a capacity assessment or evaluation may be entitled to rights advice or rights information. Guardians and persons acting under POAs have a duty to explain their powers and responsibilities to the person they are representing. In addition, many organizations have created informational materials about the requirements of the law, and are providing ongoing information and education sessions for professionals, institutions, advocacy organizations and individuals.
Throughout the LCO’s preliminary consultations and research, one of the most frequent concerns raised has been the pervasive lack of understanding of the legislation, including its fundamental principles, the roles and responsibilities of all parties, and the processes for assessing capacity, appointing substitute decision-makers, and seeking redress. This lack of understanding extends to individuals directly affected, families and friends acting as substitute decision-makers, service providers who must apply or implement the legislation, and professionals who regularly interact with it. This misunderstanding and lack of awareness of the law has widespread and significant consequences, particularly given the impact of these laws on fundamental rights.
In considering the provision of information to individuals directly affected and their families, it must be kept in mind that they are often encountering the law at times of crisis or severe stress. As well, persons with disabilities and older adults face a range of barriers to accessing and understanding information arising out of their socio-economic status, living arrangements, the particular nature of their disabilities, or the effect of barriers and discrimination on their life courses.
During the LCO’s preliminary consultations, service providers, community agencies and advocacy organizations that regularly interact with individuals directly affected by these laws indicated that they regularly find themselves attempting to provide informational or navigational assistance to these individuals, or confronted with concerns regarding potential abuse. They spoke about the challenges that they face in addressing these needs, and urged the LCO to identify ways to improve their ability access expertise and advice on the complex issues that arise in their work.
Professionals and service providers responsible for implementing the legislation may face their own barriers to information, including competing demands for their attention, institutional resource shortages, and shortfalls in the available training or resource materials. Lack of adequate understanding of the law and its underlying principles among this group is a key source of the gap in this area between the legislation and its implementation that has raised concerns for many stakeholders.
Please share your thoughts on any or all of these questions:
1. 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?
2. 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?
3. 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?
4. 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?
5. 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?
D. Dispute Resolution and Rights Enforcement
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART FOUR, CH II
Mechanisms for raising complaints and resolving disputes are extremely important to the effectiveness of any law. Without effective means to enforce the rights and responsibilities set out in the statutes and to resolve disputes between those falling within the scope of the law, the law may amount to little more than a statement of aspirations. The fundamental nature of the rights at stake in legal capacity, decision-making and guardianship law makes these mechanisms even more important.
Ontario’s Consent and Capacity Board (CCB) is a specialized, expert, independent administrative tribunal. It conducts hearings under the HCCA regarding findings of incapacity, the appointment or termination of representatives to make decisions, departure from “prior capable wishes”, and review of compliance of substitute decision-makers with the requirements of the statute. It also has jurisdiction to review findings of incapacity to manage property under the SDA and the MHA. Members of the CCB are made up of lawyers, psychiatrists and members of the public. The CCB is mandated to make decisions expeditiously: hearings must commence with seven days of an application, and decisions must be issued within one day of the conclusion of a hearing. Hearings are conducted across the province and in a variety of venues, including hospitals, long-term care homes and private residences. Individuals making application to the CCB have access to special supports such as rights advice or rights information, and representation through legal aid. Some issues related to the HCCA may also be dealt with in other venues. For example, complaints related to capacity assessments or evaluations may be directed to the regulated health college to which the assessor or evaluator belongs.
Most issues arising under the SDA, including disputes regarding the appointment or termination of a guardian, applications for a guardian or person holding a power of attorney to pass accounts, or requests for directions on matters related to a guardianship or a power of attorney, proceed for hearing to the Superior Court of Justice. The Court is the key venue for dispute resolution, through its powers related to appointment and termination of guardianships, and to provide directions. Through these powers, it can also act to enforce the statutory rights of individuals, for example by removing a guardian that has acted inappropriately, or narrowing the scope of a guardian’s powers. The provisions of the SDA give the Court broad discretion to address concerns. For example, its powers to “give directions” apply to “any question arising in connection with a guardianship or power of attorney”. Upon an application for the passing of accounts, the Court has wide remedial powers. It can, for example, order a reassessment of the individual`s capacity, suspend or terminate a power of attorney or guardianship, direct the PGT to bring an application for guardianship, or appoint the PGT or another person to act as guardian pending the determination of the application.
