A. Ensuring an Effective System: Coordination, System Monitoring and Transparency
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART FIVE CH I
Any law reform may in practice fall short of its intended goals. There may be a flaw in the design of the law: it may be based on a misunderstanding of the issues, or fail to take into account the way in which it may affect some groups, for example. Circumstances or understandings may change, so that a law which was at the time of its inception a significant step forward, may need to be revisited in order to make further progress. It is common for problems to result from flaws in the implementation of the law, arising from shortfalls in policies and practices designed to put the law into effect, or from resource shortages or institutional limitations. For these reasons, when new laws are developed and put into effect, it is important to include mechanisms for monitoring whether they are achieving their intended purposes, and whether they continue to be meaningful and effective.
It may be difficult to evaluate the effectiveness of a law, policy or practice unless mechanisms for evaluation are built into its design from the outset. For example, many have raised concerns about abuse of older adults through POAs. However, since these are purely private arrangements with no tracking or monitoring systems attached, it is impossible to know how many powers of attorney are in effect in Ontario today, let alone how common it is for them to be misused or used to facilitate abuse or exploitation. There are similar issues in many areas of Ontario’s legal capacity, decision-making and guardianship laws.
Means of supporting ongoing evaluation of a law can be incorporated in a variety of ways. These include mechanisms for ongoing data collection or feedback from affected groups, tasking an institutional with responsibility for systemic monitoring or advocacy, public reporting requirements, or regular legislative reviews.
A related concern is the lack of a central, coordinating function or institution for the legal capacity, decision-making and guardianship system as a whole. Education activities, for example, are undertaken voluntarily by many individuals and organizations, but no institution has a statutory mandate to undertake or coordinate these activities. The lack of a coordinating function makes it difficult to determine what aspects of the overall system are working well or poorly, and to address issues which may be identified.
Accountability requirements are one aspect of monitoring mechanisms. For example, both the PGT and the CCB release annual public reports on their programs and activities. Other aspects may include systemic monitoring and advocacy activities, such as regular review of data, stakeholder feedback or complaints.
Please share your thoughts on any or all of these questions:
1. Are there reforms to law, policy or practice which would increase transparency and accountability for the legal capacity, decision-making and guardianship system as a whole?
2. Are there reforms to law, policy or practice, including institutional roles or responsibilities, which would improve the coordination and effectiveness of the system as a whole?
3. Are there reforms to law, policy or practice which would improve the ability to identify and address problems with the system as a whole?
4. What steps can be taken to support ongoing monitoring and evaluation of any reforms to the law in this area, and to ensure that changes to law, policy and practice have the effect intended?
B. Participating in the Law Reform Process: The LCO’s Public Consultations
FOR MORE INFORMATION ON THIS TOPIC, SEE THE LCO DISCUSSION PAPER, PART FIVE, CH II
The law of legal capacity, decision-making and guardianship directly affects a large and growing number of Ontarians. Most Ontarians will at some point encounter this area of the law, whether in a professional role or through their own illness or disability, or that of a loved one. The impact of these laws on the rights and basic quality of life of those directly affected, and on the lives of their families and friends, is profound. For law reform to be effective, it is important to hear from those affected, to understand both how the law currently works in practice and how it can be improved to be more meaningful, accessible, just and effective.
The LCO will be conducting public consultations on the issues raised in this document from June 25, 2014 until Friday, October 17, 2014. There are a number of ways in which you can participate in this consultation.
You can mail, fax or e-mail your comments to:
Law Commission of Ontario
Public Consultation: Legal Capacity, Decision-making and Guardianship
2032 Ignat Kaneff Building, Osgoode Hall Law School, York University
4700 Keele Street
Toronto, ON M3J 1P3
Fax: (416) 650-8418
You may also use the LCO website comments form at www.lco-cdo.org. Submissions must be received by October 17, 2014.
The LCO has developed two consultation questionnaires: one for persons directly affected by laws related to legal capacity, decision-making and guardianship, and one for families, friends, supporters and substitute decision-makers. These are available online at www.lco-cdo.org, or you may request other formats by telephone or email. You may respond to the questionnaires by mail, online, or by telephone. To respond to by telephone, please call us at:
Toronto : (416) 650-8406
Toll-free : 1 (866) 950-8406
TTY : (416) 650-8082
LCO staff would also be pleased to meet to discuss the issues raised in this discussion paper, by telephone or in person. If you wish to set up a consultation meeting with the LCO, you may contact us to discuss possible arrangements. Meetings can take place in person, by conference call or via other interactive technologies. If you have questions regarding this consultation, please call (416) 650-8406 or e-mail us at firstname.lastname@example.org.
Based on the results of our consultation phase and the LCO’s ongoing research, the LCO will prepare an Interim Report containing draft analysis and recommendations, which is anticipated to be released in Spring 2015.
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