In accordance with the concept of progressive realization, and recognizing both the challenges associated with some of the LCO’s draft recommendations and the constraints on law reform in the current environment, the LCO has identified draft recommendations which can be implemented over short, medium and longer timeframes. In identifying time frames, consideration has been given to the complexity of implementation, the likely cost of the draft recommendation, and whether the reform requires legislative change or can be implemented at the level of policy or practice.
Short-term draft recommendations are ones that could be implemented immediately, or very soon. They include recommendations that are relatively straightforward, for example, involving clarification of legislation. They can be implemented at a relatively low cost, and either do not require legislative amendments or the necessary amendments to the legislation could be made without significantly opening up the relevant statute.
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.
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.
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.
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.
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.
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.
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.
20: The Ontario Government examine the practicalities of a statutory legal framework for network decision-making which would permit formally established networks of multiple individuals, including non-family members, to work collectively to facilitate decision-making for individuals who may not meet the test for legal capacity, with a view to developing and implementing such a legal framework if feasible.
28: The Government of Ontario amend the Substitute Decisions Act, 1992 to specify that it is an offence for a person to impede or interfere with the ability of counsel appointed under section 3 to carry out their statutory function, and to codify a right for Section 3 Counsel to meet privately with their clients.
29: The Ministry of the Attorney General designate responsibility for the development of clear qualification standards, including minimum training, for lawyers appointed as Section 3 counsel under the Substitute Decisions Act, 1992.
30: Legal Aid Ontario consider the following enhancements as part of its current new initiatives in this area:
a) expanding funding of matters under the Substitute Decisions Act, 1992 and in particular of additional supports to:
i. enhance access to Section 3 Counsel;
ii. enhance access to legal representation for persons who wish to challenge the appointment or identity of a guardian and are not the subject of a section 3 appointment; and
iii. enable individuals to challenge the compliance of substitute decision-makers appointed under the Substitute Decisions Act, 1992 with their responsibilities under that statute.
b) providing additional supports to enhance the knowledge and skills of lawyers who provide Legal Aid funded services in this area of the law
37: The Ontario Government amend the Substitute Decisions Act, 1992 to require court-appointed guardians, upon request by the individual, to assist with the arrangement of assessments of capacity, no more frequently than every six months.
38: The Ontario Government amend the Substitute Decisions Act, 1992 to require guardians, should they have reason to believe that the individual has regained legal capacity, to assist the individual to have the guardianship order terminated.
40: The Ontario Government amend the Substitute Decisions Act, 1992 to permit an adjudicator to appoint a representative to make a single decision related to property or personal care.
41: The Ontario Government amend the Health Care Consent Act, 1996 to enable individuals who meet the standard for legal capacity to create a power of attorney for personal care to exclude a particular individual or individuals from appointment under the hierarchy set out in section 20 of that Act, through a written document meeting the same execution requirements as a revocation of a power of attorney for personal care under section 53 of the Substitute Decisions Act, 1992.
50: The Ontario Government amend the Health Care Consent Act, 1996 to make explicit a clear and specific duty to health practitioners to provide information to substitute decisions-makers regarding their roles and duties under the Act, as part of the process of seeking consent; the creation of a standard, statutorily mandated form may support health practitioners in carrying out this responsibility.
Medium-term draft recommendations include those that either require some investment of resources, or involve sufficient complexity that some significant further work is required to draft effective legislative provisions. Medium-term draft recommendations therefore cannot be implemented immediately, but should be undertaken as soon as resources or time permit.