Chapter III: Applying the LCO Frameworks to Ontario’s Legal Capacity, Decision-making and Guardianship Laws

1:         The Ontario Government include in reformed legal capacity, decision-making and guardianship laws provisions that are informed by the principles contained in the LCO Frameworks and which set out

a)     the purposes of the legislation; and

b)     the principles to guide interpretation of the legislation.

2:         The Ontario Government accompany reforms to legal capacity, decision-making and guardianship law with a strategy for reviewing the effect of the reforms, within a designated period of time. 

Chapter IV: Tests for Legal Capacity: Balancing Autonomy and Legal Accountability

3:         The current Ontario approach to legal capacity, based on a functional and cognitive approach, be retained.

4:         The Ontario Government amend the Health Care Consent Act, 1996 and Substitute Decisions Act, 1992 to clarify

a)     that legal capacity exists where the individual can meet the test with appropriate accommodations, and

b)     the requirement that assessments of capacity be carried out with appropriate accommodations in accordance with the approach to accommodation developed under domestic human rights law, including for example, adjustments to timing, alternative forms of communication, or extra time.
 

Chapter V: Assessing Legal Capacity: Improving Quality and Consistency

5:         The Ontario Government update

a)     the Substitute Decisions Act, 1992 to provide a clear statement as to the appropriate purposes of capacity assessment;

b)     Form C under the Substitute Decisions Act, 1992 to clarify that a Capacity Assessment with respect to property or personal care should only be conducted where there is

i.     valid cause for concern regarding the ability of the individual to make decisions and

ii.     a need for decisions to be made,

and that Assessors should know the reason that a Capacity Assessment has been requested. 

6:         The Ontario Government amend section 54 of the Mental Health Act to require physicians to conduct an examination of capacity to manage property where there are reasonable grounds to believe that the person may lack legal capacity to manage property and that the person may suffer negative consequences as a result.

7:         The Ontario Government develop and implement a strategy for removing informational, navigational, communication and other barriers, and increasing access to Capacity Assessments under the Substitute Decisions Act, 1992 for persons in remote and First Nation communities; newcomer communities; persons facing communications barriers, including among others those who are Deaf, deafened or hard of hearing and persons for whom English or French is a subsequent language; low-income individuals; and others identified as facing barriers.

8:         The Government of Ontario create official Guidelines for assessments of capacity under the Health Care Consent Act, 1996, incorporating basic principles and procedural rights.  

9: a)     The Ontario Government amend sections 17, 47.1 and 62.1 of the Health Care Consent Act, 1996 to include minimum standards for the provision of rights information to the individual who has been found to lack legal capacity, including that

i.     notice be provided of the determination of incapacity, the consequences of the incapacity, the identity of the substitute decision-maker who will be making the decision with respect to treatment, and the right to challenge the finding of incapacity;

ii.     the information be provided in a manner that accommodates the needs of the affected individual, including alternative methods of communication; and

iii.     the health practitioner provide the individual with information or referrals regarding the means of pursuing an application to the Consent and Capacity Board to challenge the finding of incapacity.

b)     The health regulatory colleges continue to fulfil their role of supporting and educating their members about how to meet these minimum standards through guidelines and professional education as appropriate.

c)           To assist in the implementation of this Recommendation, the Ontario Government amend the Health Care Consent Act, 1996 to require health practitioners, upon a finding of incapacity, to complete a simple regulated form, analogous to Form 33 “Notice to Patient” under the Mental Health Act. 

10:       The Ontario Government explore means of providing independent and expert advice on rights to persons found incapable under the Health Care Consent Act, 1996, for example by adapting and transforming some key elements of Health Justice partnerships to provide expert and accessible advocacy with health settings, or developing targeted programs for those who are most vulnerable or whose rights are most gravely at risk. 