Some issues related to the SDA may also be dealt with in other venues. For example, abuse via power of attorney may in some cases be an appropriate matter for the criminal justice system.
The preliminary consultations identified rights enforcement and dispute resolution under the SDA as among the most pressing areas for substantial reform in this area of the law. It is important to keep in mind that persons with disabilities and older persons may face a range of barriers in asserting their rights. Their disabilities may make it difficult for them to access and evaluate information in the forms in which it is usually presented. They may be dependent on the institution or individual against whom they wish to raise a complaint. They may not have the financial, physical or psychological resources for lengthy or expensive proceedings. Ontario’s capacity, decision-making and guardianship laws and processes are complex, and so individuals may find them hard to navigate.
The use of judicial proceedings for addressing matters under the SDA reflects the gravity of the rights at issue. However, it is also true that court processes tend to be expensive, complicated, intimidating, lengthy and adversarial. They may be an impractical option for many individuals. As well, professionals who work in this area have noted the tendency for disputes to become entangled in dysfunctional family dynamics, which the current processes under the SDA are ill-suited to resolve. Some jurisdictions have created specialized forums for resolving disputes and issues related to legal capacity, decision-making and guardianship. England and Wales, for example, have created a “Court of Protection” with specialized procedures and access tailored supports. The Australian state of Victoria’s Civil and Administrative Tribunal has a special “list” for capacity and guardianship matters, providing expert, rapid, relatively informal and low-cost adjudication in this area.
There may be ways of improving current disputes resolution and rights enforcement mechanisms by simplifying procedures, or providing additional supports or services. The province of Alberta, for example, has created a system of Review Officers who review applications for guardians or co-decision-makers, meet with the affected individuals and prepare a written report for the Court. It has also been suggested that as many of the disputes currently arising under the SDA have their roots in complex social and family dynamics, there may benefits in exploring ways to better link litigants and potential litigants to mediation, information and social services.
During the LCO’s preliminary consultations, stakeholders emphasized the value of the independent, expert, flexible, relatively non-adversarial and expeditious dispute resolution provided by the CCB.
Concerns have been raised both that the CCB is too adversarial and thereby may undermine the therapeutic relationship (from the physician perspective) and that it is insufficiently adversarial and may pay insufficient attention to procedural protections (from the applicant perspective). Some suggested that while the CCB’s tight timelines do constrain opportunities for mediation, there may be creative options for incorporating dispute resolution services into the mandate of the CCB, or for more extensive use of the techniques of active adjudication, in order to better promote responsive resolutions and to respect the particular nature of the rights and issues at stake in this forum.
Concerns have been raised regarding appeals from CCB determinations of incapacity. For a variety of reasons, appeals may languish, and where determinations of incapacity are paired with involuntary admission to a psychiatric facility, individuals with mental health disabilities may find themselves “warehoused” for lengthy stretches.
Please share your thoughts on any or all of these questions:
1. What goals should be the priorities in considering reforms to Ontario’s dispute resolution and rights enforcement mechanisms for this area of the law?
2. Are there practical reforms to law, policy or practice that would promote more timely resolution of appeals from decisions of the Consent and Capacity Board?
3. Are there practical and effective means of further incorporating alternative dispute resolution mechanisms into the processes of the Consent and Capacity Board that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?
4. Are there practical and effective means of amending the hearing processes of the Consent and Capacity Board, such as for example incorporating active adjudication, that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?
5. Are there additional powers for the court or specialized supports or services for persons attempting to access their rights or resolve disputes under the Substitute Decisions Act that would improve the accessibility or effectiveness of current dispute resolution processes in this area? If so, what reforms would be most appropriate and how could they best be implemented?
6. For dispute resolution and rights enforcement under the Substitute Decisions Act, are there lessons to be learned from tribunal systems in other jurisdictions?
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