11: a)   Within the scope of its mandate, Health Quality Ontario take the following steps to improve the quality of assessments of capacity in health care settings:

i.       encourage health care organizations to include issues related to assessment of capacity and the accompanying procedural right in their Quality Improvement Plans;

ii.     include issues related to the assessment of capacity and the accompanying procedural rights in their patient surveys;

iii.    assist partners in the health care sector in the development or dissemination of educational materials for health care organizations related to the assessment of capacity and the accompanying procedural rights; and

iv.    consider bringing specific focus to monitoring of the quality of consent and capacity issues in health care through the production of a dedicated report on this issue,

and

b)         Health Quality Ontario integrate into its initiatives as recommended by 11 (a) a concept of quality that includes respect for patient autonomy, a knowledge of the legal foundations of capacity and consent, and the promotion of patient rights. 

12:       The Ministry of Health and Long-Term Care encourage and support long-term care homes to better address their responsibilities under the Bill of Rights regarding consent, capacity and decision-making by:

a)     including information related to these issues in their annual resident and family satisfaction surveys;

b)     working with and strengthening the capacity of Residents and Family Councils to develop educational programs for residents and families on these issues; and

c)      developing a thorough and specific focus on issues related to consent, capacity and decision-making in the staff training that they provide to staff. 

13:       Within the scope of their mandates and objects, the Local Health Integration Networks use their roles in improving quality, setting standards and benchmarks and evaluating outcomes to

a)     support and encourage health services to improve information, education and training for professionals carrying out assessments of capacity;

b)     ensure effective provision of rights information; and

c)      support the provision of information and resources about their roles and responsibilities to persons identified as substitute decision-makers for treatment, admission to long-term care and personal assistance services.

14:       Should the LCO’s recommendations related to capacity and consent in the health care setting be implemented, the Government of Ontario actively monitor and evaluate their success in improving the administration of assessments of capacity and meaningful access to procedural rights, with a view to taking more wide-ranging initiatives should significant improvement not be apparent.

Chapter VI: Substitute Decision-making and Alternatives: Strengthening Decision-making Practices and Providing Options for Diverse Needs

15:       The Government of Ontario implement a statutory process that provides for processes for consent to detention in long-term care or retirement homes for persons who lack legal capacity and for whom detention is required in order to address vital concerns for security or safety, and which addresses the needs for clarity and for procedural rights in dealing with fundamental liberty interests. 

16:       The Ontario Government amend the statutory requirements for decision-making practices related to property management to

a)     clarify that the purpose of substitute decision-making for persons with respect to property is to enable the necessary decisions to provide for the well-being and quality of life of the person and to meet the financial commitments necessary enable the person to meet those ends; and

b)     require that when resources are allocated to the individual’s support, education and care, that consideration be given to prior capable wishes, or where these have not been expressed, to the values and wishes currently held regarding the individuals well-being and quality of life. 

17:       The Ontario Government amend the relevant legislation to replace the terms “substitute decision-maker” and “guardian” by the term “decision-making representative” so as to clarify that this individual is not intended to impose her or his own values in a pure best interests approach, but instead must take into account the values, preferences and life goals of the individual. 

18:       The Ontario Government take steps to clarify the scope and content of the human rights duty to accommodate as it applies to service providers with respect to legal capacity and decision-making, including by consulting with service providers and other key stakeholders.

19:       The Ontario Government enact legislation or amend the Substitute Decisions Act, 1992 to enable individuals to enter into support authorizations with the following purposes and characteristics:

a)     The purpose of the authorizations would be to enable persons who can make decisions with some help to appoint one or more persons to provide such assistance;

b)     The test for legal capacity to enter into these authorizations would require the grantor to have the ability to understand and appreciate the nature of the agreement;

c)      A standard and mandatory form should be created for these authorizations, to promote a minimum basis of universal understanding of these new instruments;

d)     Through a support authorization, the individual would be able to receive assistance with the routine decisions related to personal care and property ( such as payment of bills, banking and purchasing goods or services for the individual);

e)     Decisions made through such an appointment would be the decision of the supported person; however, a third party may refuse to recognize a decision or decisions as being that of the supported person if there are reasonable grounds to believe that there has been fraud, misrepresentation or undue influence by the supporter;

f)      Support authorizations will only be valid if they include a monitor who is not a member of supported person’s family and who is not in a position of conflict of interest, with duties and powers as set out in Chapter VII;

g)     The duties of persons appointed under such authorizations would include the following:

i.          maintaining the confidentiality of information received through the support authorization;

ii.